Mpala v. Funaro et al

Filing 112

RULING. For the reasons articulated in the attached Ruling, plaintiff's 95 MOTION to Reopen Case, MOTION to Amend/Correct 1 Complaint is DENIED; plaintiff's 96 MOTION for Sanctions is DENIED, as moot; and defendants' 104 MOTION for Reconsideration is GRANTED, but upon reconsideration, the Court adheres to its prior order. Signed by Judge Sarah A. L. Merriam on 4/13/2017. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
ZEWEE MPALA
:
:
v.
:
:
JOSEPH FUNARO, M. PITONIAK,
:
S. KLOSTCHE AND E. RAPUANO
:
:
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Civ. No. 3:13CV00252(SALM)

April 13, 2017

RULING ON PENDING MOTIONS [DOC. ##95, 96, 104]
Pending before the Court are two motions by selfrepresented plaintiff Zewee Mpala (“plaintiff”), the first to
reopen the case and file an amended complaint [Doc. #95], and
the second for sanctions against defendants Joseph Funaro,
Martin Pitoniak and Eric Rapuano (collectively the “defendants”)
[Doc. #96]. Defendants have filed timely objections to these
motions, [Doc. ##103, 105], to which plaintiff has filed replies
[Doc. ##108, 109, 110]. Also pending before the Court is
defendants’ motion for reconsideration of the Court’s order
terminating the appearance of plaintiff’s former attorney Thomas
Lengyel. [Doc. #104]. For the reasons articulated below, the
plaintiff’s motion for permission to reopen and refile complaint
[Doc. #95] is DENIED; plaintiff’s motion for sanctions [Doc.
#96] is DENIED, as moot; and defendants’ motion for
reconsideration [Doc. #104] is GRANTED, but upon
reconsideration, the Court adheres to its prior order.
1

I.

Background
The plaintiff brought this action against defendants

asserting claims of malicious prosecution and false arrest.1
Plaintiff was arrested by the defendants, all officers of the
Yale Police Department, in the Yale Law School building on March
6, 2010. See Doc. #57 at 2. Plaintiff was charged with two
offenses under Connecticut law: criminal trespass in the second
degree, in violation of Connecticut General Statutes §53a-108,
and interfering with an officer, in violation of Connecticut
General Statutes §53a-167a. See Doc. #1, Complaint at ¶10. These
charges were heard in Connecticut Superior Court on April 6,
2011, together with a separate charge of trespassing arising out
of plaintiff’s arrest on Yale property in September 2010.2 See
Doc. #58-2.
At the April 6, 2011, hearing, the State agreed to “enter
nolles on both files.” Doc. #58-2, Tr. 2:23-2. Attorney Michael
Richards, who was the attorney representing plaintiff, moved for
the cases to be dismissed with prejudice rather than nolled. See
id. at Tr. 2:27-3:1. The State agreed, on the condition that

Plaintiff also named as a defendant Ernest Klostche. On August
27, 2013, the action against Ernest Klostche was dismissed.
[Doc. #17].
1

Plaintiff filed a separate suit in this Court alleging that the
September 2010 arrest was unlawful. See Mpala v. Sires,
3:13CV01226(AVC). Summary judgment was granted in favor of the
defendant in that matter, and on reconsideration, the Court
adhered to that ruling. See id., Doc. #37, Doc. #45.
2

2

plaintiff stipulate to the presence of probable cause for the
arrests. See id. at Tr. 3:2-4. After some discussion amongst
counsel and the Court, all parties agreed that such a
stipulation could be entered on plaintiff’s behalf by his
attorney without plaintiff’s physical presence. See id. Tr. 3:510. The stipulation was entered, and the cases were dismissed
with prejudice. See id.
On February 25, 2013, plaintiff filed the instant action
alleging claims under 42 U.S.C. §§1983 and 1988 for malicious
prosecution and false arrest. See generally Doc. #1, Complaint.
The defendants filed a Motion for Summary Judgment on May 21,
2015. [Doc. #56]. New counsel, Thomas J. Lengyel, appeared for
plaintiff on July 31, 2015, and oral argument on the motion for
summary judgment was conducted before the Court on October 30,
2015. [Doc. ##63, 64].
The Court granted the defendants’ motion for summary
judgment on two grounds. First, the Court found that the
stipulation of probable cause made by Attorney Richards in the
state court criminal case is valid and binding on plaintiff, and
because the absence of probable cause is a necessary element of
both a false arrest and a malicious prosecution claim, plaintiff
could not prevail on either of his claims. See Doc. #74 at 7-16.
Second, the Court found that even if there had been no
stipulation, there was no genuine issue of material fact as to
3

