Feliz v. DeCusati et al

Filing 46

ORDER: Defendant's Motion 40 for Summary Judgment is GRANTED. Signed by Judge Janet Bond Arterton on 09/10/2012. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Luis Feliz,
Plaintiff,

Civil No. 3:10cv1352 (JBA)

v.
Andrew DeCusati & Town of Wallingford,
Defendants.

September 10, 2012

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Luis Feliz filed suit against Defendants Officer Andrew DeCusati and the
Town of Wallingford, alleging false arrest and malicious prosecution, unlawful search and
seizure, violations of equal protection and due process, defamation and intentional infliction
of emotional distress, all in violation of the United States Constitution and Connecticut
Constitution and state common law.1 Defendants move [Doc. # 40] for summary judgment
on all counts. For the reasons that follow, Defendants’ motion will be granted.
I.

Factual Background
On February 3, 2010, Plaintiff Luis Feliz lived at 76 White Tail Lane in Wallingford,

CT. On June 6, 2006, he married Ms. Hollie Distasio, and in 2007 they had a child named
Aury. The couple divorced in 2009, and share custody of their son.
Plaintiff had been working as a Police Officer for the MTA Police Department for
several years, and he customarily worked three twelve–hour shifts each week, though the
MTA would often call on his days off to ask him to work overtime. (See Pl.’s Dep., Ex. A to

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Plaintiff’s opposition memorandum states that Plaintiff does not claim a violation
of substantive due process, and at oral argument, Plaintiff’s counsel clarified that Plaintiff
was not pursuing claims of equal protection, unlawful search and seizure, or any claims
under the Connecticut Constitution. Plaintiff also withdrew his claim of defamation.

Def.’s Loc. R. 56(a)1 Stmt [Doc. # 40–2] at 8:10–19.) On February 3, 2010, Plaintiff learned
that he was scheduled to work overtime the following day, and could not care for Aury as
originally planned. He notified Ms. Distasio, who told Plaintiff she could not find anyone
to watch Aury on such short notice. Plaintiff recalls that even prior to the discussion about
finding a babysitter, he and his ex–wife were arguing because she was “highly upset” that
Plaintiff had a new girlfriend who was “coming around our son.” (Id. at 10:17–24.) Earlier
that day, Plaintiff and Ms. Distasio had been texting each other “insults” (id. at 10: 25–11:1),
and by the time Ms. Distasio arrived to pick Aury up from Plaintiff’s house, she and Plaintiff
were both upset.
When Plaintiff opened the door to let Ms. Distasio and Aury leave, Ms. Distasio
“slammed [the door] back and into [Plaintiff’s] leg.” (Id. at 11:11–15.) Plaintiff recalls that
“at that point, I felt like she shouldn’t be driving like that, that upset. So I wanted to grab my
son back from her. And I said, you know what, why don’t you just give me Aury because
you’re highly emotional.” (Id. at 11:16–19.) Plaintiff and Ms. Distasio then had a further
physical altercation: Ms. Distasio states that she forced her way back into the house, and “fell
to the floor just inside the family room,” and “Luis held me to the floor by grabbing my
forearms” (Declaration of Hollie Distasio, Ex. B to Def.’s 56(a)1 Stmt ¶¶ 22–23); Plaintiff
testified that he was “holding her back,” and holding his son with the other hand (Pl.’s Dep.
at 12:1–4). Plaintiff “let her go” once he “thought she had relaxed and calmed down,” and
then Plaintiff called the police. (Id. at 13:5–6.)
When Officer DeCusati arrived, Plaintiff told him what happened and that Ms.
Distasio had already left. Officer DeCusati went to interview Ms. Distasio, who was had gone
to her parents’ nearby house. Ms. Distasio showed Officer DeCusati several texts that
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Plaintiff had sent her earlier in the day,2 and stated that “is why I was so emotional when I
went to pick up my son.” (Distasio Aff. ¶ 13.) Officer DeCusati noted in his report that
“Holly [sic] said Luis is a cop and she is sure that he tried to make you think she is a crazy
woman but Luis instigated her all day at work.” (Case Incident Report, Ex. C to Def.’s 56(a)1
Stmt at 2.) Ms. Distasio also states that she showed Officer DeCusati her “forearms which
were red from where Luis had held me down.” (Distasio Aff. ¶ 25.)
After having spoken with Ms. Distasio, Officer DeCusati returned to speak with
Plaintiff, and Plaintiff “admitted that he did pin Holly down and said that he feared she
might hurt Aury because she was out of control.” (Case Incident Report at 2.) DeCusati
issued them each a Misdemeanor Summons for the charge of Disorderly Conduct, and
assigned them the next available court date, which was the following day, February 4, 2010.
(Id.) Officer DeCusati also confirmed that Plaintiff had one weapon in his house—his service
weapon—and that Plaintiff’s “badge and weapon have been seized until after the
investigation.” (Id. at 3.) He noted that he “contacted DCF to report the incident,” and that
“[a] DCF–136 form was completed and sent to DCF on 2/3/10.” (Id.; see also Family
Violence Report, Ex. F to Def’s 56(a)1 Stmt; DCF Report of Suspected Abuse and Neglect,
Ex. G to id.) In each of his DCF reports, DeCusati noted that the child in common, Aury,
“was present during physical altercation between mom and dad.” (Family Violence Report
¶ 21; DCF Report at 1.)

