Nelson v. City of Stamford et al
Filing
190
ORDER denying 187 Motion for Reconsideration. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 2/23/12. (Hildebrand, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWARD NELSON and
PATRICIA NELSON,
Plaintiffs,
v.
CITY OF STAMFORD, et al.
Defendants.
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CIVIL ACTION NO.
3:09-cv-1690 (VLB)
February 23, 2012
MEMORANDUM OF DECISION DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION [Dkt. #187]
Plaintiffs, Edward and Patricia Nelson, filed this lawsuit against the
Defendant City of Stamford and several police officers of the Stamford Police
Department, including the Chief of the Stamford Police, alleging that they were
subjected to excessive force along with twenty other causes of action. On
January 25, 2012 this Court granted in part and denied in part the Defendants’
motions for summary judgment against Plaintiffs [Dkt. #141, #144]. Currently
pending before the Court is Mr. Nelson’s Motion for Reconsideration [Dkt. #187].
Mr. Nelson’s Motion for Reconsideration contends that it was clear error for
the Court to grant Defendants’ motion for summary judgment as to his claim of
malicious prosecution where one of the charges for which he was arrested was
withdrawn by the prosecution. At the time of his arrest, Mr. Nelson was charged
with Assault in the Third Degree, Interference with an Officer/Resisting Arrest,
and Breach of Peace in the Second Degree. [Dkt. #160, Patricia Nelson’s
Memorandum in Opposition to Summary Judgment, Ex. 29, Stamford Police
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Officer Dogali/Connelly Incident Report]; see also [Dkt. #159, Edward Nelson’s
Memorandum in Opposition to Summary Judgment, Ex. 1, Rule 56 Stmt., ¶¶1920]. Although Mr. Nelson admits that he was found guilty after trial of Interfering
with an Officer/Resisting Arrest and Breach of Peace in the Second Degree, Mr.
Nelson contends that the charge of Assault in the Third Degree was withdrawn by
the prosecution and he therefore received a favorable termination to substantiate
his claim of malicious prosecution. Additionally, Mr. Nelson relies on the Second
Circuit’s decision in D’Angelo v. Kirschner, 288 Fed.Appx. 724, 726 (2d Cir. 2008)
for the proposition that even where probable cause to arrest exists, exculpatory
circumstances discovered after an arrest can preclude a finding of probable
cause to prosecute. Mr. Nelson argues that exculpatory facts which came to light
after his arrest undermine any probable cause which may have existed for his
arrest.
Contrary to Mr. Nelson’s assertion that the Court erroneously overlooked
the question of probable cause as to the charge of Assault in the Third Degree,
the Court failed to articulate, but did consider whether probable cause existed for
this charge.
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
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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 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). “When determining whether probable cause exists
courts must consider those facts available to the officer at the time of the arrest
and immediately before it, as probable cause does not require absolute certainty.
Id. 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).
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“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).
It is undisputed that on October 22, 2006 at 12:39 am, Anthony Hinton, an
employee of the club at which the Plaintiffs were located, flagged down
Defendant Stamford Police Officer Dogali who was driving down Greenwich
Avenue in front of the club while on patrol in the area and informed him that he
had observed a black male punch a black female in the face. [Dkt. #160, Ex. 29,
Defendant Dogali Stamford Police Incident Report]. It is apparent that this fact is
undisputed because Plaintiffs’ submitted Officer Dogali’s police incident report
describing the circumstances of his arrival on the scene, including Hinton’s tip,
as an exhibit to their Memorandum in Opposition to Summary Judgment. See id.
Moreover, although Mr. Nelson’s Rule 56 Statement, paragraph 2, denies that
Hinton told Officer Dogali that he observed Mr. Nelson punch a black female in
the face, this denial cites to no supporting evidence and is therefore deemed
admitted. See United States District Court, District of Connecticut, Local Rules of
Civil Procedure Rule 56(a)(3) (“Counsel and pro se parties are hereby notified that
failure to provide specific citations to evidence in the record as required by this
Local Rule may result in the Court deeming certain facts that are supported by
the evidence admitted in accordance with Rule 56(a)(1) . . .”). Officer Dogali’s
police incident report, offered into evidence by the Plaintiffs, further provides that
after Officer Dogali’s arrival on the scene, Mr. Hinton identified the black male he
had observed punching a black female, pointing towards Mr. Nelson as he walked
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back towards the club. [Dkt. #160, Ex. 29, Defendant Dogali Stamford Police
Incident Report.
The undisputed facts further establish that Officer Dogali then approach
Mr. Nelson and asked him if he was involved in a dispute with a female. [Dkt.
#159, Edward Nelson’s Memorandum in Opposition to Summary Judgment, Ex. 1,
Rule 56 Stmt., ¶3]. Mr. Nelson admits that he responded by informing Officer
Dogali that he was studying to be an attorney and did not need to answer the
Officer’s questions. See id., at ¶4. Officer Dogali then attempted to place Mr.
Nelson under arrest, and placed Mr. Nelson’s right hand in a handcuff. See id., at
¶5. However, Mr. Nelson admits that he “brace[d]-up or passively rest[ed] PO
Dogali’s effort to place Mr. Nelson’s left hand behind his back.” Id. at ¶6.
These undisputed facts as to the circumstances of Mr. Nelson’s arrest
plainly demonstrate that Officer Dogali had probable cause to arrest Mr. Nelson.