the presence of probable cause for both arrests, and summary
judgment in favor of the defendants would be appropriate on that
basis as well. See id. at 16-19.
On January 31, 2017, by summary order, the Second Circuit
Court of Appeals affirmed the undersigned’s ruling granting
defendants’ Motion for Summary Judgment. See Impala v. Funaro,
No. 16-351 (2d Cir. Jan. 31, 2017). The mandate issued on March
2, 2017. [Doc. #102].
On February 17, 2017, plaintiff filed a pro se appearance,
along with a motion for permission to reopen and refile
complaint [Doc. #95] and a motion for sanctions [Doc. #96].
Defendants have timely objected to these motions.3
II.

Motion to Reopen [Doc. #95]
Plaintiff has filed a motion to reopen the judgment entered

in this matter and for leave to file an amended complaint on the
grounds that (1) defendants and plaintiff’s prior attorney John
Williams entered into a “tacit Conspiracy to Fraudulent
Concealed evidence from the Plaintiff & this Court” (sic) and
(2) that Yale, a non-party to this action, failed to preserve
the surveillance video of his arrest. Doc. #95 at 1. Defendants
generally argue in opposition that plaintiff’s claims are

The Court will address the background relating to the Motion
for Reconsideration in the section addressing that motion. See
Section IV, infra.
3

4

procedurally barred, and in any event, entirely without merit.
See generally Doc. #103 at 22.
The Court construes plaintiff’s motion as being made
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,
which establishes the standards by which a Court considers a
motion for relief from final judgment.4 Rule 60(b) “should be
broadly construed to do substantial justice, yet final judgments
should not be lightly reopened.” Nemaizer v. Baker, 793 F.2d 58,
61 (2d Cir. 1986) (internal citations and quotation marks
omitted). “Since 60(b) allows extraordinary judicial relief, it
is invoked only upon a showing of exceptional circumstances. A
motion seeking such relief is addressed to the sound discretion
of the district court with appellate review limited to
determining whether that discretion has been abused.” Id. at 6162 (internal citations omitted).

In reply, plaintiff contends that he is not moving under Rule
60(b), but pursuant to Perry v. Stamford, 996 F. Supp. 2d 74 (D.
Conn. 2014). See Doc. #107-1 at 1. Perry is inapplicable as it
was decided at the summary judgment stage, not after the entry
of judgment. See id. at 76. Plaintiff also states that he is
moving pursuant to In re Sims, 534 F.3d 117 (2d Cir. 2008),
which plaintiff cites for the proposition that the Court should
afford greater leeway to self-represented parties as to the
application of procedural rules governing litigation. See Doc.
#107-1 at 2. The Court acknowledges these cases. However, these
cases do not form a basis pursuant to which plaintiff may now
seek relief. Accordingly, the Court construes plaintiff’s motion
to reopen as having been made pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure.
4

5

A. Rule 60(b)(1)-(3)
In pertinent part, Rule 60(b) provides for relief from
judgment on the following grounds: “(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
that, with reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b); [and]
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party[.]” Fed.
R. Civ. P. 60(b)(1)-(3). A motion seeking relief under these
subsections must be made “no more than a year after the entry of
the judgment[.]” Fed. R. Civ. P. 60(c)(1). The filing of an
appeal does not toll this one-year limitation. See King v. First
Am. Investigations, Inc., 287 F.3d 91, 94 (2d Cir. 2002)
(collecting cases). Here, judgment entered in favor of the
defendants on November 20, 2015. [Doc. #76]. Plaintiff did not
file his motion to reopen until February 17, 2017, well after
the one-year time limitation imposed by Rule 60(c)(1).
Accordingly, to the extent plaintiff’s motion was filed pursuant
to Rule 60(b)(1)-(3), it is DENIED, as untimely.
B. Rules 60(b)(6) & 60(d)(3)
Because plaintiff is self-represented, the Court construes
his filings to raise the strongest arguments suggested. See
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (“Because
Burgos is a pro se litigant, we read his supporting papers
6

