Ruttkamp v. Delosreyes et al
Filing
61
ORDER denying 49 Motion for Reconsideration; denying 50 Motion for Reconsideration; denying 51 Motion for Summary Judgment. Signed by Judge Stefan R. Underhill on 8/20/2012. (Carter, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHLOMIT RUTTKAMP,
Plaintiff,
No. 3:10-cv-392 (SRU)
v.
RUPERT DE LOS REYES,
LAWRENCE MERRILL, JR.,
KAREN M. GABIANELLI, and
RICHARD MULHALL,
Defendants.
RULING ON DEFENDANTS’ MOTIONS FOR RECONSIDERATION AND
SECOND MOTION FOR SUMMARY JUDGMENT
Plaintiff Shlomit Ruttkamp brought this civil rights action, pursuant to 42 U.S.C. § 1983,
alleging violations of her Fourth and Fourteenth Amendment rights after she was twice arrested
and later committed for an emergency medical evaluation over the course of a chaotic weekend
in July 2009. The Complaint sought damages on multiple claims for unlawful search and
seizure, false imprisonment, false arrest, and malicious prosecution. On January 24, 2012, I
granted summary judgment in favor of the defendants on all claims except the false arrest and
malicious prosecution claims arising from the July 5, 2009 arrest for interfering with a police
officer in violation of Conn. Gen. Stat. § 53a-167a.1 With regard to the surviving claims, I
concluded that, on the record before me, genuine issues of material fact remained on the
elements of probable cause and favorable termination.
1
See Tr. of Summ. J. Hrg. (Jan. 21, 2012), at 31-32 (doc. # 48). I also granted summary
judgment in favor of Defendant De Los Reyes on all claims, including those arising out of the
July 5, 2009 arrest, due to his lack of personal involvement. See id. at 2-3.
1
Defendants Lawrence Merrill2, Karen Gabianelli, and Richard Mulhall (collectively
“Defendants”) moved for reconsideration of my ruling on probable cause (docs. # 49 and # 50).
Shortly thereafter, Defendants filed, with leave of the Court, a second motion for summary
judgment, supported by several supplemental affidavits, on the issue of favorable termination
(doc. # 51). As explained more fully below, Defendants’ motions for reconsideration are without
merit and are therefore DENIED. Further, because factual disputes remain on the element of
favorable termination, Defendants’ second motion for summary judgment must also be
DENIED.
I. Factual Background
The facts set forth below are taken from the parties’ Local Rule 56(a) Statements (docs. #
29-18, # 30-1, # 31-1, # 38-1, and # 51-2) and supporting affidavits. The facts recited are
undisputed unless otherwise indicated. Because this case is currently at the summary judgment
stage, disputed facts are considered in the light most favorable to Ms. Ruttkamp, the nonmoving
party. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); DeFabio v. E.
Hampton Union Free Sch. Dist., 623 F.3d 71, 74 (2d Cir. 2010) (per curiam).
Plaintiff Shlomit Ruttkamp (“Shlomit”) was born and raised in Israel, but moved to the
United States in the 1980s to live with her then-boyfriend, William Ruttkamp (“Billy”), in
Stamford, Connecticut. The couple had one daughter, Tracy Ruttkamp (“Tracy”), in 1988 and
later married. In 1997, the family moved into a house in Westbrook, Connecticut where Shlomit
and Billy eventually started a landscaping business. See State Trooper Defs.’ Local R. 56(a)(1)
Stmt. ¶¶ 1-5.
2
On July 10, 2012, after the instant motions were filed and fully briefed, the parties
stipulated to the dismissal of Lawrence Merrill as a defendant in this case (doc. # 59). I
approved the stipulation on July 12, 2012 (doc. # 60). Accordingly, the only remaining
defendants are Karen Gabianelli and Richard Mulhall.
2
As the years passed, Billy and Shlomit’s relationship became more and more tumultuous.
Billy developed drug and alcohol problems, Shlomit had anger management issues, and both
were reportedly physically and verbally abusive. See id. ¶ 6; Dep. of Shlomit Ruttkamp, at 8,
attached as Ex. 1 to Pl.’s Br. in Opp’n (doc. # 30-3); Aff. of Tracy Ruttkamp, at ¶ 3, attached as
Ex. B. to State Trooper Defs.’ Mot. for Summ. J. (doc. # 29-3). The marriage deteriorated even
further when a friend, Susan Anewalt, moved into the family’s Westbrook home and became
sexually involved with both Shlomit and Billy. See Aff. of Tracy Ruttkamp, at ¶ 3.
In June 2009, Tracy, then twenty-one years old, told Billy she could no longer stand to
live in the Westbrook house because her mother was too controlling and because she could no
longer tolerate the unhealthy sexual relationships and physical abuse going on in the home. Id. at
¶ 5. Billy decided to leave Shlomit and file for divorce. He found an apartment in Chester, and
Tracy agreed to sign the lease and move in with him. Id.
In the early morning of July 3, 2009, Billy and Tracy moved out of the Westbrook house
and into the Chester apartment. A few hours later, Shlomit was served with divorce papers and
became extremely upset. Shlomit appeared at Tracy’s place of employment and an argument
ensued. Id. at ¶ 6. The police were eventually called to the scene, but the officers found no
reason to detain Shlomit or Tracy. See Incident Rep., at 69, attached as Ex. C. to State Trooper
Defs.’ Mot. for Summ. J. (doc. # 29-4). Later that evening, while staying with Billy at the
Chester apartment, Tracy received multiple voicemails from Shlomit on her cellphone in which
her mother allegedly threatened to kill herself, Billy and Tracy. 3 See State Trooper Defs.’ Local
R. 56(a)(1) Stmt. ¶ 16.
3
Shlomit denies that she ever threatened to kill Tracy, but admits that she may have left
voicemails threatening to kill herself and Billy. See Pl.’s Local R. 56(a)(2) Smt. ¶ 16.
3
A.
July 4, 2009 Arrest
On July 4, 2009, Shlomit apologized to Tracy for the previous day’s events and
convinced Tracy to tell her where Tracy and Billy were now living. Id. ¶ 19. Later that evening,
Shlomit accompanied Tracy to the Chester apartment, but when Shlomit attempted to enter the
home against Billy’s will, a physical altercation ensued. Neighbors, hearing the commotion,
called the police. See id. ¶ 16; Pl.’s Local R. 56(a)(2) Stmt. ¶ 23. The police arrived, including
defendant Trooper Mulhall,4 and detained Billy.5 The police then proceeded to arrest Shlomit
and charged her with Disorderly Conduct and Simple Trespass. See Investigation Rep., attached
as Ex. 2 to Pl’s Br. in Opp’n (doc. # 30-3). After Shlomit was released from custody, Tracy
drove Shlomit to the Westbrook house at approximately 4:00 a.m. and decided to stay the night
with her mother because Tracy did not feel safe staying with Billy. See State Trooper Defs.’
Local R. 56(a)(1) Stmt. ¶ 25.
B.
