Lamar v. Waterbury et al
ORULING AND RDER granting 37 Motion for Summary Judgment, Signed by Judge Robert N. Chatigny on 9/26/12. (Blue, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CITY OF WATERBURY, et al.,
Case No. 3:10-CV-1390(RNC)
RULING AND ORDER
Plaintiff brings this action under 42 U.S.C. § 1983 and
state law asserting claims of false arrest, malicious prosecution
and false imprisonment.
In addition, the complaint contains
state law claims for negligence and recklessness.
defendants are the City of Waterbury, Waterbury police officer
Francis Brevetti, and his supervising officers.
arises from Officer Brevetti's arrest of the plaintiff on various
charges, including breach of peace and possession of narcotics.
The charges were eventually dropped after Officer Brevetti
himself pleaded guilty to drug-related offenses.
have moved for summary judgment on all the claims in the
complaint arguing principally that the plaintiff's arrest was
supported by probable cause.
The Court agrees that probable
cause existed as a matter of law.
Accordingly, summary judgment
is granted as to the claims for false arrest, malicious
prosecution and false imprisonment, under both federal and state
The Court declines to exercise supplemental jurisdiction
over the remaining state law claims for negligence and
The record before the Court establishes the following facts
for purposes of the pending motion.1
On July 31, 2008, Officer
Brevetti responded to a report of a disturbance.
accompanied by Officer Michael Modeen.
Upon arriving at the
location, the officers interviewed two complainants, Hector Ramos
and Jessie Stein.
Both reported that the plaintiff, who lived in
the neighborhood, had been yelling obscenities and making threats
as a result of a disagreement relating to a dog.
the officers to the house where the plaintiff lived.
officers went to the front door and knocked.
After a delay, the
plaintiff opened the door wearing only his underwear and a shirt.
The plaintiff was perspiring and appeared to be nervous.
officers asked if they could step inside to speak with him and he
When questioned by Officer Brevetti, the plaintiff
admitted having a problem with his neighbors, although he said it
was not that serious.
Officer Brevetti then informed the
plaintiff that he was under arrest for breach of peace.
The Court has reviewed the assertions of material fact
contained in the defendants' Local Rule 56(a)1 Statement and
found them to be supported by evidence in the record. Plaintiff
has not submitted a Local Rule 56(a)2 Statement containing
separately numbered paragraphs meeting the requirements of Local
Rule 56(a)3 and corresponding to the paragraphs in the
defendants' Local Rule 56(a)1 statement. Accordingly, the
material facts asserted by the defendants are deemed admitted in
accordance with Local Rule 56(a)1.
plaintiff said he needed to get his pants, backpedaled, then
walked up a short flight of stairs.
The officers followed the
plaintiff to the top of the stairs, where they handcuffed him.
In plain view on a table approximately five feet from where they
were standing was a clear plastic bag containing a white rocklike substance, together with a small scale and a box of sandwich
The plaintiff's pants were on the floor next to the table.
The officers placed the pants on the plaintiff and found $690 in
cash in the right front pocket.
The white substance in the
plastic bag tested positive for crack cocaine.
The plaintiff was
charged with breach of peace in the second degree in violation of
Conn. Gen. Stat. § 53a-181, possession of narcotics with intent
to sell in violation of Conn. Gen. Stat. § 21a-278(b), and other
The plaintiff's arrest led to a conditional discharge
violation hearing in Waterbury Superior Court, held on May 13,
Officers Brevetti and Modeen testified at the hearing and
their testimony was consistent with Officer Brevetti's report
concerning the plaintiff's arrest.
testified for the state.
Mr. Ramos and Ms. Stein also
There was a discrepancy between Mr.
Ramos's testimony and the police report.
Mr. Ramos testified
At the time of his arrest, the plaintiff was subject to a
conditional discharge imposed by the state court in a previous
drug case. The conditions required him to obey the law and avoid
that although he did call the police and complain that the
plaintiff had been yelling, the plaintiff did not threaten to
kill him as the police report stated.
Ms. Stein, on the other
hand, testified that the plaintiff did threaten to kill his
neighbors as detailed in the police report.
There was also a
minor discrepancy between the complainants' testimony and the
police report as to who owned the dog.
At the conclusion of the hearing, Judge Fasano found the
plaintiff to be in violation of his conditional discharge and
sentenced him to imprisonment for three and a half years.
Applying a preponderance of the evidence standard, the judge
found that the plaintiff had committed a breach of peace as
The judge stated that the plaintiff had been upset
about his neighbors' treatment of the dog, that he had screamed
at the neighbors intending to frighten them, and that his conduct
had in fact frightened them resulting in the call to the police.
With regard to the drug charges, Judge Fasano stated that at the
very least the plaintiff had constructive possession of the crack
cocaine found in plain view in the house where he was living.
On September 24, 2009, Officer Brevetti was arrested after
narcotics were found in his car.
He pleaded guilty to tampering
Under Conn. Gen. Stat. § 53a-181(a)(1), "a person is
guilty of breach of peace [in the second degree] when, with
intent to cause inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, such person engages in fighting,
tumultuous or threatening behavior."
with evidence and possession of a controlled substance and
received a suspended sentence.
The state subsequently dropped
the charges against the plaintiff stemming from the arrest on
July 31, 2008.