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Some of the texts discussed the overtime assignment that Plaintiff had just received,
and Ms. Distasio’s difficulty in getting a baby sitter on such short notice. (Distasio Aff. ¶ 10.)
A few were more heated, such as Plaintiff’s texts: “Don’t worry c . . . , I will get backup!” (id.
¶ 11), “Go get laid,” and “B . . . .” (id. ¶ 12).
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Because of the pending charges against him, Plaintiff was placed on modified duty
at the MTA, effective February 3, 2010. (Pl.’s Dep. at 24:25–25:2.) Two days later, on
February 5, the Internal Affairs Bureau of the MTA Police Department commenced an
internal investigation concerning the February 3, 2010 incident. Lieutenant Pontorno called
Plaintiff to speak with him, and asked if Plaintiff had ever had incidents similar to those of
February 3 in the past, and Plaintiff said that once, in 2008, he and his ex–wife had another
altercation, which resulted in slamming of a door and damage to the threshold, and that
although Plaintiff had called 911, “no criminal charges were ever proffered.” (Internal
Investigation, Ex. D to Def.’s 56(a)1 Stmt at 1–2.)
Plaintiff and Ms. Distasio appeared before Judge Scarpellino on February 4, 2010,
who notified them that “Family Relations is going to talk to the two of you between now and
March 18,” and that “it is best for you to cooperate.” (See Feb. 4, 2010 Tr., Ex. 2 to Pl.’s Loc.
R. 56(a)2 Stmt [Doc. # 43–2].) Mr. Feliz and Ms. Distasio spoke with Family Relations, who
recommended that the court “nolle” the charges. On March 2, 2010, the Judge Scarpellino
accepted Family Relations’ recommendation and nolled the charges against Plaintiff and Ms.
Distasio. (See Mar. 18, 2010 Tr., Ex. 3 to Pl.’s 56(a)2 Stmt at 1:11–15.) At this point, the IAB
investigation against Plaintiff was discontinued (Pl.’s Dep. at 34:2–8), and Plaintiff was
released from modified duty and returned to full duty on March 9, 2010. (Pl.’s Dep. at
25:4–7.)
At his deposition, when asked “on what basis” Plaintiff was claiming that Officer
DeCusati discriminated against him, he testified that “basically as a police officer we’re
supposed to recognize who the primary aggressor is and who the victim is.” (Pl.’s Dep. at
14:13–15.) He described further, “I don’t know what his motive was. I don’t know whether
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it was racially motivated or not, I really can’t tell you, but I can say that it was not properly
handled.” (Id. at 14:22–24.)
When asked about his claim that Officer DeCusati had falsely “alleged abuse or
neglect of your child to the Department of Children and Families,” Plaintiff responded:
“Well, he had to report it. I don’t know if he—I think it’s not negligence to actually write a
report. . . . I don’t know if he tried to blame my character.” (Id. at 18:20–23.) When pressed
further about what false statements Officer DeCusati may have made about Plaintiff,
Plaintiff said that he was not aware of any such false statements (id. at 20:3–5), but that he
took issue with the fourth paragraph in Officer DeCusati’s report, which states: “During the
two–year marriage, Luis was physical with [Ms. Distasio] on one occasion when he grabbed
her neck from behind. She did not report that to the police because he is a MTA Police
Officer and she did not want him to lose his job.” (DeCusati Incident Report at 2.) Plaintiff
explained, “I don’t know if this is something that my ex–wife stated to him or he just decided
to place that sentence into the paragraph, . . . [T]hat’s not true.” (Pl.’s Dep. at 56:5–13.)
II.

Discussion3
From his single–count Complaint [Doc. # 1], Plaintiff’s remaining claims are false

arrest, malicious prosecution, and intentional infliction of emotional distress. (See note 1

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“Summary judgment is appropriate where, construing all evidence in the light most
favorable to the non-moving party,” Pabon v. Wright, 459 F.3d 241, 247 (2d Cir. 2006), “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law,” Fed. R. Civ. P. 56(c)(2). An issue of fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is “genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Unsupported allegations do not create a material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
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supra.) Defendants move for summary judgment on all remaining claims, arguing that there
is insufficient evidentiary record support for any of them, and that in any event, Officer
DeCusati’s conduct was objectively reasonable and he is entitled to summary judgment on
the basis of qualified immunity.
A.