July 5, 2009 Arrest
On the morning of July 5, 2009, Billy grew concerned for Tracy and telephoned his
sister, Cindy Mammone. Billy informed Mammone of the events of the preceding days and
expressed his fear that Shlomit might be holding Tracy against her will. Id. at 27. After Tracy
failed to respond to several text messages, Mammone called a relative, Trooper De Los Reyes, at
his home while he was off duty. Id. ¶¶ 29-30. After a short conversation, both De Los Reyes
4
Trooper Nicholas Tewell was also on the scene, but he is not a named defendant in this
suit. See Compl., at 1.
5
Shlomit contends that, although the police “appeared” to arrest Billy, he was not
actually arrested. See Pl.’s Local R. 56(a)(2) Stmt. ¶ 23. However, the police report of Trooper
Nicholas Tewell states that Billy was arrested and charged with Disorderly Conduct as well as
Third Degree Assault. See Investigation Rep., attached as Ex. Q to State Trooper Defs.’ Reply
Br. (doc. # 36).
4
and Mammone placed calls to the Westbrook police and expressed their concerns to Defendant
Sergeant Gabianelli. Sergeant Gabianelli, in turn, decided to do a well-being check on Tracy at
the Westbrook home. See Aff. of Karen Gabianelli, at ¶ 6, attached as Ex. F to State Trooper
Defs.’ Mot. for Summ. J. (doc. # 29-7).6
Defendants Trooper Mulhall and Constable Merrill were the first officers to arrive at the
Westbrook home. The officers asked to enter the home to check on Tracy’s well-being and
Shlomit agreed. See State Trooper Defs.’ Local R. 56(a)(1) Stmt. ¶ 38. Shlomit let the officers
into the home and told them that Tracy was upstairs in her bedroom. Id. Constable Merrill went
upstairs to check on Tracy, while Trooper Mulhall stayed with Shlomit in the foyer of the house.
Id. ¶ 39. Merrill asked Tracy’s permission to enter the bedroom to speak with her, and she
agreed. Thereafter, Sergeant Gabianelli arrived at the scene and went straight to Tracy’s
bedroom. Gabianelli asked Tracy if she was being held against her will and Tracy answered in
the negative. Id. ¶ 44. Believing the matter was over, Gabianelli and Merrill proceeded
downstairs and made their exit.
Meanwhile, Mammone learned from Billy that Shlomit had called Tracy and left
threatening voicemail messages on her cell phone. Id. ¶ 52. Mammone telephoned the
Westbrook police and asked them to pass this information on to Sergeant Gabianelli. Back at the
Westbrook home, as she walked across the front lawn, Gabianelli received a call from State
Police Troop F asking her to telephone their office. Gabianelli called the dispatcher and was
informed about the threatening voicemail messages that Shlomit allegedly left on Tracy’s cell
phone. Id. ¶¶ 53-55.
6
Sergeant Gabianelli thereafter confirmed that the Old Saybrook Police had been called
on July 3, 2009 when Shlomit pulled Tracy out of her workplace. See Aff. of Karen Gabianelli,
at ¶ 6.
5
After learning this information, Gabianelli turned back and approached Tracy on the
lawn. Id. ¶ 56. Gabianelli told Tracy that her father was concerned because Shlomit had been
leaving threatening voicemails on her cell phone.7 Id. Gabianelli asked Tracy if Shlomit had left
threatening messages, but Tracy hesitated because Shlomit was staring at her.8 Id. ¶ 58.
Sergeant Gabianelli then asked Tracy if she would play the messages for her. Shlomit testified
as follows:
[W]hen Officer Gabianelli was asking [Tracy] to play the thing, she was staring at
me. She wasn’t even intending to do it. She was staring at me. I said, “Tracy,
you don’t have to do it. You have rights. They have to have a search warrant” . .
. . After Sergeant Gabianelli said, “Don’t listen to her, play them, play them[,]” I
said, “Don’t. They will get me in trouble. I can go to jail.”
Dep. of Shlomit Ruttkamp, at 70, attached as Ex. 1 to Pl.’s Br. in Opp’n (doc. # 30-3).9 At her
deposition, Shlomit also stated that when she made these verbal protestations she was at least
five feet away from her daughter and never made any physical attempt to take the cell phone
7
The cell phone in question belonged to Tracy and was under Billy’s account. See State
Trooper Defs.’ Local R. 56(a)(1) Stmt. ¶ 57.
8
According to Shlomit, neither she nor Tracy ever confirmed to Sergeant Gabianelli that
threatening messages were, in fact, left on Tracy’s cell phone. Dep. of Shlomit Ruttkamp, at 5153, attached as Ex. 1 to Pl.’s Br. in Opp’n (doc. # 30-3).
9
Tracy described these events slightly differently. She testified:
I agreed [to play the messages]. No one coerced me. Of my own free will, I took
out my phone and, as I was getting ready to dial my voicemail, my mother said,
“Don’t play that, they will send me to jail. Do you want me to go to jail? You will
never see me again.” I continued to dial the phone and put it on speaker phone so
that everyone could hear the voicemails. My mother then got jumpy and screamed
louder as she waived her hands, “they need a warrant, they need a warrant. Don’t
let them do that!”
Aff. of Tracy Ruttkamp, at ¶ 18, attached as Ex. B. to State Trooper Defs.’ Mot. for Summ. J.
(doc. # 29-3). Shlomit’s version is credited for purposes of the present motions.
6
from her.10 See id. at 54, 73. Nevertheless, Tracy never played the voice messages for the
officers. Shlomit was then arrested for interfering in violation of Conn. Gen. Stat. § 53a-167a.
Sometime later, after Shlomit had been transported via patrol car to the booking station,
Sergeant Gabianelli had Shlomit involuntarily committed for a mental health evaluation given
her erratic behavior and suicidal ideations. See State Trooper Defs.’ Local R. 56(a)(1) Stmt. ¶¶
63-64.
C.
Nolle Prosequi in Connecticut Superior Court
The officers referred the criminal matters to Senior Assistant State’s Attorney Barbara
Hoffman who was responsible for prosecuting the case. In an affidavit submitted to the Court,
Hoffman stated that she agreed to enter a nolle prosequi on both sets of charges (arising from
both the July 4, 2009 and the July 5, 2009 incidents) because Shlomit completed counseling that
was recommended by the Family Relations Division of the Connecticut Judicial Branch
(hereinafter “Family Relations”). See Aff. of Barbara Hoffman, at ¶ 14, attached as Ex. K to
State Trooper Defs.’ Mot. for Summ. J. (doc. # 29-12). On October 23, 2009, Assistant State’s
Attorney Brian Kennedy appeared in Superior Court before Judge Vitale and entered the nolle.
See Tr. of Proceedings, attached as Ex. L to State Trooper Defs.’ Mot. for Summ. J. (doc. # 2913). The transcript of the hearing itself, however, contained no mention of the nolle being
conditional on the completion of counseling or any other requirement. See id. Moreover, when
Shlomit was asked at her deposition whether the prosecutor agreed to nolle the case because she
10
Shlomit denied making any attempt to swat the phone away from Tracy’s hands. Dep.
of Shlomit Ruttkamp, at 73. Further, Shlomit testified that she never attempted to reach for
Tracy or touch the officers. Id. at 75.
