Diruscio v. Miller et al

Filing 6

PRISC INITIAL REVIEW ORDER denying with out prejudice 4 Motion to Appoint Counsel ; denying with out prejudice 5 Motion to Amend/Correct. Signed by Judge Robert N. Chatigny on 4/19/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FRANK DIRUSCIO,

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Plaintiff,
v.
JOSEPH MILLER, et al.,
Defendants.

CASE NO. 3:11CV1556 (RNC)

INITIAL REVIEW ORDER
Plaintiff, proceeding pro se and in forma pauperis, brings
this action under 42 U.S.C. § 1983 against the following state
employees: Trooper Joseph Miller, Family Services Supervisors
Sandra McManus, Rasheen Ford Bey, Donna Garrison and Joseph Nash,
Assistant State’s Attorney Jennifer Barry, and Public Defender
Kimberly Coulfer.

Also named as defendants are two private

attorneys, Carol Brigham and Bethany Phillips, and a Hartford law
firm, Butler Norris & Gold.

The complaint seeks money damages

for false arrest, malicious prosecution and conspiracy to violate
the plaintiff’s civil rights.

The plaintiff has moved to amend

his complaint to add three more defendants: G4S, a security firm;
Matthew Kennedy, apparently an employee of G4S; and Steven St.
Clair, a Connecticut attorney.

The plaintiff also has filed a

motion for appointment of counsel.

For reasons explained below,

the complaint is dismissed without prejudice for failure to state
a claim on which relief can be granted, the motion for leave to
amend is denied without prejudice, the motion for appointment of
counsel is denied without prejudice, and plaintiff is given 30

days to file an amended complaint.
I.

The Court’s Obligation to Review the Complaint
At the time this action was filed, the plaintiff was in the

custody of the Department of Correction.

Pursuant to 28 U.S.C. §

1915A, a court is required to screen a prisoner’s complaint
against government employees and dismiss any part of the
complaint that fails to state a claim on which relief may be
granted.

Similarly, 28 U.S.C. § 1915(e)(2) provides that when a

person has been permitted to proceed in forma pauperis, a court
is required to dismiss the case if at any time it determines that
the action fails to state a claim on which relief may be granted.
In accordance with these provisions, this Court is required
to review the allegations of the plaintiff’s complaint to
determine whether the complaint states a claim on which relief
can be granted.

To satisfy this standard, the complaint must

contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face.

See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).

Applying this standard, the Court

concludes that the allegations of the complaint are insufficient
for reasons set forth below.
II.

Allegations of the Complaint
The complaint alleges the following:
On March 8, 2011, the plaintiff was in state court in

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Danielson for the last phase of a 10-year old custody proceeding.
During a recess, he was arrested pursuant to a warrant charging
him with violating a protective order.1

The arrest warrant had

been issued based on an application prepared by Trooper Miller.
The application for the arrest warrant contained “false
allegations.”2

The application also failed to disclose that

Trooper Miller and the “alleged victim” are “related.”

Family

Services Supervisors McManus, Bey, Garrison and Nash knew the
allegations in the warrant application were false.

They also

knew that Trooper Miller and the alleged victim are related.
On March 9, 2011, after a hearing in the criminal case, the
plaintiff was ordered to wear an ankle bracelet as part of a
“pilot program.”

The court ordered that a bracelet be placed on

the plaintiff as a result of false representations by Prosecutor
Barry and Family Services Supervisor McManus regarding the
plaintiff’s criminal record.3

McManus is a college friend of the

“alleged victim.”

1

Connecticut Judicial Branch records available online
indicate that the charge for which the defendant was arrested on
March 8, 2011, was failure to appear in the first degree. See
State v. Diruscio, Docket No. W11D-CR11-0144453-S (Conn. Super.
Ct. Danielson GA 11 and JD). These records indicate that on June
29, 2011, he was arrested for violating a protective order. See
State v. Diruscio, Docket No. W11D-CR11-014506-S (Conn. Super.
Ct. Danielson GA 11 and JD).
2

The false allegations in the arrest warrant are not
specified in the complaint.
3

The false representations concerning the plaintiff’s
criminal record are not specified in the complaint.
3

Public Defender Coulfer represented the plaintiff in the
criminal case.

She refused to let him see a police report,

saying he was not allowed to see it.

He was finally able to get

a copy of the report by having Coulfer send it to another
attorney.

Coulfer tried to have the police report “shredded” but

was unsuccessful.

She gave the plaintiff a “fake page 2" of the

report in an attempt to “suppress evidence” that police had
investigated the underlying incident and found no probable cause.
Attorney Phillips was retained by the plaintiff’s parents to
represent him.

She conspired with Barry, the prosecutor, to

violate the plaintiff’s civil rights.

She also “forged a fee

agreement,” lied to the plaintiff about a police report and, like
Coulfer, gave him a “fake” copy of a page in a police report.
Attorney Brigham represented the plaintiff in connection
with divorce and custody issues.