The plaintiff remained in prison pursuant to the
sentence imposed by Judge Fasano until March 26, 2010.4
Following the plaintiff's release from prison, he filed this
action in state court.
The defendants then removed the action to
this court on the basis of the federal claims in the complaint.
II. Summary Judgment
Summary judgment may be granted when there is no "genuine
issue as to any material fact" and, based on the undisputed
facts, the movant is "entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c).
See D'Amico v. City of New York, 132 F.3d
145, 149 (2d Cir. 1998).
A genuine issue of fact exists "if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party."
U.S. 242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477
In opposing summary judgment, a party may
not rely on conclusory allegations or speculation but must
instead offer evidence supporting its version of events.
D'Amico, 132 F.3d at 149.
It is unclear from the record why the charges against the
plaintiff were dropped as well as why the plaintiff was released
after less than a year despite being sentenced by Judge Fasano to
three and a half years.
The plaintiff's claims for false arrest, false imprisonment
and malicious prosecution are based on his arrest by Officer
Brevetti on July 30, 2008.
Under both Connecticut and federal
law, the absence of probable cause is an essential element of all
McClellan v. Smith, 439 F.3d 137, 145 (2d Cir.
2006); Zainc v. City of Waterbury, 603 F. Supp. 2d 368, 387 (D.
Conn. 2009); Beinhorn v. Saraceno, 23 Conn. App. 487, 491 (1990);
McHale v. W.E.S. Corporation, 187 Conn. 441, 447 (1982).
Probable cause to arrest exists when officers have "knowledge or
reasonably trustworthy information of facts and circumstances
that are sufficient to warrant a person of reasonable caution in
the belief that the person to be arrested has committed or is
committing a crime."
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
Significantly less evidence is necessary to support
probable cause to arrest than is required to establish guilt.
United States v. Thevis, 469 F. Supp. 490, 503 (D. Conn. 1979)
aff'd, 614 F.2d 1293 (2d Cir. 1979).
“Where parties dispute what
facts were known to police officers at the time an individual was
arrested, resolution is for the jury; where . . . the parties do
not dispute what facts were known to [the officers] but dispute
whether those facts support probable cause, the disposition is a
matter of law.”
Zainc, 603 F. Supp. at 385.
In this case, uncontested facts establish that the
plaintiff's arrest was supported by probable cause.
to the charge for breach of peace, it is undisputed that both Mr.
Ramos and Ms. Stein reported to the officers that the plaintiff
had been screaming at them, and it is undisputed that at least
one of them (Ms. Stein) reported that the plaintiff had been
threatening to kill his neighbors.
The plaintiff points to
discrepancies between Officer Brevetti's report concerning the
complaints of Mr. Ramos and Ms. Stein and their testimony at the
hearing before Judge Fasano, but these discrepancies do not
undermine the existence of probable cause.
Regarding the drug
charges, the defendant's apparent possession of the drugs, scale,
baggies and $690 in cash provided ample probable cause.
plaintiff seems to imply that Officer Brevetti's conviction for
tampering with evidence and the state's subsequent decision to
drop the charges against the plaintiff somehow undermines the
existence of probable cause for the plaintiff's arrest.
there is no allegation or evidence that the plaintiff's arrest
was tainted by tampering or other misconduct on the part of
Officer Brevetti or Officer Modeen.
Both officers testified in
the hearing before Judge Fasano that they saw the drugs, scale
and baggies in plain view in the plaintiff's residence and Judge
Fasano credited their testimony.
Plaintiff did not claim then,
and indeed he does not claim now, that these items were planted
in the house by the officers.
Because probable cause existed for the plaintiff's arrest,
the plaintiff cannot prevail on his claims under § 1983 and state
law for false arrest, false imprisonment and malicious
prosecution as a matter of law and, accordingly, the defendants
are entitled to summary judgment on these claims.
v. Yates County, 350 F. App'x 589, 592 (2d Cir. 2009) ("As we
find that there was no constitutional deprivation of appellant's
rights, his claims of municipal liability necessarily fail.").5
Dismissal of these claims leaves no other federal claims in the
In the absence of any other federal claims, the Court
declines to exercise supplemental jurisdiction over the state law
claims for negligence and recklessness, which will be remanded to
the Superior Court.
Accordingly, the defendants' motion for summary judgment
This disposition of the claims for false arrest, false
imprisonment and malicious prosecution makes it unnecessary to
consider the defendants' affirmative defense of qualified
immunity. It bears noting, however, that the plaintiff could not
recover damages against Officer Brevetti under § 1983, even if
the arrest lacked probable cause, because it was objectively
reasonable for the officer to think probable cause existed. See
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). A different
standard applies to the common law claims.
See Balogh v. City
of Shelton, No. CV990067521S, 2002 WL 523225,*9 (Conn. Super. Ct.
March 18, 2002). However, on the present record, Officer
Brevetti would appear to be entitled to immunity under the state
law standard as well, as there is no evidence that he acted with
malice, wantonness or intent to injure.
[doc. 37] is hereby granted.
The Clerk will enter judgment
dismissing the federal and state law claims for false arrest,
false imprisonment and malicious prosecution.
The Clerk will
then remand the action to state court without an award of
attorney's fees or costs.
So ordered this 26th day of September 2012.
Robert N. Chatigny
United Stated District Judge
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