7
had completed family counseling, she replied in the negative. See Dep. of Shlomit Ruttkamp, at
96.11
II.
Procedural Background
On March 16, 2010, Shlomit filed the instant lawsuit, seeking damages under 42 U.S.C.
§ 1983 for unlawful search and seizure, false arrest, false imprisonment, and malicious
prosecution. See Compl. (doc. # 1). Defendants later moved for summary judgment on all
claims (docs. # 29 and # 31).
At a hearing held on January 24, 2012, I granted summary judgment in favor of
Defendants in substantial part, but denied summary judgment on the false arrest and malicious
prosecution claims arising from the July 5, 2009 arrest for interfering under Conn. Gen. Stat. §
53a-167a. See Tr. of Summ. J. Hrg. (doc. # 48). As I stated in my oral ruling, the claim for false
arrest survived summary judgment “because the officers lacked probable cause to arrest for
interference with a police officer, because that arrest was based only on the plaintiff’s verbal
protestations or verbal pleading to her daughter not to turn over a cell phone, which is not
sufficient under decisions of the Connecticut Supreme Court to sustain a claim for interference
with a police officer under Connecticut Law.” See id. at 4. Further, the officers were not entitled
to qualified immunity because, under clearly established Connecticut law, verbal interference
alone does not violate section 53a-167a unless “fighting words” are used. See id. at 5-9 (citing
State v. Williams, 205 Conn. 456 (1987)). Lastly, the claim for malicious prosecution survived
because “there [was] a genuine issue of material fact with respect to whether the prosecution
11
Specifically, when asked at her deposition whether the prosecutor agreed to nolle the
case because she had gone to family counseling, Shlomit responded: “No, no. They just agreed
to nolle the case because they felt that it was to be nolled. Actually, I went to see the counselor
before the nolle. . . . Actually, my lawyer suggested to me before we even went into the family
court to look for a counselor.” Dep. of Shlomit Ruttkamp, at 96.
8
against the plaintiff for that arrest terminated in her favor.” Id. Specifically, there was
conflicting evidence in the record before me on whether the nolle entered pursuant to a
bargained-for exchange with the plaintiff, and thus factual disputes remained on the issue of
favorable termination. After issuing the ruling, I granted Defendants request for leave to file a
second motion for summary judgment on the narrow issue of favorable termination if Defendants
were able to supplement the record with additional affidavits showing the nolle was, in fact,
entered pursuant to a bargained-for exchange. Id. at 27.
On February 21, 2012, Defendants moved for reconsideration of my ruling on probable
cause (docs. # 49 and # 50). Shortly thereafter, on February 24, 2012, Defendants filed a second
motion for summary judgment on the issue of favorable termination, supported by several
supplemental affidavits (doc. # 51).
III.
Defendants’ Motions for Reconsideration
I begin by addressing Defendants’ motions for reconsideration.12 As explained more
fully below, both motions lack merit and are therefore denied.
A.
Standard of Review
The standard for granting motions for reconsideration is strict. Motions for
reconsideration “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked — matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration will not be granted where the party merely
seeks to re-litigate an issue that has already been decided. Id. The three major grounds for
granting a motion for reconsideration are: (1) an intervening change of controlling law, (2) the
12
Both motions seek identical relief, but each is supported by different arguments and
case citations.
9
availability of new evidence, or (3) the need to correct a clear error or prevent manifest injustice.
Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citing 18
CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 4478).
B.
Discussion
In their motions for reconsideration, Defendants contend that I erred in determining that
genuine issues of material fact remained on whether the officers had at least arguable probable
cause to arrest Shlomit for interfering on July 5, 2009.13 Defendants, however, have not
introduced any controlling law or particular facts that I overlooked in considering their motions
for summary judgment, nor have they otherwise indicated a manifest injustice requiring
reconsideration. Rather, the proffered grounds for reconsideration are nothing more than
attempts to relitigate issues previously decided, see Shrader, 70 F.3d at 257, or attempts to raise
arguments that should have been raised before my ruling. See Packer v. SN Servicing Corp., 250
F.R.D. 108, 112 (D. Conn. 2008) (“Motions for reconsideration are not designed to allow parties
to make arguments that they could have and should have made before the court ruled.”).
Nonetheless, I briefly address each of Defendants’ arguments below.
It is axiomatic that probable cause provides an arresting officer with an absolute defense
13
Defendants wrongly assert that “the Court, sua sponte, also raised that Shlomit’s verbal
conduct of trying to convince her daughter not to turn over evidence to the police is protected by
the First Amendment.” See Mem. of Law in Supp. of Joint Mot. for Reconsideration (doc. # 491), at 3. Defendants, frankly, misapprehend the basis of my ruling. I never raised, nor was there
ever any need to raise, a separate First Amendment challenge to Shomit’s arrest for verbal
interference. The Connecticut Supreme Court has already limited the scope of section 53a-167a
to proscribe only physical conduct and “fighting” words. See State v. Williams, 205 Conn. 456,
473-76 (1987) (“To avoid the risk of constitutional infirmity, we construe § 53a-167a to
proscribe only physical conduct and fighting words that by their very utterance inflict injury or
tend to incite an immediate breach of the peace.”) (internal quotation omitted). Thus, I merely
applied controlling Connecticut law—law that has been clearly established for more than twenty
years—to conclude that Defendants lacked probable cause to arrest Shlomit for interfering based
on verbal statements that all parties agree did not amount to “fighting” words.
10
to claims of false arrest and malicious prosecution. Caldarola v. Calabrese, 298 F.3d 156, 161
(2d Cir. 2002). Probable cause exists if the defendants had “knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in the belief that an
offense ha[d] been committed by the person to be arrested.” Panetta v. Crowley, 460 F.3d 388,
395 (2d Cir. 2006) (internal citations omitted). “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, 246 (D. Conn. 2003) (citing Weyant v. Okst, 101 F. 3d 845, 852 (2d Cir. 2003)).
Where there are critical facts in dispute, however, the case is one for the jury. Walczyk v. Rio,
496 F.3d 139, 157 (2d Cir. 2007).
In the case at bar, Shlomit’s claims turn on whether Defendants had probable cause, or at
least arguable probable cause, to arrest her for interfering. Under Connecticut law, a person is
guilty of interfering with an officer “when such person obstructs, resists, hinders or endangers
any peace officer . . . in the performance of such peace officer’s . . . duties.” Conn. Gen. Stat. §
53a-167a. The law prohibits any action that intentionally meddles in or hampers a police officer
in the performance of her duties. State v. Williams, 205 Conn. 456, 471-72 (1987); White v.