liberally, and will interpret them to raise the strongest
arguments that they suggest.” (citation omitted)). Here, because
plaintiff claims the defendants and his prior attorney
fraudulently concealed evidence from the Court, and that Yale
failed to preserve surveillance video of his arrest, the Court
alternatively construes this as a claim made pursuant to Rules
60(b)(6), which permits a Court to provide relief from judgment
for “any other reason that justifies relief[,]” Fed. R. Civ. P.
60(b)(6), and Rule 60(d)(3), which permits a Court to “set aside
a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3).
Notably, motions made pursuant to these subsections are not
subject to the one-year time limitation. See King, 287 F.3d at
95 (A “motion to vacate for fraud committed upon the court is
not subject to the one year limitation period.” (citing Rule
60(b)).
“Fraud upon the court” under this Rule is limited to that
“which seriously affects the integrity of the normal process of
adjudication. Fraud upon the court should embrace only that
species of fraud which does or attempts to, defile the court
itself, or is a fraud perpetrated by officers of the court so
that the judicial machinery cannot perform in the usual manner
its impartial task of adjudging cases.” Id. (internal citations
and quotation marks omitted). The party alleging fraud upon the
court as a basis for relief from judgment must establish such
7

fraud by “clear and convincing evidence.” Id. (citation
omitted). The “essence of a fraud upon the court[]” is “when a
party lies to the court and his adversary intentionally,
repeatedly, and about issues that are central to the truthfinding process[.]” McMunn v. Mem’l Sloan-Kettering Cancer Ctr.,
191 F. Supp. 2d 440, 445 (S.D.N.Y. 2002).
As to plaintiff’s claim that Yale’s failure to preserve the
surveillance video of his arrest constitutes a fraud upon the
Court, plaintiff’s motion conclusorily states: “The Plain-Tiff
requested the preservation of this evidence prior to the bogus
Stipulation and it was destroyed.” Doc. #95 at 1 (sic).
Plaintiff has failed to present the clear and convincing
evidence necessary to establish that the alleged spoliation of
the surveillance video constitutes a fraud upon the Court.
Indeed, Yale, which presumably had custody and control over the
video, is not a party to this action, and thus, the Court cannot
reasonably find that “a party [has] lie[d] to the court and his
adversary intentionally, repeatedly, and about issues that are
central to the truth-finding process[.]” Id.
Next, plaintiff conclusorily alleges that his prior
attorney, John Williams, and counsel for defendants, Kevin Shea,
“had a tacit Conspiracy and fraudulent Concealed evidence from
the Court & the plaintiff that the Public Defendant on Record
(See the 3/23rd 2011 tr. Attached)[.]” Doc. #95 at 3 (sic).
8

Plaintiff’s reply brief sets forth similar conclusory
statements. See generally Doc. #107-1 at 1-2. Such speculative,
vague and unsupported allegations fail to present the clear and
convincing evidence necessary for the Court to find that a fraud
has been committed. Further, although the Court did not have the
benefit of the March 23, 2011, transcript attached to
plaintiff’s motion at the time it entered the summary judgment
ruling, there are no allegations to suggest that the failure to
provide this document to the Court was the result of fraud, by
anyone. Simply, the conduct alleged by plaintiff in his motion
does not rise to the level of a fraud committed upon the Court.5

To the extent plaintiff seeks to reopen on the basis of the
discovery of new evidence, he must establish, in pertinent part,
that he was “justifiably ignorant” of the transcript’s existence
“despite due diligence.” Opals on Ice Lingerie v. BodyLines,
Inc., 425 F. Supp. 286, 292 (E.D.N.Y. 2004). There are no
allegations to support a finding that plaintiff was ignorant of
the March 23, 2011, transcript. Additionally, any such motion
brought on the basis of newly discovered evidence would have to
be brought pursuant to Rule 60(b)(2), which as stated above,
would now be time barred. In that regard, the Court notes that
“a party may not circumvent the one-year limit by bringing a
motion under a different subsection that should properly be
brought under 60(b)(1)-(3).” Wright v. Poole, 81 F. Supp. 3d
280, 290 (S.D.N.Y. 2014). Additionally, to prevail under Rule
60(b)(2), the movant must establish, inter alia, that the
evidence is “of such importance that it probably would have
changed the outcome[.]” United States v. Int’l Brotherhood of
Teamsters, 247 F.3d 370, 391 (2d Cir. 2001) (citation omitted).
As will be discussed further below, the presence of the
transcript would not have changed that portion of the Court’s
summary judgment ruling finding that there was probable cause to
arrest plaintiff for both charges. See Doc. #76 at 16-19.
5

