Plude v. Adams et al

Filing 46

ORDER: Defendants' Motion to Dismiss (Doc. No. 27 ) filed by defendants David L. Guay, Thomas Reynolds and the State Board of Accountancy is hereby GRANTED. All claims against these defendants are dismissed. It is so ordered. Signed by Judge Alvin W. Thompson on 3/11/2013. (Sykes, J.)

United States District Court
District of Connecticut
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:
MICHAEL PLUDE,
:
:
Plaintiff,
:
:
v.
:
:
REBECCA ADAMS, DAVID L. GUAY, :
THOMAS REYNOLDS, JOHN T.
:
PETRILLO, JR., and STATE
:
BOARD OF ACCOUNTANCY.
:
:
Defendants.
:
:
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CASE NO. 3:12CV69(AWT)

ORDER RE MOTION TO DISMISS BY GUAY, REYNOLDS AND SBOA
For the reasons set forth below, Defendants’ Motion to
Dismiss (Doc. No. 27) filed by defendants David L. Guay
(“Guay”), Thomas Reynolds (“Reynolds”) and the State Board of
Accountancy (the “SBOA”) is hereby GRANTED.
The factual allegations in the Complaint and the applicable
legal standard are set forth in the Ruling on Defendant Adams’s
Motion to Dismiss (Doc. No. 45).

They are incorporated by

reference.
I.

Guay
Plude brings § 1983 and common law malicious prosecution

claims against Guay, the SBOA’s Executive Director.

“In order

to prevail on a § 1983 claim against a state actor for malicious
prosecution, a plaintiff must show a violation of his rights
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under the Fourth Amendment and establish the elements of a
malicious prosecution claim under state law.”

Fulton v.

Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (internal citations
ommitted); Christman v. Kick, 342 F. Supp. 2d 82, 91 n.9 (D.
Conn. 2004).

“The Fourth Amendment right implicated in a

malicious prosecution action is the right to be free of
unreasonable seizure of the person—i.e., the right to be free of
unreasonable or unwarranted restraints on personal liberty.”
Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995).

To show a violation of his Fourth Amendment rights, a

Section 1983 plaintiff asserting a malicious prosecution claim
“must…show some deprivation of liberty consistent with the
concept of ‘seizure.’”

Id.; see also Rohman v. N.Y. City

Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (requiring “a
sufficient post-arraignment liberty restraint to implicate the
plaintiff’s Fourth Amendment rights”).

“This requirement is

necessary to ensure that the § 1983 plaintiff has suffered a
harm of constitutional proportions—i.e., a harm cognizable under
§ 1983.”

Singer, 63 F.3d at 116.

“To prevail upon a malicious prosecution claim under
Connecticut law, a plaintiff must prove the following elements:
(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
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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.”

QSP, Inc. v. Aetna Casualty &

Surety Co., 256 Conn. 343, 360 n. 16 (2001).
As to the § 1983 claim, there is no allegation that Plude
ever suffered a deprivation of liberty consistent with a
seizure.

Nothing in the Complaint can support a conclusion that

Plude was seized in connection with the proceedings before the
SBOA.
The plaintiff also fails to plead facts that could
establish the elements of a malicious prosecution claim under
state law. Plude fails to identify any action Guay took to
initiate or procure the initiation of criminal proceedings
against him.

Rather, the allegations in the Complaint make it

clear that an administrative proceeding was instituted against
Plude by the SBOA based on Guay’s decision.
Therefore, the court concludes that the plaintiff has
failed to state a malicious prosecution claim against Guay under
either § 1983 or Connecticut law, and the Complaint should be
dismissed as to this defendant.
II.

Reynolds
The plaintiff brings a common law claim for defamation

against Reynolds.

Plude alleges that Reynolds is the Chairman

of the SBOA and has responsibility for ensuring that the
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information posted on the agency’s website is accurate.

He

alleges that the SBOA published minutes of the January 5, 2010
meeting, reflecting the action taken against him, and posted
those minutes on its public website.

He contends that “[i]n its

minutes, it referred to the plaintiff as a threat to the
public’s fiscal health, fiscal safety, and fiscal welfare.”
Pl.’s Resp. at 10-11.

Plude further alleges that the SBOA voted

to amend the minutes posted on the website to remove the
material that was injurious to his reputation but that Reynolds
has refused to remove the original posting.
In Butz v. Economou, the Supreme Court recognized that
“there are some officials whose special functions require a full
exemption for liability,” including certain “quasi-judicial”
agency officials who, irrespective of their title, perform
functions essentially similar to those of judges or prosecutors,
in a setting similar to that of a court
512 (1978).