Wortz, 66 F. Supp. 331, 334 (D. Conn. 1999). Where the offending conduct is merely verbal,
however, the Connecticut Supreme Court has held that it does not constitute illegal interference
to “merely question[] a police officer’s authority or protest[] his or her action.” Williams, 205
Conn. at 472. Rather, the Court limited the statute’s verbal application to “fighting words” only;
that is, words that “‘by their very utterance inflict injury or tend to incite an immediate breach of
the peace.’” Id. at 473 (quoting Houston v. Hill, 482 U.S. 451, 461-62 (1987)); see also Dorman
v. Satti, 862 F.2d 432, 435 (2d Cir. 1988) (“In construing the Connecticut statute to proscribe
11
only physical conduct and “fighting” words, Chaplinsky v. New Hampshire, 315 U.S. 568, 572
(1942), the court in Williams was able to fit the statute within the constitutional parameters of
free speech.”). Fighting words “portend imminent physical violence or are likely to prompt
imminent physical retaliation.” State v. Szymkiewicz, 237 Conn. 613, 619 (1996). Also, because
police officers are expected to exercise a higher degree of restraint than the average citizen, the
type of “fighting words” that would violate this statute is narrower than under other actionable
circumstances. Williams, 205 Conn. at 474 n.7.
First, Defendants argue that I overlooked Connecticut authority pertaining to verbal
conduct sufficient to warrant an arrest for interfering.14 Specifically, Defendants contend that
recent Connecticut cases have expanded the range of conduct that is violative of section 53a167a beyond physical resistance and speech amounting to “fighting” words. Defendants rely on
two recent Connecticut Supreme Court decisions, State v. Aloi, 280 Conn. 824 (2007), and State
v. Silva, 285 Conn. 447 (2008). Neither case controls the outcome here.
In Aloi, the Court upheld a conviction for interference where the defendant refused an
officer’s request to produce identification during the course of a lawful Terry stop. 280 Conn. at
840–41. The Court reasoned that a refusal to comply with a request for identification during an
investigative stop constituted verbal “conduct”15 that may hamper or delay the progress of that
14
Defendants also cite multiple decisions from foreign jurisdictions—notably
interpreting different state statutes—to support their motions for reconsideration. See, e.g., King
v. Ambs, 519 F.3d 607, 615 (6th Cir. 2008); Lawyer v. City of Council Bluffs, 361 F.3d 1099,
1107 (8th Cir. 2004); People v. Knight, 910 N.Y.S. 2d 358 (Crim. Ct. 2010); People v. Gibbs,
115 Ill. App. 2d 113 (1st Dist. 1969). However, citations to non-controlling decisions from
foreign jurisdictions are entirely insufficient to meet the strict standards for reconsideration. See
Shrader, 70 F.3d at 257 (stating that motions for reconsideration “will generally be denied unless
the moving party can point to controlling decisions or data that the court overlooked”) (emphasis
added).
15
The Court was careful to point out that the state was relying on the defendant’s conduct
12
investigation and, therefore, amount to illegal interference. Id. at 834. Similarly, in Silva, the
Court relied on its previous decision in Aloi to uphold a jury verdict for illegal interference where
the defendant had refused to produce identification at the officers’ request after they had
observed Silva violating several traffic laws. 285 Conn. at 456-57. Significantly, however, the
Aloi Court specifically limited its holding to the narrow facts of that case, stating: “Although a
refusal to comply with certain other types of lawful police commands or orders may provide a
basis for prosecution under § 53a–167a, . . . for purposes of this opinion, we need not consider
any factual scenario other than the scenario presented by the lawful Terry stop in the present
case.” Aloi, 280 Conn. at 841 n.22 (internal citations omitted).
The case at bar obviously does not involve a Terry stop or a refusal to comply with a
police officer’s request for identification. Thus, Defendants’ reliance on Aloi is simply
misplaced. But even more broadly, Shlomit’s verbal conduct did not involve the kind of
disobedience and noncompliance that Aloi and its progeny meant to bring within section 53a167a’s reach. As this Court has noted elsewhere, “Connecticut courts most frequently find
illegal interference with a police officer where the officer makes a direct request, which the
defendant refuses to comply with, and it is that refusal that hinders or impedes the course of the
investigation of the defendant or the performance of the officer’s duties.” Acevedo v. Sklarz, 553
F. Supp. 2d 164, 168 (D. Conn. 2008) (citing State v. Peruta, 24 Conn. App. 598 (1991)).
Here, as in Acevedo, Shlomit never refused to comply with an officer’s requests nor did
in refusing to provide identification, and not his attendant speech, to support the conviction for
interfering. Aloi, 280 Conn. 834 n.14 (“[T]he state relies on the defendant’s conduct in refusing
to provide Salvatore with identification, and not on the defendant’s speech, to support the
defendant’s conviction. Moreover, as the state notes, there is nothing in the record to indicate
that the defendant’s conviction was predicated solely on the defendant’s speech as distinguished
from his conduct.”). Here, however, Shlomit never refused any officer’s request and nothing in
Shlomit’s verbal pleadings or protestations converted her speech to anything resembling
“conduct.”
13
she disobey an officer’s orders. Instead, crediting Shlomit’s version of events, when the officers
asked Tracy to play the messages from her phone, Tracy looked to her mother for guidance and
Shlomit responded, saying: “Tracy, you don’t have to do it. You have rights. They have to
have a search warrant.” Dep. of Shlomit Ruttkamp, at 70. However, even after Shlomit made
these statements, no one ordered Shlomit not to speak or requested that she leave the scene of the
investigation.16 Rather, when the officers pressed Tracy to play the messages, Shlomit, standing
at least five feet away, pleaded: “Don’t. They will get me in trouble. I can go to jail.” Id. at 7071. Shlomit’s verbal conduct may have been dissuasive and desperate, but it was never
disobedient. Nor did Shlomit’s statements somehow aid, abet, or exhort Tracy to unlawfully
refuse an officer’s request. Unlike the defendants in Aloi and Silva, Tracy was never “seized” as
the object of a legitimate Terry stop. Instead, the officers sought her consent to what amounted
to a search of her voicemail messages. Tracy was always free to refuse, whether on her own
accord or upon the advice of her mother. Thus, nothing in Aloi or Silva persuades me to
reconsider my ruling that a jury could find that Defendants lacked probable cause to arrest
Shlomit for interfering.17
16
For this reason, Defendants’ heavy reliance on King v. Ambs, 519 F.3d 607 (6th Cr.
2008), is unavailing. King involved an arrest for obstruction under a Michigan township
ordinance. In that case, the defendant repeatedly urged his friend to ignore an officer’s questions
and continued to interrupt the investigation even after the officer commanded the defendant to
stop interfering. Id. at 610. Unlike the officer in King, the officers here never told Shlomit that
she was interrupting their investigation, nor did they instruct her to desist.