She showed indifference while

representing him, and lied to him about court proceedings and
case law, causing him mental anguish.
In addition, Phillips, McManus, Barry, Bey, Garrison, Nash
and Brigham “conspired to control the custody case,” and lied to
the plaintiff “about legal terms and custody issues.”
III.

Additional Information
Records of the Connecticut Judicial Branch, which are

publicly available on the internet, show that on December 9,
2011, approximately two months after this action was filed, an

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individual named Frank Diruscio was convicted in Danielson of
violating a protective order (docket number W11D-CR11-0145406-S)
and failure to appear (docket number W11D-CR11-0144453-S) and
received concurrent sentences of two years’ jail suspended after
time served with 2 years’ probation.

The latter docket number is

cited in the plaintiff’s complaint in this case.4

In addition,

the original arrest date in that docket - March 8, 2011 - matches
the date given by the plaintiff in his complaint.

It is

apparent, then, that the plaintiff is the person referred to in
the records.
IV.

Analysis
Plaintiff brings this case under 42 U.S.C. § 1983, which

provides that “[e]very person” who acts “under color of” state
law to deprive another of federal constitutional rights shall be
liable in a suit for damages.

Section 1983 enables a person

whose federal rights have been violated by a state official to
recover money damages for the violation.

To adequately plead a

claim under § 1983, a plaintiff must allege that the conduct
complained of was committed by the defendant while acting under

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In this regard, the complaint alleges: “In addition Marty
Gold, Bethany Phillips, Judge DoSantos and Jennifer Barry,
conspired to suppress discovery evidence by not providing page 2
of [the] police report prepared by Joseph Miller III. Instead at
[a] hearing on June 1st 2011 [they] gave me a fake Page 2 of [the
] police report Docket # W11D-CR11-014453-S. My public defender
Kim Coulfer also withheld [the] police report from me, saying to
me Ct. Law does not allow me to see [it].”
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color of state law and that the defendant’s conduct deprived the
plaintiff of one or more federal rights.

See Rodriguez v.

Phillips, 66 F.3d 470, 473 (2d Cir. 1995).
A.

Under Color of State Law

With regard to the first of these elements, acts are done
“under color of” state law when they are performed by a state
official while the official is purporting to act in the
performance of his or her official duties; that is, the unlawful
acts must consist of an abuse or misuse of power possessed by the
official only because he or she is an official; and the unlawful
acts must be of such a nature, and be committed under such
circumstances, that they would not have occurred but for the fact
that the person committing them was an official, purporting to
exercise official powers.
(1988).

See West v. Atkins, 487 U.S. 42, 49

An otherwise private person can act “under color of”

state law when he or she engages in a conspiracy with state
officials to deprive another of federal rights.

See Tower v.

Glover, 467 U.S. 914, 920 (1984).
In this case, the complaint alleges in conclusory terms that
each of the named defendants acted under color of state law.
These allegations are sufficient with regard to Trooper Miller,
the Family Services Supervisors and Assistant State’s Attorney
Barry, all of whom allegedly engaged in wrongful conduct in
performing official duties.

But they are not sufficient with

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regard to the other defendants.

Attorneys and law firms in the

private sector ordinarily do not act under color of state law and
thus are not subject to suit under § 1983.
New York, 529 F.2d 70, 74 (2d Cir. 1975).

See Fine v. City of
Moreover, a public

defender does not act under color of state law when performing a
lawyer’s functions as counsel to a defendant in a criminal case.
See Polk County v. Dodson, 454 U.S. 312, 325 (1981).5
B.

Deprivation of Federal Right

The second element of plaintiff’s § 1983 claim against each
defendant requires him to allege that the defendant deprived him
of a federal right.

The plaintiff’s principal claims appear to

be that he was arrested and prosecuted without probable cause.
The issuance of a facially valid warrant creates a presumption
that probable cause exists and “a plaintiff who argues that a
warrant was issued on less than probable cause faces a heavy
burden.”

Golino v. New Haven, 950 F.2d 864, 870 (2d Cir.

1991)(internal citations and quotation marks omitted).

To

sustain this burden, the plaintiff must prove that the officer
who obtained the warrant “knowingly and intentionally, or with
reckless disregard for the truth, made a false statement in his
affidavit or omitted material information, and that such false or

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Plaintiff’s conspiracy allegations do not suffice to
allege action under color of state law by his attorneys because,
as discussed later in the text, the allegations are conclusory in
nature.
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omitted information was necessary to the finding of probable
cause.” Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.
1993)(citations and internal quotations omitted); see also Brown
v. D’Amico, 35 F.3d 97, 99 (2d Cir. 1994).

To prevail on a claim

of malicious prosecution under section 1983, the plaintiff must
prove the following: (1) the defendant initiated or procured the
initiation of a criminal prosecution; (2) the criminal proceeding
terminated in the plaintiff’s favor; (3) the defendant acted
without probable cause; and (4) the defendant acted with malice.
See Miles v. City of Hartford, 445 F. App’x 379, 381, 382 (2d
Cir. 2011).