Constitutional Claim: Fourth Amendment
1.

False Arrest

Plaintiff argues that his arrest was not supported by probable cause, in violation of
the Fourth Amendment. “The existence of probable cause is a complete defense to a civil
rights claim alleging false arrest.” Garcia v. Gasparri, 193 F. Supp. 2d 445, 449 (D. Conn.
2002) (citing Curley v. Village of Suffern, 268 F. 3d 65, 69–70 (2d Cir. 2001)). “Probable cause
exists when 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.” Curley, 268 F. 3d at 70 (internal quotations omitted).
There is no dispute that Ms. Distasio and Plaintiff were arguing at Plaintiff’s home
on February 3, 2010, and that Ms. Distasio slammed the storm door on Plaintiff’s leg. There
is similarly no dispute that Plaintiff and Ms. Distasio ended up on the floor in Plaintiff’s
home, that Plaintiff restrained Ms. Distasio by holding her on the floor, and called 911. (Pl.’s
Dep. at 11–12.) Further, Officer DeCusati’s report states that Plaintiff and Ms. Distasio both
admitted to the argument and confirmed the conduct that flowed from it (DeCusati Report
at 1–2). Plaintiff described his own conduct as: “I just held her back. For some reason we
ended up on the floor. . . And I’m just holding her back because I didn’t want—I’m holding
my son with one hand and holding her with another. Then I let her go once I thought she
had relaxed and calmed down.” (Pl.’s Dep. at 11:25–12:6.)
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In Connecticut, Disorderly Conduct is a Class C misdemeanor. Conn. Gen. Stat.
§ 53a-182 provides:
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; or
(4)
without lawful authority, disturbs any lawful assembly or
meeting of persons; or
(5)
obstructs vehicular or pedestrian traffic; or
(6)
congregates with other persons in a public place and refuses
to comply with a reasonable official request or order to
disperse; or
(7)
commits simple trespass, as provided in section 53a-110a, and
observes, in other than a casual or cursory manner, another
person
(A)
without the knowledge or consent of such other
person,
(B)
while such other person is inside a dwelling, as
defined in section 53a-100, and not in plain view, and
(C)
under circumstances where such other person has a
reasonable expectation of privacy.
Conn. Gen. Stat. Ann. § 53a-182.
a.

Probable Cause

In Connecticut, probable cause “comprises such facts as would reasonably persuade
an impartial and reasonable mind not merely to suspect or conjecture, but to believe that
criminal activity has occurred.” State v. Grant, 286 Conn. 499, 511 (Conn. 2008). “When
information is received from a putative victim or an eyewitness, probable cause exists, . . .
unless the circumstances raise doubt as to the person’s veracity.” Curley v. Village of Suffern,

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268 F.3d 65, 70 (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995).
“[P]robable cause does not demand any showing that a good–faith belief be “correct or more
likely true than false.” Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007) (citing Texas v.
Brown, 460 U.S. 730, 742 (1983)). Rather, it requires “only such facts as make wrongdoing
or the discovery of evidence thereof probable.” Id.
The record is undisputed that Plaintiff and Ms. Distasio had an altercation that
turned physical, and that Plaintiff and Ms. Distasio admitted to physical behavior towards
each other. On these facts, a reasonable mind could believe that by “recklessly creating a
risk” of causing “inconvenience, annoyance, or alarm,” Plaintiff “engage[d] in . . .
tumultuous or threatening behavior,” or “annoy[ed] or interfere[d] with another person,”
in violation of Conn. Gen. Stat. § 53a-182. Plaintiff merely states that the standard for
probable cause is not met and that he was not the aggressor. (Pl.’s Opp’n at 7.) However,
there is no factual dispute that Plaintiff held his ex–wife down in an acrimonious domestic
context, and that Officer DeCusati’s report noted that her wrists were red from Plaintiff’s
physical contact. On these admitted facts, reasonable jurors would not have a proper basis
for concluding that Defendant DeCusati lacked probable cause when he arrested Plaintiff
for disorderly conduct.
b.

