Bennett v. Pascone et al
Filing
36
ORDER granting 33 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 4/1/2013. (Gillenwater, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANGELOPE BENNETT,
:
Plaintiff,
:
v.
:
OFFICER R. PASCONE and
OFFICER F. DELBUONO,
:
:
Defendants.
CASE NO. 3:09CV2139 (RNC)
:
RULING AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 1983
against Bridgeport police officers Robert Pascone and Frank
Delbuono in their individual capacities claiming a violation of
his right to be free from malicious prosecution.1
Defendants
have moved for summary judgment contending that the prosecution
of the plaintiff was supported by probable cause and there is no
evidence of actual malice.
I agree with the defendants that
their action was supported by probable cause and therefore grant
the motion.
I.
Summary Judgment
Summary judgment may be granted when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S.
1
The complaint also includes § 1983 claims for excessive
force and false arrest in violation of the Fourth Amendment but
those claims have been dismissed by agreement as time-barred
leaving only the malicious prosecution claim.
1
317, 322 (1986).
To avoid summary judgment, the plaintiff must
point to evidence that would permit a jury to return a verdict in
his favor.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
In determining whether this standard is met, the
evidence must be viewed in the light most favorable to the
plaintiff.
II.
Id. at 255.
Facts
The parties' submissions establish the following relevant
facts.
On December 16, 2006, at approximately 12:52 a.m., the
defendants were on duty in a patrol car on Railroad Avenue in
Bridgeport.
They heard calls over the radio that a dark colored
van had been reported leaving the scene of a burglary and that
the van was traveling south on Wordin Avenue.
The radio
dispatcher stated that a civilian named Jose had reported that
two black males had just broken into a construction site and
placed construction equipment in the van.
On reaching the intersection of Railroad Avenue and Wordin
Avenue, the defendants saw a van fitting the dispatcher's
description.
They activated their emergency lights and siren in
an attempt to conduct an investigative stop.
The plaintiff was
driving the van accompanied by his brother Jimmy.
The van pulled
to the side of the road in apparent compliance with the officers'
attempt to conduct a stop.
As the defendants prepared to exit
the patrol car, however, the van sped away and drove onto I-95.
2
After a chase, the van left the highway and the vehicle pursuit
came to an end.
Plaintiff's brother then tried to run away but
he was apprehended.
Following the apprehension of the plaintiff and his brother,
a police sergeant returned to the location of the reported
burglary.
He reported to the defendants what he found at the
construction site.
He stated that doors and windows at the site
were locked and a door had been forced open.
A search of the
plaintiff's van revealed an air compressor, chain saw, electric
jack hammer, laser transit and nail gun.
The defendants arrested the plaintiff and his brother and
prepared a report of the incident.
The charges against the
plaintiff and his brother, as set forth in the report, were:
burglary third under Conn. Gen. Stat. § 53a-103; larceny second
under Conn. Gen. Stat. § 53a-123; criminal mischief second under
Conn. Gen. Stat. § 53a-116; interfering with police under Conn.
Gen. Stat. § 53a-167; reckless operation of a vehicle under Conn.
Gen. Stat. § 14-222a; and engaging police in pursuit under Conn
Gen. Stat. § 223b.
The report was signed the day of the
plaintiff's arrest (i.e. December 16, 2006).
After the report was prepared, Officer Delbuono had no
further involvement in the case.
On or about December 18, 2006,
Officer Pascone returned to the location of the reported breakin.
While there, he spoke with the owner of the construction
3
company, who reported that one of his buildings had been broken
into on or about December 16.
After this interview, the case was
turned over to the state's attorney and Officer Pascone had no
further involvement in the matter.
In June 2007, the plaintiff's brother pleaded guilty to the
charge of burglary third.
In September 2007, the plaintiff
pleaded guilty to the charges of interfering with police and
engaging police in pursuit.
The other charges against the
plaintiff were nolled.
III.
Discussion
In order to prevail on his Fourth Amendment claim under §
1983, the plaintiff must establish the following elements of a
malicious prosecution claim under Connecticut law: (1) the
defendants initiated or procured a criminal proceeding against
him, (2) the criminal proceeding has terminated in his favor, (3)
the defendants acted without probable cause, and (4) the
defendants acted with actual malice, primarily for a purpose
other than that of bringing an offender to justice.