9

Further, plaintiff’s motion ignores one of two bases upon
which the Court granted summary judgment – that there was
undisputed evidence as to the existence of probable cause
supporting plaintiff’s arrest as to both charges. See Doc. #76
at 16 (“Even in the absence of the stipulation, however, there
is no genuine issue of material fact as to the presence of
probable cause, and summary judgment in favor of the defendants
would be appropriate.”). The Second Circuit explicitly affirmed
the Court’s summary judgment ruling on this basis, and did “not
address the district court’s alternate holding that the
stipulation was valid and enforceable.” Doc. #102 at 3.
Accordingly, the Court’s summary judgment ruling, as affirmed,
is unaffected by the presence of the transcript, which related
only to the first, alternate basis, for the Court’s summary
judgment ruling. Accordingly, the issue of the transcript is
entirely irrelevant to that portion of the Court’s summary
judgment ruling that formed the basis for the Appeals Court’s
affirmance. The Court finds no grounds to reopen this matter
under either Rule 60(d)(3) or 60(b)(6). Therefore, plaintiff’s
motion to reopen [Doc. #95] is DENIED.
Additionally, because plaintiff has failed to establish
grounds which would justify reopening the judgment, plaintiff’s
request to amend his complaint is also DENIED. See Nat’l
Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244
10

(2d Cir. 1991) (“It has been held that once judgment is entered
the filing of an amended complaint is not permissible until
judgment is set aside or vacated pursuant to Fed. R. Civ. P.
59(e) or 60(b).” (collecting cases) (internal quotation marks
omitted)).
C. Defendants’ Request for a Filing Injunction
Finally, defendants request that the Court “enter an order
precluding plaintiff from filing, without first seeking
permission, subsequent pleadings regarding the issues that have
been thoroughly adjudicated in this case.” Doc. #103 at 21. “A
district court has the authority to enjoin a plaintiff who
engages in a pattern of vexatious litigation from continuing to
do so.” In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D.
124, 131 (S.D.N.Y. 1999) (citing Safir v. United States Lines,
Inc., 792 F.2d 19, 23 (2d Cir. 1986)). Although defendants point
to four other cases in which plaintiff has filed complaints in
connection with his use of Connecticut public libraries, the
record before the Court is not sufficient to establish that
plaintiff is a “vexatious” litigant, or that plaintiff has
“abused his litigation opportunities[.]” Id. (quoting In re
Martin-Trigona, 9 F.3d 226, 228 (2d Cir. 1993)). Here
particularly, the Court is unable to discern what further
actions plaintiff could take in connection with this matter.
Indeed, the Court has the ability to oversee the management of
11

its docket, and in the instance it appears plaintiff is becoming
vexatious in this matter, the Court may revisit this issue.
However, on the current record, the Court declines to impose a
filing injunction as requested by defendants.
III. Motion for Sanctions [Doc. #96]
Plaintiff moves under Federal Rule of Civil Procedure 37
for an order imposing sanctions on defendants “as a remedy for
the Defs., spoliation of critical evidence for the purpose of
depriving Plaintiff of its use.” Doc. #96 at 1 (sic). Plaintiff
contends that defendants failed to preserve the surveillance
video, 911 call, and “Police Radio Comm.,” and thus “requests an
adverse inference instruction permitting the jury to infer that
Certain security surv., footage was destroyed by the Defs[.]”
Doc. #96 at 1. Plaintiff also requests that the Court “award him
reasonable attorney’s fees pursuant to Rule 37(a)(5)(a).” Id.
(sic). Defendants object to plaintiff’s motion on several
grounds, including: (1) imposing sanctions would be inconsistent
with the mandate; (2) plaintiff has failed to comply with this
District’s Local Rule 37; and (3) plaintiff has failed to make a
sufficient showing to support a finding of spoliation. See
generally Doc. #105.
In light of the Court’s denial of plaintiff’s motion to
reopen and refile complaint, supra, plaintiff’s Motion for
Sanctions [Doc. #96] is DENIED, as moot.
12

Plaintiff’s motion for sanctions is also procedurally
defective as he has failed to comply with this District’s Local
Rule 37 of Civil Procedure in that plaintiff failed to (1)
confer with opposing counsel before filing the motion and (2)
file an affidavit certifying that he conferred with opposing
counsel in a good faith effort to resolve the dispute. See D.
Conn. L. R. Civ. P. 37(a). Although plaintiff is now proceeding
as a self-represented party, he must nevertheless abide by the
strictures of the Federal and Local Rules of Civil Procedure.
See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995)
(“Although pro se litigants should be afforded latitude, they
generally are required to inform themselves regarding procedural
rules and to comply with them[.] This is especially true in
civil litigation.” (internal citations and quotation marks
omitted)); Ryder v. Washington Mut. Bank, F.A., 501 F. Supp. 2d
311, 314 (D. Conn. 2007) (“[P]ro se parties are not excused from
abiding by the Federal Rules of Civil Procedure.” (citation
omitted)).
Thus, for the reasons stated, plaintiff’s Motion for
Sanctions [Doc. #96] is DENIED, as moot.6

The Court further notes that although plaintiff seeks
sanctions against the individual officer defendants for the
alleged spoliation of the surveillance video, none of the
defendants is alleged to have maintained custody or control over
the video.
6

13

IV.