“The existence of probable cause is an absolute

protection against an action for malicious prosecution.”
Vandersluis v. Weil, 176 Conn. 353, 356 (Conn. 1978).
Plaintiff’s allegations regarding his arrest and prosecution
fail to state a claim on which relief can be granted under § 1983
against any of the named defendants because the complaint does
not show that the arrest and prosecution lacked probable cause.
Based on the records of the Connecticut Judicial Branch,
moreover, it is apparent that the plaintiff has been convicted of
the criminal charges underlying this case.

A plaintiff cannot

recover damages under § 1983 for false arrest or malicious
prosecution when he has been convicted of the charges at issue.
See Roesch v. Otarola, 980 F.2d 850, 853-54 (2d Cir. 1992)(false
arrest claim under § 1983 requires plaintiff to show that

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criminal proceeding terminated in his favor); Cameron v. Fogarty,
806 F.2d 380, 386 (2d Cir. 1986)(“[T]he common law rule, equally
applicable to actions asserting false arrest, false imprisonment,
or malicious prosecution, was and is that the plaintiff can under
no circumstances recover if he was convicted of the offense for
which he was arrested.”).
In addition to claiming false arrest and malicious
prosecution, plaintiff also appears to be alleging a conspiracy
to deprive him of due process.

In order to adequately plead a

conspiracy claim under § 1983, a plaintiff must allege (1) an
agreement between two or more state actors (2) to act in concert
to inflict an unconstitutional injury and (3) an overt act done
in furtherance of that goal causing injury.

See Ciambriello v.

County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
Complaints containing only conclusory, vague or general
allegations are properly dismissed.

Id. at 325.

Plaintiff’s conspiracy allegations are conclusory, vague and
general.

The only detail he offers concerns alleged attempts to

prevent him from seeing a police report in a criminal case.
These allegations are insufficient to support a claim as they
fail to allege an agreement to inflict an unconstitutional injury
and an overt act done in furtherance of such a goal.

Moreover,

it is apparent that the police report in question related to the
charge in docket number W11D-CR11-0144453-S, which resulted in a

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conviction.

A plaintiff cannot recover damages under § 1983 for

an alleged violation of due process in a criminal case resulting
in a conviction unless and until the conviction is overturned.
See Heck v. Humphrey, 512 U.S. 477 (1994).
In addition to the claims discussed above, the complaint
appears to be attempting to state a claim against defendants
Barry and McManus with regard to the court order requiring the
plaintiff to wear an ankle bracelet.

The allegations relating to

this claim also fail to state a claim on which relief can be
granted.

To begin with, plaintiff has not identified what

federal right was violated in connection with the bracelet.

Even

assuming the bracelet was a form of restraint on liberty that can
support a § 1983 claim in this case, plaintiff has not alleged
facts showing that Barry or McManus engaged in wrongdoing for
which they can be held liable in a suit for damages.

Prosecutors

are generally immune from liability for damages under § 1983 for
acts performed in furtherance of prosecutorial functions.
Flagler v. Trainor, 663 F.3d 543, 546 (2d Cir. 2011).

See

With

regard to McManus, the allegations of the complaint are vague and
conclusory and therefore insufficient to support a plausible
claim.
Accordingly, the Court concludes that the complaint fails to
state a claim on which relief can be granted under § 1983 against
any of the named defendants.

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V.

Motion to Amend
Plaintiff seeks to amend his complaint to add three new

defendants: G4S, Matthew Kennedy and Attorney St. Clair.

In his

motion, he states that G4S and Kennedy lied to the court about
the bracelet program.

His motion provides no information

concerning any potential claims against St. Clair.

In the

absence of more information, the Court cannot tell whether the
plaintiff has a claim under § 1983 against GS4, Kennedy or St.
Clair.

The motion to amend is therefore denied without

prejudice.
VI.

Motion for Appointment of Counsel
Turning to the motion for appointment of counsel, it is

well-established that pro bono counsel should not be appointed
unless the complaint has probable merit, see Cooper v. A.
Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989), and the
plaintiff is unable to obtain counsel on his own.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).

See Hodge v.
For reasons

discussed above, plaintiff’s claims do not pass the test of
likely merit.

In addition, it is not clear that the plaintiff is

unable to obtain counsel on his own.

In support of his motion,

he states that he tried to obtain counsel while he was in
custody.

He may be better able to obtain counsel now that he has

been released.

Accordingly, the motion for appointment of

counsel is denied without prejudice.

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VII.

Conclusion
For the foregoing reasons, the allegations in the complaint

and the motion to amend fail to show the existence of a claim
under § 1983.

Even so, if plaintiff believes he can state a

valid claim under § 1983 against one or more of the defendants
named in the complaint and motion to amend, he may file an
amended complaint.

The amended complaint must list each

defendant in the caption.

With regard to each named defendant,

the amended complaint must allege facts showing that the
defendant, while acting under color of state law, deprived the
plaintiff of a federal right.

In this regard, the plaintiff must

identify the right allegedly violated by the defendant and also
allege facts showing the violation.

To be timely, the amended

complaint must be filed on or before May 21, 2012.
So ordered this 19th day of April 2012.

__________/s/ RNC______________
Robert N. Chatigny
United States District Judge

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