17
Defendants also cite an unpublished district court decision, Foster v. Carr, 2006 WL
1980314 (D. Conn. July 13, 2006), for the proposition that verbal statements may violate the
interference statute. Foster, however, inadvertently overlooked Williams and relied exclusively
on the Appellate Court’s decision in State v. Alloi, 86 Conn. App. 363 (2004), a decision that was
later reversed in part by the Connecticut Supreme Court. See State v. Alloi, 280 Conn. 824
(2007). In granting summary judgment in favor of defendants on the basis of qualified
immunity, Foster concluded that “even assuming for purposes of this ruling that Aloi, which was
decided in 2004, sets forth that verbal statements cannot constitute a sufficient basis to arrest
14
Second, Defendants argue that they are entitled to qualified immunity because the law
pertaining to verbal interference aimed at third parties, rather than police officers, was not clearly
established. In support, Defendants stress that there is no case specifically holding that the
interfering statute does not reach verbal protestations and entreaties made to third parties—like
Tracy—who are the objects of police investigation. However, the absence of specific authority
directly on point does not necessarily entitle Defendants to qualified immunity. See Shabazz v.
Coughlin, 852 F.2d 697, 701 (2d Cir. 1988). Law can be clearly established for purposes of
qualified immunity analysis, even in the absence of specific authority directly on point, if state
court decisions “clearly foreshadow a particular ruling on the issue.” Varrone v. Bilotti, 123
F.3d 75, 79 (2d Cir. 1997) (internal quotation marks omitted). Indeed, as the Second Circuit
noted in Shabazz, the absence of case law can be explained in part because police departments
have “seen the writing on the wall” and trained their officers to avoid arrests they know will pose
constitutional problems. Shabazz, 852 F.2d at 701.
As noted above, the Connecticut Supreme Court specifically limited the scope of the
interference statute as follows: “To avoid the risk of constitutional infirmity, we construe § 53a167a to proscribe only physical conduct and fighting words that by their very utterance inflict
injury or tend to incite an immediate breach of the peace.” Williams, 205 Conn. at 473 (internal
quotation marks omitted). This unequivocal statement from the state’s highest court “leaves no
room for an interpretation that would permit an arrest for verbal interference involving
pursuant to section 53a-167a, this law was not established at the time of plaintiff’s arrest [in
2002].” Foster, 2006 WL 1980314, at *4. Unfortunately, Foster neglected to consult Williams,
a case decided in 1987, in which the Connecticut Supreme Court stated: “To avoid the risk of
constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting
words that by their very utterance inflict injury or tend to incite an immediate breach of the
peace.” 205 Conn. at 473 (internal quotation marks omitted). For this reason, I do not find the
Court’s reasoning in Foster persuasive.
15
something other than fighting words.” Darbisi v. Town of Monroe, 2002 WL 32348250, at *2
(D. Conn. Jan. 11, 2002).
Here, there is no dispute that Shlomit’s verbal interference never amounted to fighting
words; nothing she said tended “to incite an immediate breach of the peace.” Williams, 205
Conn. at 473. Shlomit neither threatened her daughter nor urged any violent or physical
response to the officer’s request. Thus, the fact that Shlomit’s verbal pleadings and protestations
were directed at her daughter, instead of an officer, is immaterial. No matter who she was
talking to, Shlomit’s speech, which “merely question[ed] a police officer’s authority or
protest[ed] his or her action,” was plainly outside the reach of section 53a-167a as construed by
the Connecticut Supreme Court.18 Id. at 472.
Third, Defendants argue that, even if they lacked probable cause to arrest for interfering,
they had at least arguable probable cause to arrest Shlomit for other crimes. As Defendants
correctly point out, when defending against claims for false arrest, an officer’s “subjective reason
for making the arrest need not be the criminal offense as to which the known facts provide
probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). “[A] claim for false arrest
turns only on whether probable case existed to arrest a defendant, and . . . it is not relevant
whether probable cause existed with respect to each individual charge, or, indeed, any charge
18
Defendants also argue that the officers had probable cause to arrest Shlomit for
interfering based on her “physical conduct” in following Tracy and the officers into the yard
when Gabianelli asked to hear the phone messages. See Mem. of Law in Supp. of Joint Mot. for
Reconsideration (doc. # 49-1), at 17. This argument is entirely meritless. Shlomit did nothing
more than walk out onto her own front lawn and stand approximately 5-10 feet away from the
officers. The entire incident occurred on Shlomit’s property—an area where she had every right
to be. Moreover, unlike the defendant in State v. Peruta, 24 Conn. App. 598 (1991), Shlomit
was never asked to move away from the scene, and therefore never disobeyed an officer’s
command to do so. On these facts, reasonable officers could not disagree that Defendants lacked
probable cause to arrest Shlomit for interfering based solely on her “physical conduct” in
following the officers onto her own front lawn.
16
actually invoked by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d 149,
154 (2d Cir. 2006); see also Espada v. Schneider, 522 F. Supp. 2d 544, 552 (S.D.N.Y. 2007)
(granting summary judgment in favor of the defendants on a false arrest claim where the plaintiff
was arrested for felony assault on a police officer but there was, “at minimum, probable cause to
believe that the plaintiff had committed disorderly conduct”).
At the outset, it bears mentioning that, even if Defendants could establish that they had
probable cause to arrest Shlomit for crimes other than interfering, the battle is only half won.
The Second Circuit has made clear that, although the existence of probable cause to arrest for
other, uncharged crimes provides a defense to claims of false arrest, that fact does not otherwise
preclude claims for malicious prosecution. See D’Angelo v. Kirschner, 288 F. App’x 724, 726
(2d Cir. 2008) (“Jaegly did not involve a malicious prosecution claim and its holding is not
applicable to such a claim. On the contrary, it is error ‘to conflate probable cause to arrest with
probable cause to believe that [D’Angelo] could be successfully prosecuted.’”) (quoting Posr v.
Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999)) (alteration in original). But
putting that obstacle aside, the hurdle remains high for disposing of the false arrest claim, too.
Even assuming, arguendo, that other crimes could be implicated or imagined in this case,
genuine disputes remain regarding whether the officers had probable cause, or even arguable
probable cause, to arrest Shlomit for those crimes as well.19
19
As noted above, I previously granted Defendant’s motion for summary judgment on
Shlomit’s false imprisonment claim arising out of the officers’ later decision to involuntarily
commit Shlomit for a mental health evaluation based on her suicidal ideations. See Tr. of Summ.
J. Hrg. (Jan. 21, 2012), at 4. Connecticut law authorizes any police officer “who has reasonable
cause to believe that a person is mentally ill and dangerous to himself, herself, or others” and “in
need of immediate care and treatment” to take such a person into custody or “cause such person
to be taken to a general hospital for emergency examination.” Conn. Gen. Stat. § 17a-503.
However, the fact that Defendants arguably had “reasonable cause” to involuntarily commit
Shlomit for an evaluation does not necessarily defeat her claim for false arrest. As an initial
17
Defendants claim they had probable cause to arrest Shlomit for three other crimes: (1)
threatening in the second degree in violation of Conn. Gen. Stat. § 53a-62; (2) harassment in the
second degree in violation of Conn. Gen. Stat. § 53a-183; and (3) stalking in the third degree in
violation of Conn. Gen. Stat. § 53a-181e. I briefly address each in turn.