See Salatto
v. City of Milford, No. 3:08cv1071 (MRK), 2012 WL 774612, at *9
(D. Conn. Mar. 7, 2012).
In moving for summary judgment,
defendants do not dispute the first two elements.2
2
With regard
Under Connecticut law, a nolle may be sufficient to
satisfy the second element of a malicious prosecution claim.
Salatto, 2012 WL 774612, at *9. “However, if a nolle is entered
as part of a plea bargain or other arrangement with a defendant,
it will preclude a subsequent action for malicious prosecution.”
4
to the other two elements, the defendants contend that the
plaintiff cannot prove that they acted without probable cause or
with actual malice.
Plaintiff concedes that defendants had
reasonable suspicion warranting the investigative stop.
However,
he contends that by the time the defendants charged him, there
was no probable cause to prosecute him for burglary, larceny and
criminal mischief.
Plaintiff argues that "by the time [the defendants] charged
him there not only was no probable cause to prosecute him for
burglary or larceny, it was clear he actually was innocent of
those charges."
Pl.'s Mem. in Opp'n to Summ. J. at 6.
This
argument implies that after the defendants prepared their report
of the incident, but before the plaintiff was arraigned, the
defendants obtained exculpatory information establishing that the
charges of burglary, larceny and criminal mischief lacked
probable cause.
It is true that under Connecticut law, whether
probable cause existed must be measured as of the time the
judicial proceeding commenced against the plaintiff, rather than
the time of his warrantless arrest.
See Luzzi, 2011 WL 6780968,
Id.; see also Holman v. Cascio, 390 F. Supp. 2d 120, 123-24 (D.
Conn. 2005). It is unclear whether the charges at issue in this
case were nolled pursuant to a plea bargain. But the defendants
do not seek summary judgment on the ground that the plaintiff
cannot satisfy the second element of his claim. Accordingly, I
assume without deciding that this element is satisfied. See
Luzzi v. Hirsch, No. 3:10cv481 (MRK), 2011 WL 6780968, at *7 (D.
Conn. Oct. 20, 2011).
5
at *7.
It is undisputed, however, that the defendants prepared
the incident report the day of the arrest, Officer Delbuono had
no further involvement in the matter, and Officer Pascone's
involvement ended two days later following his interview of the
owner of the construction company where the reported break-in was
confirmed.
There is no allegation or evidence that exculpatory
evidence became known to either officer following the preparation
of the report.
In this situation, the plaintiff's claim that the
officers acted without probable cause is properly tested by
considering the information known to them when they prepared the
report.
See D’Angelo v. Kirschner, 288 F. App’x 724, 726 (2d
Cir. 2008) (“Ordinarily, in the absence of exculpatory facts
which became known after an arrest, probable cause to arrest is a
complete defense to a claim of malicious prosecution.”); see also
Kennedy v. Chamberland, No. 3:07-CV-214 (RNC), 2010 WL 1286789,
at *6 (Mar. 30, 2010).
The undisputed facts set forth above would require a jury to
find that the officers had probable cause for the disputed
charges when the report containing the charges was prepared soon
after the plaintiff's arrest.
The plaintiff concedes that the
investigative stop of his van was justified by reasonable
suspicion and that the van was the one involved in the reported
burglary.
The plaintiff's flight to avoid apprehension, the
sergeant's report that a door had been forced open at the scene
6
of the reported break-in, and the equipment found in the
plaintiff’s van, taken together, provided probable cause for each
of the charges.
this.
Indeed, the plaintiff does not really dispute
He appears to rely instead on the implied claim discussed
above that the officers obtained exculpatory information
establishing a lack of probable cause.
Because that claim lacks
evidentiary support, summary judgment is appropriate.3
IV.
Conclusion
Accordingly, the defendants’ motion for summary judgment is
hereby granted.
The Clerk may close the file.
So ordered this 1st day of April 2013.
/s/RNC
Robert N. Chatigny
United States District Judge
3
Plaintiff alleges that the defendants’ report of the
incident contains false statements concerning the circumstances
of his apprehension. However, those statements have no bearing
on the issue of probable cause.
7
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