Motion for Reconsideration [Doc. #104]
On February 21, 2017, plaintiff filed a pro se appearance.

[Doc. #94]. On March 2, 2017, the Court ordered that his thenattorneys of record file motions to withdraw if plaintiff
intended to proceed as a self-represented party. [Doc. #97]. On
March 4, 2017, Attorneys John Williams and Katrena Engstrom
moved to withdraw their appearances in this matter, which the
Court granted on March 6, 2017. [Doc. ##98, 100]. On March 6,
2017, plaintiff filed a motion to withdraw the appearance of
Attorney Thomas J. Lengyel, which the Court granted on March 7,
2017. [Doc. ##99, 101]. On March 9, 2017, defendants filed a
motion for reconsideration of the Court’s order terminating
Attorney Lengyel’s appearance. [Doc. #104].
A. Legal Standard
“The standard for granting [a motion for reconsideration]
is strict, and 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). Three grounds can justify reconsideration: “an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l
14

Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C.
Wright, A. Miller & E. Cooper, Federal Practice & Procedure
§4478 at 90).
B. Discussion
Defendants present two arguments in support of their motion
for reconsideration: (1) that the granting of the motion to
withdraw is inconsistent with the spirit of the mandate; and (2)
the granting of the motion to withdraw will “delay[] the
administration of justice and result[] in further undue
prejudice to the defendants.” Doc. #104 at 5-6. Defendants seek
reconsideration because the Court granted plaintiff’s motion to
withdraw the appearance of Attorney Lengyel before defendants
had an opportunity to object. See id. at 6. The motion for
reconsideration [Doc. #104] is GRANTED to permit the Court to
consider defendants’ objection, but upon reconsideration, the
Court adheres to its prior order.
First, the granting of plaintiff’s motion to withdraw does
not violate the spirit of the mandate in light of the Court’s
denial of plaintiff’s motion to reopen and motion for sanctions.
Additionally, as noted in the Court’s Order, “there is no
right to counsel in civil cases.” See Doc. #101 (quoting Awolesi
v. Shineski, 31 F. Supp. 2d 534, 539 (W.D.N.Y. 2014)). Although
defense counsel may prefer to litigate against counsel as
opposed to a self-represented party, defense counsel is not
15

entitled to such a preference at this stage of the proceedings.
See, e.g., Antonmarchi v. Consol. Edison Co. of N.Y., 678 F.
Supp. 2d 235, 239-40 (S.D.N.Y. 2010) (granting plaintiff’s
motion to discharge counsel and proceed pro se where the motion
was made before trial, plaintiff was not seeking “hybrid
representation,” and where plaintiff was not attempting to
proceed on behalf of a corporation or minor). Accordingly, where
plaintiff seeks to proceed in his own name, does not seek hybrid
representation, and the case is in a post-judgment posture, he
“may plead and conduct [his] own cases personally[.]” 28 U.S.C.
§1654.
Next, defendants contend that the withdrawal of Attorney
Lengyel will delay the administration of justice and will
prejudice defendants as they will be forced to respond to
“plaintiff’s procedurally barred and meritless pro se
filings[.]” Doc. #104 at 7. Although the Court appreciates the
difficulties that may be encountered in litigating against a
self-represented party, defendants’ concerns are not entirely
justified. The Court closely manages its docket to ensure that
all disputes are timely resolved. Additionally, in the event
that plaintiff files any further motions, the Court will first
review the same and then invite defendants to respond only if
the Court believes a response is necessary. This approach should

16

alleviate the alleged prejudice suffered as a result of
plaintiff filing any baseless motions.
Therefore, the Court adheres to its prior order granting
plaintiff’s motion to withdraw the appearance of Attorney
Lengyel. See Doc. #101.
V.

Conclusion
Accordingly, for the reasons stated, plaintiff’s motion for

permission to reopen and refile complaint [Doc. #95] is DENIED;
plaintiff’s motion for sanctions [Doc. #96] is DENIED, as moot;
and defendants’ motion for reconsideration [Doc. #104] is
GRANTED, but on reconsideration the Court adheres to its prior
order.
SO ORDERED at New Haven, Connecticut, this 13th day of April
2017.
_____/s/_____________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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