Under Connecticut law, a person is guilty of threatening in the second degree when:
(1) By physical threat, such person intentionally places or attempts to place
another person in fear of imminent serious physical injury, (2) such person
threatens to commit any crime of violence with the intent to terrorize another
person, or (3) such person threatens to commit such crime of violence in reckless
disregard of the risk of causing such terror.
Conn. Gen. Stat. § 53a-62. Defendants’ argue they had probable cause to arrest Shlomit for
“threatening” based on reports that Shlomit left voicemail messages on Tracy’s cell phone
stating she would kill herself, Billy and Tracy. However, factual disputes remain with regard to
what information the officers actually possessed about the voicemails at the time of Shlomit’s
arrest. Where the facts available to the arresting officers immediately preceding the arrest are in
dispute, summary judgment is inappropriate. See, e.g., Francis v. Coughlin, 891 F.2d 43, 47 (2d
Cir. 1989) (dispute regarding facts necessary to establish constitutional violation precluded
summary judgment based on qualified immunity).
As an initial matter, Shlomit has unequivocally denied ever threatening to kill Tracy,
matter, it is undisputed that the decision to involuntarily commit Shlomit came sometime after
she was arrested for interfering and taken to the station for booking. But regardless of timing,
the two claims are sufficiently distinct so that the failure of one claim does not doom the other.
Although “false arrest” and “false imprisonment” derive from the same species of tort, an arrest
involves a materially different harm than a medical evaluation. An arrest, unlike a medical
evaluation, is designed to punish and comes with the added risk of criminal prosecution.
Moreover, the quantum of proof necessary to support an arrest differs from that of a medical
evaluation. An officer must have “probable cause” to support an arrest, while mere “reasonable
cause” suffices for an evaluation under section 17a-503. Thus, my previous ruling on the false
imprisonment claim does not necessarily dictate the outcome on the false arrest claim.
18
though she admitted she may have left messages threatening to harm herself and/or Billy. See
Pl.’s Local R. 56(a)(2) Smt. ¶ 16. Moreover, according to Shlomit’s account, which must be
credited on summary judgment, when Gabianelli asked Tracy whether her mother left any
threatening messages, Tracy never responded. See Dep. of Shlomit Ruttkamp, at 52-53. Thus,
unlike the officers in Pierson v. Hancock, 2011 WL 2938060 (D. Conn. July 19, 2011), and Leon
v. Fisher, 2007 WL 2874777 (D. Conn. Sept. 28, 2007), the officers here could not rely on
complaints from the putative victim to support a finding of probable cause. See Miloslavsky v.
AES Eng’g Soc’y, 808 F. Supp. 351, 355 (S.D.N.Y. 1992) (“[I]t 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”), aff'd, 993 F.2d 1534 (2d Cir. 1993).
Rather, the only evidence of threatening the officers had at the time of the arrest was based on
Mammone’s phone call to the police station. But that report was itself based on uncorroborated
hearsay: Mammone informed the police that her brother, Billy, had revealed to her that Shlomit
had left threatening voicemail messages on Tracy’s phone. See State Trooper Defs.’ Local R.
56(a)(1) Stmt. ¶ 52. Mammone, however, never had access to Tracy’s cell phone, never heard
any of the voicemails, and had not even spoken to Tracy herself for several days. Thus, the basis
of her knowledge was tenuous at best. See, e.g., Nieves v. New York City Police Dept., 2010 WL
330205, at *2 (S.D.N.Y. Jan. 26, 2010) (finding officers lacked probable cause to arrest based on
“uncorroborated hearsay statement” from an informant who “was not an eyewitness to the
shooting, had no personal knowledge of the shooter’s identity, and [where] defendants took no
steps to corroborate her statement prior to arresting [plaintiff].”); see also Cortez v. McCauley,
478 F.3d 1108, 1119 (10th Cir. 2007) (en banc) (holding that officers lacked probable cause to
execute a warrantless arrest where they “relied, without any investigation, exclusively on the
19
double-hearsay statement of a nurse who had no personal knowledge of the actual facts . . .
especially given that officers could easily have interviewed the nurse . . . or the [victim with
whom the nurse spoke] before moving to arrest [plaintiff]”). Based on the disputed record before
me, I cannot conclude as a matter of law that the officers had sufficient credible information to
support a finding of probable cause to arrest Shlomit for threatening. Thus, Defendants’
argument fails to persuade me to alter my previous ruling.
For essentially the same reasons, Defendants’ argument regarding harassment in the
second degree also falls short. A person is guilty of harassment in the second degree when:
(1) By telephone, he addresses another in or uses indecent or obscene language; or
(2) with intent to harass, annoy or alarm another person, he communicates with a
person by telegraph or mail, by electronically transmitting a facsimile through
connection with a telephone network, by computer network, as defined in section
53a-250, or by any other form of written communication, in a manner likely to
cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another
person, he makes a telephone call, whether or not a conversation ensues, in a
manner likely to cause annoyance or alarm.
Conn. Gen. Stat. § 53a-183. Defendants argue that they had probable cause to arrest Shlomit for
harassment based on Shlomit’s multiple phone calls and allegedly threatening messages over the
previous two days. However, as explained above, according to Shlomit’s version of events, at
the time of the arrest the officers had no specific information from the putative victim (i.e.,
Tracy) that Shlomit had placed harassing phone calls. Thus, material issues of fact remain in
dispute as to what credible information the officers could have relied on in making an arrest for
harassment.
Lastly, Defendants claim they had probable cause to arrest Shlomit for stalking in the
third degree. A person is guilty of stalking in the third degree when she “recklessly causes
another person to reasonably fear for his physical safety by willfully and repeatedly following or
lying in wait for such other person.” Conn. Gen. Stat. § 53a-181e. Here, Defendants contend
20
they had probable cause to arrest Shlomit for stalking not because of her actions on July 5, 2009,
but because of events that occurred two days earlier—when Shlomit pulled Tracy out of work to
question her about the divorce. The argument is meritless. Defendants ignore the fact that the
Old Saybrook police were called to investigate the events of July 3, 2009 that very same day and
notably found no reason to detain either Shlomit or Tracy. See Incident Rep., at 69, attached as
Ex. C. to State Trooper Defs.’ Mot. for Summ. J. (doc. # 29-4). The investigation into any
alleged “stalking” was already complete before the events leading to Shlomit’s July 5, 2009
arrest even began. Thus, Defendants’ arguments on the existence of probable cause to arrest
Shlomit for crimes other than interfering are unpersuasive. I see no reason to alter my previous
ruling in this case.
In sum, the asserted grounds for reconsideration are without merit. Accordingly, the
motions for reconsideration (docs. # 49 and # 50) are denied.
IV.
Defendants’ Second Motion for Summary Judgment
I now turn to address Defendants’ second motion for summary judgment regarding the
element of favorable termination—an element both parties agree must be proven to sustain the
plaintiff’s claims for false arrest and malicious prosecution. Because factual disputes remain on
the circumstances surrounding the nolle prosequi entered in this case, Defendants’ second
motion for summary judgment must also be denied.