Qualified Immunity: Arguable Probable Cause

However, even if Defendant DeCusati lacked probable cause, Defendants contend
that he is entitled to summary judgment on the basis of qualified immunity. “[I]n the context
of a qualified immunity defense to an allegation of false arrest, the defending officer need
only show ‘arguable’ probable cause.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)
(emphasis added). Arguable probable cause exists where “it was objectively reasonable for
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the officer to believe the probable cause had existed, or officers of reasonable competence
could disagree on whether the probable cause test was met.” Golino v. City of New Haven,
950 F.2d 864, 870 (2d Cir. 1991).
The standard for arguable probable cause is readily met here: Officer DeCusati
responded to Plaintiff’s 911 call, noted Plaintiff’s side of the story and that “Luis showed me
an abrasion on his shin that had scraped skin and was bleeding slightly” (DeCusati Report
at 1), and noted Ms. Distasio’s side of the story, in which she “showed me her forearms,
which had redness on each forearm consistent with being pinned on the floor” (id. at 2).
DeCusati concluded from these facts—i.e., that they were arguing, that she slammed the
door on his leg, that he held her down on the floor—that “wrongdoing or the discovery of
evidence thereof” sufficient for a charge of Disorderly Conduct was probable.4 Walczyk, 496
F.3d at 157. Even though Plaintiff maintains that his physical conduct was reasonable and
not criminal, it was objectively reasonable for Defendant to charge both antagonists with
Disorderly Conduct on the basis of their respective physical conduct towards the other, and

4

Plaintiff’s counsel acknowledged at oral argument that the situation presented to
Defendant was colloquially referred to as a “domestic.” Connecticut General Statute § 46b38b requires police officers to make arrests in domestic violence situations. See Lee v.
Sandberg, 136 F.3d 94, 103–04 (2d Cir. 1991) (“This statute reflects the legislature’s attempt
to eliminate indifference by law enforcement agencies when responding to reports of
domestic violence and to prevent further injury to victims of family violence.”). In Lee, the
Second Circuit reversed a district court’s denial of summary judgment on qualified
immunity grounds, and concluded that a reasonable officer in the defendant’s position,
“given the extraordinarily difficult judgment decisions that law enforcement officers must
make in domestic violence situations,” would have had probable cause to arrest plaintiff for
the charge of Disorderly Conduct under Conn. Gen. Stat. § 53a-182, even if his wife’s (the
complaining witness) credibility was an issue. 136 F.3d at 104.
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thus Defendant is entitled to summary judgment of qualified immunity on the false arrest
claim, as supported by arguable probable cause.
2.

Malicious Prosecution

For a plaintiff to succeed on a malicious prosecution claim, he must show: (1) the
defendant initiated or procured the institution of criminal proceedings against the plaintiff;
(2) the criminal proceedings have 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. Bhatia v. Debek, 287 Conn. 387, 405
(Conn. 2008). To prove a claim of malicious prosecution under § 1983, Plaintiff must also
show a deprivation of a Fourth—Amendment right. Fulton v. Robinson, 289 F.3d 188, 195
(2d Cir. 2002). As discussed above, Plaintiff has not shown that Defendant DeCusati acted
without probable cause, thus, Plaintiff cannot satisfy the requirements for a malicious
prosecution claim, and Defendant is entitled to summary judgment on the malicious
prosecution claim.
3.

Municipal Liability

Plaintiff also asserts that the Town of Wallingford had an unconstitutional municipal
“policy or custom” and that the Town’s “deliberate indifference to the violation of
constitutional rights” subjects it to municipal liability under 42 U.S.C. § 1983. (Compl.
¶¶ 9–10.)
To establish municipal liability under § 1983, a plaintiff must prove that “action
pursuant to official municipal policy” caused the alleged constitutional injury. Connick v.
Thompson, --- U.S. ----, 131 S.Ct. 1350, 1359 (2011). Here, as the Court had concluded that

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the record cannot support a finding of constitutional injury, the Town of Wallingford is
entitled to summary judgment on Plaintiff’s claim of municipal liability.
B.

State law claims: IIED
For the tort of IIED, a plaintiff must establish:

(1) that the actor intended to inflict emotional distress or that he knew or
should have known that emotional distress was the likely result of his
conduct; 2) that the conduct was extreme and outrageous; (3) that the
defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the
emotional distress sustained by the plaintiff was severe. . . . Whether a
defendant’s conduct is sufficient to satisfy the requirement that it be extreme
and outrageous is initially a question for the court to determine. . . . Only
where reasonable minds disagree does it become an issue for the jury.
Appleton v. Bd of Educ., 254 Conn. 205, 210–11 (Conn. 2000). There is nothing in the record
to support Plaintiff’s IIED claim, particularly because no reasonable juror could conclude
that Officer DeCusati’s conduct in responding to Plaintiff’s 911 call, interviewing Plaintiff
and his ex–wife, and issuing misdemeanor summonses to both of them, was extreme and
outrageous. Further, the record contains no evidence that Plaintiff suffered “severe”
emotional distress as a result of Officer DeCusati’s behavior. Accordingly, Defendants are
entitled to summary judgment on Plaintiff’s IIED claim.

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III.

Conclusion
For the reasons discussed above, Defendants’ motion [Doc. # 40] for summary

judgment is GRANTED. The Clerk is directed to close the case.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 10th day of September, 2012.

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