As the Second Circuit has held, “information gleaned from informants can be
sufficient to justify the existence of probable cause.” Panetta v. Crowley, 460 F.3d
388 (2d Cir. 2006). Moreover, “it is well-established that a law enforcement official
has probable cause to arrest if he received his information from some person,
normally the putative victim or eyewitness.” Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000). Where probable cause is predicated upon an eyewitness tip,
“[t]he reliability or veracity of the informant and the basis for the informant’s
knowledge are two important factors.” Panetta, 460 F.3d at 395. “[I]nformation
provided by ‘an identified bystander with no apparent motive to falsify’ has
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‘peculiar likelihood of accuracy.’ ” Id. (quoting Caldarola v. Calabrese, 298 F.3d
156, 163 (2d Cir. 2002).
The undisputed facts establish that Officer Dogali was flagged down by
Hinton, an eyewitness, who reported that he had observed a black male punch a
black female in the face, and then identified Mr. Nelson as the black male who
threw the punch. As an employee of the club posted outside of the club to
maintain order at the club’s entrance, Mr. Hinton had no apparent motive to falsify
his eyewitness report. In addition to this eyewitness tip and identification of Mr.
Nelson, Mr. Nelson then admits that he refused to answer Officer Dogali’s
questions and resisted arrest, refusing to place his right arm behind his back and
physical resisting Officer Dogali’s attempt to place his arm behind his back. In
light of these facts, probable cause existed for Mr. Nelson’s arrest as Officer
Dogali had reason to believe, as a result of an eyewitness tip and his own
observation of Mr. Nelson resisting arrest, that an offense had been committed.
See Panetta, 460 F.3d at 395.
Moreover, Mr. Nelson’s assertion in his motion for reconsideration that
exculpatory facts which arose after his arrest preclude a finding of probable
cause to prosecute the charge of Assault in the Third Degree is wholly
unpersuasive. Although the Second Circuit “has hinted in a nonprecedential
order that exculpatory circumstances discovered after an arrest can dissolve
probable cause to prosecute,” the exculpatory facts referred to by Mr. Nelson do
not eviscerate the well-founded probable cause to prosecute the charge against
him of Assault in the Third Degree. Kilburn v. Village of Saranac Lake, 413
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Fed.Appx. 362 (2d Cir. 2011) (citing D’Angelo, 288 Fed.Appx. at 726). The
exculpatory facts referred to by Mr. Nelson consist of several instances in which
Mrs. Nelson stated, following the Plaintiffs’ arrest on October 22, 2006, that Mr.
Nelson did not strike her. However, a person of reasonable caution would not
accord great weight to Mrs. Nelson’s recantation, given that victims of domestic
violence often recant previously raised accusations of their abuse. Moreover,
since its decision in D’Angelo, the Second Circuit has significantly scaled back
its statement in dicta that exculpatory circumstances after an arrest can dissolve
probable cause to prosecute, referring to that comment as “a hint” in a “nonprecedential order,” and reaffirming the general principle that “probable cause to
arrest is generally construed as probable cause to prosecute as well.” See
Killburn, 413 Fed.Appx. at 364. Therefore, in light of the well-founded probable
cause for Mr. Nelson’s arrest and the weakness of the purportedly exculpatory
evidence arising following his arrest, the Court finds that probable cause existed
for Mr. Nelson’s prosecution for the charge of Assault in the Third Degree.
Additionally, the Court notes that Mr. Nelson’s claim of malicious
prosecution against the Defendants is also deficient as a matter of law to the
extent that Mr. Nelson has failed to present any evidence to indicate that the
Defendant Officers played any role in prosecuting Mr. Nelson for the charge of
Arrest in the Third Degree where they were merely the arresting officers and
officers involved in the Plaintiff’s detention on the night of the arrest. See
Barcomb v. Sabo, 2011 WL 1770795 at *11 (N.D.N.Y. May 9, 2011) (dismissing
plaintiff’s causes of action for malicious prosecution against a police trooper,
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police chief, and an assistant police chief, on the basis of a lack of evidence to
suggest that the defendants played any role in prosecuting the relevant charge).
The lack of any evidence of personal involvement is fatal to a claim under §1983
given the well-established rule in this Circuit that “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under §1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)
Lastly, Mr. Nelson’s motion for reconsideration asserts that the Court’s
decision on summary judgment was manifestly unjust because it overlooked Mr.
Nelson’s claims against Moja, LLC, Sean Evans, and Anthony Hinton. This
assertion is misguided. The Court’s decision on summary judgment did not
address Mr. Nelson’s claims against those three parties because the pending
motions for summary judgment were filed by the Defendant City of Stamford,
Stamford Police Department, and the defendants affiliated with the Stamford
Police Department and not by those three specific defendants. As Defendants
Moha, LLC, Sean Evans, and Anthony Hinton did not file a motion for summary
judgment, such claims were not before the Court. Therefore to the extent that the
Court referred to Mr. Hinton as a “security officer,” the reference was not a
conclusion as a matter of law that Mr. Hinton functioned as “security officer” as
defined under Connecticut law, it was merely a descriptive reference.
IT IS SO ORDERED.
_______/s/__________
Hon. Vanessa L. Bryant
United States District Judge
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Dated at Hartford, Connecticut: February 23, 2012
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