A.
Standard of Review
Summary judgment is appropriate when the record demonstrates 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a properly supported motion for summary
21
judgment).
When ruling on a summary judgment motion, the court must construe the facts in the
light most favorable to the nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398
U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d
Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the
nonmoving party”). When a motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving party may not rest upon the
mere allegations or denials of his pleadings, but must present sufficient probative evidence to
establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also
Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving
party submits evidence that is “merely colorable,” or is not “significantly probative,” summary
judgment may be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact. As to
materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.
Id. at 247-48. To present a genuine issue of material fact, there must be contradictory evidence
such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248.
22
If the nonmoving party has failed to make a sufficient showing on an essential element of his
case with respect to which he has the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a situation, there can be no genuine issue as to
any material fact, since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial. Id. at 322-23; accord
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s
burden satisfied if he can point to an absence of evidence to support an essential element of
nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary
judgment may enter. Celotex, 477 U.S. at 323.
B.
Discussion
Defendants move for summary judgment on the remaining false arrest and malicious
prosecution claims, arguing that the supplemental affidavits submitted in support of their motion
eliminate factual disputes requiring a trial on whether the prosecution for interference terminated
in Shlomit’s favor. I disagree.
In order to prevail on her false arrest claim, Shlomit must establish that “(1) the defendant
intentionally arrested [her] or had [her] arrested; (2) the plaintiff was aware of the arrest; (3)
there was no consent to the arrest; and (4) the arrest was not supported by probable cause.”
Drew v. City of Groton, 2011 WL 2971768, at *6 (D. Conn. July 21, 2011) (internal citations
omitted). Although the Connecticut Supreme Court has not yet spoken on the issue,20 the
Second Circuit has held that favorable termination is an element of false arrest under Connecticut
20
As other district courts have noted, “Connecticut law is unsettled as to whether a
plaintiff, in order to prove a claim of false arrest, must show that the prosecution terminated in
his favor.” Spencer v. Connecticut, 560 F. Supp. 2d 153, 161-62 (D. Conn. 2008) (citing Weyant
v. Okst, 101 F.3d 845, 853 (2d Cir.1996)).
23
law. See Miles v. City of Hartford, 445 F. App’x 379, 383 (2d Cir. 2011) (“[F]avorable
termination is an element of ‘a section 1983 claim sounding in false imprisonment or false
arrest.’”) (quoting Roesch v. Otarola, 980 F.2d 850, 952 (2d Cir. 1992)).21
Similarly, to prove a malicious prosecution claim, Shlomit must show: “(1) the defendant
initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal
proceedings terminated in favor of the plaintiff; (3) the defendant acted without probable cause;
and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an
offender to justice.” Bauer v. City of Hartford, 2010 WL 4429697, at *10 (D. Conn. Oct. 29,
2010) (quoting Bhatia v. Debek, 287 Conn. 397 (2008)).
A plaintiff “may satisfy the favorable termination element by showing that the charges . .
. were discharged without a trial under circumstances amounting to the abandonment of the
prosecution without request by him or arrangement with him.” Frey v. Maloney, 476 F. Supp. 2d
141, 147 (D. Conn. 2007). As the Second Circuit has noted, the “majority of cases from
Connecticut courts interpret Connecticut law so that a nolle prosequi satisfies the ‘favorable
termination’ element as long as the abandonment of the prosecution was not based on an
arrangement with the defendant.” Roberts v. Babkiewicz, 582 F.3d 418, 421 (2d Cir. 2009); see
also Holman v. Cascio, 390 F. Supp. 2d 120, 123 (D. Conn. 2005) (“[A] nolle of a criminal
21
Roesch’s holding on this issue has been called into question. See Spencer v. Connecticut,
560 F. Supp. 2d 153, 161-62 (D. Conn. 2008) (citing Colon v. Ludemann, 283 F. Supp. 2d 747,
753-54 (D. Conn. 2003)). Moreover, as a matter of logic, it is possible to contemplate
circumstances where the Roesch rule would be inapplicable. For instance, one can imagine a
plausible claim for false arrest where, at the time of arrest, the officers lacked probable cause, but
sometime later—after the detention but before prosecution—probable cause is uncovered. In
such a scenario, even in the absence of a favorable termination, the arrest was still a “false”
arrest because there was no probable cause when the harm—the unjustified detention—was
complete. Nevertheless, Roesch “remains good law that this Court must follow absent a ruling to
the contrary from the Second Circuit or a Connecticut appellate court.” Miles v. City of
Hartford, 2010 WL 148452 at *5 (D. Conn. Jan. 12, 2010) (citing cases).
24
charge may still permit the plaintiff to satisfy [the favorable termination] element if the
circumstances of the nolle satisfy the See v. Gosselin test22 of an abandonment of prosecution
without request from or by an arrangement with [the defendant].”). However, “a nolle will
preclude a subsequent case for malicious prosecution when it is made as part of a plea bargain or
under other circumstances that indicate that the defendant received the nolle in exchange for
providing something of benefit to the state or victim.” Holman, 390 F. Supp. 2d at 123-24.
Here, Defendants contend that Shlomit’s false arrest and malicious prosecution claims
fail because the current record, as supplemented, demonstrates that the nolle prosequi resulted
from a bargained-for exchange and, therefore, cannot constitute a favorable termination. In
support, Defendants have submitted additional affidavits from Senior State’s Attorney Barbara
Hoffman, the prosecutor for the state criminal charges, and Carl J. Fortuna, the attorney who
represented Shlomit on the state criminal charges.
22
In See v. Gosselin, 133 Conn. 158, 159 (1946), the Connecticut Supreme Court first
encountered the question of whether a nolle prosequi may satisfy the element of favorable
termination. The Court noted that “[i]t is generally held that the plaintiff must allege and prove
that the criminal action terminated in his favor, either by his acquittal or in some other manner
equivalent thereto.” Id. In holding that the allegations of the circumstances of the nolle in that
case satisfied the test, however, the court explained:
When we made “discharge” a condition of bringing an action of malicious
prosecution, it signified the termination of the particular prosecution. It is not
necessary that the accused should have been acquitted. It is sufficient if he was
discharged without a trial under circumstances amounting to an abandonment of
the prosecution without request from or by arrangement with him.
Id. at 160. Although district courts have reached different conclusions on whether a nolle
prosequi bars a claim of false arrest or malicious prosecution, see Lagasse v. City of Waterbury,
2011 WL 2709749, at *5 (D. Conn. July 12, 2011), the majority of courts, relying on See, have
held that a nolle prosequi satisfies the favorable termination element as long as the abandonment
of the prosecution was not based on an arrangement with the defendant. See, e.g., Pizarro v.
Kasperzyk, 596 F. Supp. 2d 314, 318 (D. Conn. 2009).