438 U.S. 478, 508, 511-

The Court concluded that “the risk of an

unconstitutional act by one presiding at an agency hearing is
clearly outweighed by the importance of preserving the
independent judgment of these men and women” and that “persons
subject to these restraints and performing adjudicatory
functions within a federal agency are entitled to absolute
immunity from damages liability for their judicial acts.”
at 514.

Id.

“Those who complain of error in such proceedings must
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seek agency or judicial review.”

Id.

In addition, when a

quasi-judicial function is being performed, absolute immunity
extends to not only members of commissions and boards but also
to their staff members.

See Bettencourt v. Bd. of Registration

in Med. of Comm. of Mass., 904 F.2d 772, 784 (1st Cir. 1990)
(absolute immunity barred claims against members of board of
medical examiners and staff, including its legal adviser); Bass
v. Attardi, 868 F.2d 45, 50-51 (3d Cir. 1989) (absolute immunity
barred claims against municipal planning board members and the
board’s counsel in their individual capacities); Oliva v.
Heller, 839 F.2d 37, 40 (2d Cir. 1988) (absolute immunity barred
claims against law clerks who assisted judges in carrying out
judicial functions).
In Rosa v. California, the court held that employees of
state boards of accountancy are entitled to prosecutorial
immunity because “these defendants were behaving as prosecutors
in an adjudicative process.”

2005 WL 1899515, at *6 (E.D. Cal.

Aug. 5, 2005), aff’d, 259 F. App’x 918 (9th Cir. 2007).

The

court found that “all of the allegations of misconduct
plaintiffs make against the agents and employees of the Attorney
General’s office involve actions undertaken in connection with
the prosecution of plaintiff and the eventual revocation of his
CPA license.”

Id.

The court concluded that “the hearings

before the CBA [California Board of Accountancy] and an
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administrative law judge are, at a minimum, quasi-judicial” and
that “the actions taken by the CBA, its agents and employees in
revoking the plaintiff’s license, and later denying his
application for reinstatement, were closely associated with this
process.”

Id.

A review of the statutes creating and governing the SBOA
shows that it is empowered to perform a quasi-judicial function.
The SBOA is empowered to “administer oaths, issue subpoenas,
compel testimony and order the production of books, records and
documents.”

Conn Gen. Stat. § 20-280b(a).

If a party refuses

to comply with such a request, the SBOA may seek an order from
the Superior Court as required.

See id.

The SBOA is expressly

empowered to assess civil penalties up to $50,000 for violations
of general statutes or any regulations related to the profession
of public accountancy.

See Conn. Gen. Stat. § 20-280b(b).

Finally, the procedural protections provided respondents include
the opportunity for appeal.

See Conn. Gen. Stat. § 20-280b(a).

In fact, the plaintiff concedes that the SBOA is a “quasijudicial authority with decision-making powers.”

Pl.’s Resp. at

9.
In Rioux v. Barry, the Connecticut Supreme Court stated
that “[w]e consistently have held that absolute immunity bars
defamation claims that arise from statements made in the course
of judicial or quasi-judicial hearings.”
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283 Conn. 338, 344-45

(2007). Here, although Plude complains that Reynolds has not
removed the original posting from the SBOA’s website, his cause
of action is for defamation.

The allegedly defamatory

statements appear in the minutes of the January 5, 2010 hearing
and thus reflect statements made during that hearing.

As such,

the defamatory statements are ones that were made in the course
of a quasi-judicial hearing and Plude’s claim for defamation
consequently arises from statements made in the course of a
quasi-judicial hearing.

Therefore, it is barred by absolute

immunity, for reasons explained in Rioux v. Barry.
III.

The SBOA
The plaintiff brings claims against the SBOA for violations

of his rights to procedural and substantive due process.
In his opposition to the motion to dismiss, Plude argues
that he is alleging with respect to the SBOA a violation of his
due process liberty interest and asserting a “stigma plus”
claim.

See Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005).

To prevail on a “stigma plus” claim, a plaintiff must show
“(1) the utterance of a statement about him or her sufficiently
derogatory to injure his or her reputation, that is capable of
being proved false, and that he or she claims is false,” and (2)
a material state-imposed burden or state-imposed alteration of
the plaintiff’s status or rights.”