25
In her new affidavit, Barbara Hoffman attests that “at the outset of these proceedings, I
had a verbal agreement with Ms. Ruttkamp’s attorney, Carl Fortuna, Jr., that I would enter nolles
in both cases if Ms. Ruttkamp completed the recommendations of the Family Relations
Division.” Aff. of Barbara Hoffman, at ¶ 6, attached as Ex. B to State Trooper Defs.’ Second
Mot. for Summ. J. (doc. # 51). Hoffman stated that “Ms. Ruttkamp completed the
recommendations . . . [and] at my direction, Assistant State’s Attorney Brian Kennedy . . .
entered the nolles.” Id. at ¶ 7. Hoffman also indicated that, due to heavy caseloads and
insufficient time, it is customary for prosecutors to enter into verbal plea agreements in
misdemeanor cases. Id. at ¶ 8.
Mr. Fortuna, Shlomit’s former attorney testified: “I had an agreement with Senior State’s
Attorney Barbara Hoffman that, in exchange for my client, Shlomit Ruttkamp, completing the
recommendations of the Family Relations Division . . . Hoffman would enter nolles to both
cases.” Aff. of Carl Fortuna, at ¶ 4, attached as Ex. C to State Trooper Defs.’ Second Mot. for
Summ. J. (doc. # 51). Fortuna stated that Shlomit completed the recommendations and “Brian
Kennedy appeared . . . and entered the nolles.” Id. at ¶ 5.
In response, Shlomit submitted a new affidavit of her own. In that affidavit, Shlomit
stated that she first met with a counselor, Mark D. Aron, on her own initiative on or about July 9,
2009 and that she began counseling permanently with another therapist, Linda Kaufman, on or
about July 16, 2009. See Aff. of Shlomit Ruttkamp, at ¶¶ 2-3, attached as Ex. 1 to Pl.’s Opp’n.
to Summ. J. (doc. # 56). According to Shlomit, her first court appearance and meeting with
Family Relations did not occur until July 21, 2009—several days after she had already begun
counseling. Id. at ¶ 4. Shlomit testified, “It is my understanding that a nolle was entered for the
charge in question . . . based upon the recommendation of the Family Relations Division . . . and
26
not based upon anything that I had bargained for or was subsequently required to do. No one . . .
ever told me I had any requirements to fulfill, including that I needed to complete any
recommendations or counseling.” Id. at ¶¶ 7-8. She concluded, “To my knowledge I did not
have an agreement with State’s Attorney Barbara Hoffman.” Id. at ¶ 9. Shlomit also submitted a
letter from Mark D. Aron stating that he met with Shlomit on July 9, 2009. See Aff. of Mark
Aron, attached as Ex. 2 to Pl.’s Opp’n to Summ. J. (doc. # 56).
Thus, the survival of Shlomit’s remaining claims turn on whether these competing
affidavits eliminate the need for trial on the issue of favorable termination. If the prosecution for
interfering terminated in the plaintiff’s favor, or if factual questions remain on whether the
termination was favorable, both claims survive summary judgment. See Holman, 390 F. Supp.
2d at 124 (“The factual circumstances surrounding the nolle are material and when disputed,
must be resolved by the trier of fact.”). If not, summary judgment must be granted in favor of
Defendants.
A termination is “unfavorable” when there is a quid pro quo exchange for the entry of the
nolle. Holman, 390 F. Supp. 2d at 123-24. Generally speaking, a “contract” must be formed by
the parties entering into a bargained-for exchange. Id. at 124. The prosecutor’s mere exercise of
discretion in entering a nolle, in the absence of a bargain, will not satisfy the standard. See
Pizarro v. Kasperzyk, 596 F. Supp. 2d 314, 318 (D. Conn. 2009) (“In Connecticut, ‘termination
in favor of the plaintiff’ has been interpreted as termination without consideration.”) (citing
DeLaurentis v. City of New Haven, 220 Conn. 225, 251 (1991)). Where “the reasons for a
dismissal of charges are in dispute, the matter should ordinarily be submitted to a jury.” Ricciuti
v. N.Y.C. Transit Authority, 124 F.3d 123, 131 (2d Cir. 1997).
27
Although this case presents a close question, I conclude that material issues of fact
remain on the circumstances surrounding the entry of the nolle in this case. Defendants argue
that Shlomit’s charges were terminated unfavorably pursuant to a verbal agreement between the
prosecutor and Shlomit’s attorney that a nolle would be entered in exchange for Shlomit
completing the recommendations of Family Relations. But it remains unclear what those
“recommendations” were and whether Shlomit ever completed them. According to Shlomit’s
sworn affidavit, no one ever gave her any requirements to fulfill nor informed her that she had to
complete any recommendations or counseling for the nolle to be entered. See Aff. of Shlomit
Ruttkamp, at ¶ 8. Instead, Shlomit maintains that she began counseling with a family therapist
prior to her first court appearance on July 21, 2009 and that, to her knowledge, she never had
any agreement with the prosecutor. See id. at ¶¶ 2-4.
Thus, even assuming, for the sake of argument, that Attorney Fortuna entered into an
agreement with the prosecutor—and that Shlomit was bound by that agreement despite her
ignorance of it—Shlomit was never given, nor did she complete, any recommendations by
Family Relations. Looking at these facts, as I must, in the light most favorable to the plaintiff, a
reasonable jury could conclude that, regardless of whatever agreement her attorney may have
arranged, Shlomit never performed her side of the bargain. Consequently, a jury could find that,
despite Shlomit’s failure to perform, the State’s Attorney decided, in an act of discretion, to enter
the nolle anyway. Under these circumstances, the nolle could not have resulted from a
bargained-for exchange because Shlomit never supplied the promised consideration. Thus,
material issues of fact remain regarding whether Shlomit’s participation in counseling was, in
fact, “consideration” for the entry of a nolle prosequi in this case, or whether it was merely
28
“considered” by the State’s Attorney in exercising discretion to unilaterally abandon the
prosecution.
Because the circumstances surrounding the nolle are in dispute, genuine issues of
material fact remain to be resolved and summary judgment is inappropriate. See Holman, 390 F.
Supp. 2d at 125-26 (“Although a close call, the plaintiff's deposition testimony that the nolles
were not entered as part of a plea bargain, and that the nolles were entered over two years after
his arrest, is enough to withstand a motion for summary judgment. The plaintiff has created a
genuine issue of material fact whether his case was favorably terminated, one that a trier of fact
must resolve.”); Haynes v. City of New London, 2002 WL 1204956 at *2 (D. Conn. Aug. 29,
2005) (denying motion for summary judgment as to false arrest claim because “the exact
circumstances and intent behind the nolles are not entirely clear”). Accordingly, Defendants’
second motion for summary judgment (doc. # 51) must be denied.
V.
Conclusion
For the reasons stated above, Defendants’ motions for reconsideration (docs. # 49 and #
50) and second motion for summary judgment (doc. # 51) are DENIED.
It is so ordered.
Dated at Bridgeport, Connecticut, this 20th day of August 2012.
/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge
29
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