Doe v. Dep’t of Pub. Safety

ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001) (citing Paul v.
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Davis, 424 U.S. 693, 701-02, 710-11 (1976)), rev’d on other
grounds sub nom. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1,
6-7 (2003).

The state-imposed burden or alteration of status

must be “in addition to the stigmatizing statement.”

Id.

Thus,

even where a plaintiff’s allegations would be sufficient to
demonstrate a government-imposed stigma, such defamation is not,
absent more, a deprivation of a liberty or property interest
protected by due process.

Siegert v. Gilley, 500 U.S. 226, 233

(1991); see also Morris v. Lindau, 196 F.3d 102, 114 (2d Cir.
1999) (defining “stigma plus” as the “loss of reputation coupled
with some other tangible element” (internal quotation marks
omitted)).

Moreover, “deleterious effects [flowing] directly

from a sullied reputation,” standing alone, does not constitute
a “plus” under the “stigma plus” doctrine.
F.3d 992, 1001 (2d Cir. 1994).

Valmonte v. Bane, 18

The Second Circuit observed

that:
Because “[a] free-standing defamatory statement ... is not
a constitutional deprivation,” but is instead “properly
viewed as a state tort of defamation,” id. [Donato v.
Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623,
631-32 (2d Cir. 1996), the “plus” imposed by the defendant
must be a specific and adverse action clearly restricting
the plaintiff's liberty-for example, the loss of
employment, see, e.g., Siegert v. Gilley, 500 U.S. 226,
233, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (noting that
“[d]efamation, by itself, is a tort actionable under the
laws of most States, but not a constitutional deprivation,”
and that absent a “plus,” stigmatizing statements do not
give rise to constitutional claims), or the “termination or
alteration of some other legal right or status,” Neu v.
Corcoran, 869 F.2d 662, 667 (2d Cir. 1989).
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Velez, 401 F.3d at 87-88.
Plude has failed to allege the additional state-imposed
burden necessary to properly plead the “stigma plus” doctrine.
The Complaint alleges only that the “plaintiff continues to
suffer actual harm as a result of the minutes, which hold him
out to be a danger to the public and a criminal.”

Compl. ¶ 42.

These harms, however, are not “in addition to” the alleged
defamation but rather are direct “deleterious effects” of that
defamation.

Plude does not allege that the SBOA either revoked

or suspended his CPA license.

Because Plude has not alleged a

material state-imposed burden or state-imposed alteration of his
status or rights, he has not alleged a “plus” sufficient to
state a “stigma plus” claim.
Plude also advances what he concedes is a novel argument
that the “plus” requirement is satisfied by “the loss of the
tangible interest in legal fees necessary to secure the
agreement to remove the material.”

Pl.’s Resp. at 13.

The

court finds this argument unpersuasive because it is not tied to
a restriction on the plaintiff’s liberty.

See Neu v. Corcoran,

869 F.2d 662.
Finally, the plaintiff argues that if the court concludes
that he has failed to allege a “stigma plus” procedural due
process claim, his claim should be construed as a substantive

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due process claim.

“Where a particular Amendment provides an

explicit textual source of constitutional protection against a
particular sort of government behavior, that Amendment, not the
more generalized notion of substantive due process, must be the
guide for analyzing these claims.”

Albright v. Oliver, 510 U.S.

266, 272-73 (1994); see also Medeiros v. O’Connell, 150 F.3d 164
(2d Cir. 1998); Singer v. Fulton County Sherriff, 63 F.3d 110,
114 (2d Cir. 1995) (same). Motivating this principle is the
rationale that “the Court has always been reluctant to expand
the concept of substantive due process because the guideposts
for responsible decision-making in this uncharted area are
scarce and open-ended.”

Singer, 63 F.3d at 115 (quoting

Albright, 510 U.S. at 812).

Here, the plaintiffs’ alleged

substantive due process claim is merely duplicative of his
procedural due process claim and properly analyzed as a “stigma
plus” claim.
Therefore, the court concludes that the plaintiff has
failed to state either a procedural due process claim or a
substantive due process claim against the SBOA.
IV.

CONCLUSION
Accordingly, the court grants the Motion to Dismiss (Doc.

No. 27) in relation to Guay, Reynolds and the SBOA.
against these defendants are dismissed.
It is so ordered.
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All claims

Signed this 11th day of March, 2013 at Hartford,
Connecticut.
____________/s/_____________
Alvin W. Thompson
United States District Judge

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