Cayo v. Sefceik et al

Filing 62

ORDER granting 41 Motion to Dismiss; granting 44 Motion to Dismiss. The Clerk is directed to close this case. Signed by Judge Janet Bond Arterton on 7/11/2014. (Morril, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANDRE CAYO,
Plaintiff,
v.
DANIEL SEFCIK and ANTHONY GUILIANO,1
Defendants.

Civil No. 3:14cv38 (JBA)

July 11, 2014

RULING ON DEFENDANTS’ MOTION TO DISMISS
Defendants Norwalk Police Officer Daniel Sefcik and State Trooper Anthony
Guiliano move [Doc. ## 41, 44] to dismiss Plaintiff Andre Cayo’s complaint alleging
malicious prosecution arising out of his arrest and acquittal on allegations that he stalked
a housing court mediator. For the reasons that follow, Defendants’ motions are granted.2
I.

Allegations
Plaintiff’s Second Amended Verified Complaint alleges that on November 12,

2010, Magalie Semexant-Coffy, a Mediation Specialist at the Superior Court Housing
Session at Norwalk, gave a “false and unfounded” “accusatory statement” to Norwalk
Police Officer Daniel Sefcik in which she accused Mr. Cayo of stalking and harassing her
for the prior six weeks by coming to the courthouse where she worked and staring at her
and threatening the life and safety of her and her family and children. (2d Am. Compl.

1

Plaintiff refers to Defendants as “Sefceik” and “Giuliano,” however, the correct
spellings of their names are “Sefcik” and “Guiliano.” The Clerk is directed to amend the
caption accordingly.
2

The Court scheduled [Doc. # 60] oral argument on these motions for July 10,
2014, however, Plaintiff, an attorney proceeding pro se, did not appear and the Court
elected to rule on these motions on the basis of the pleadings. See Loc. Civ. R. 7(a)
(“[T]he Judge may, in his or her discretion,” rule on a motion without oral argument.).

[Doc. # 37] ¶¶ 1–2, 4, 6–7.) Ms. Semexant-Coffy also reported that her sister-in-law,
Chantal Coffy, told her that Mr. Cayo had said to her, “I am the last Haitian she is going
to [f**k] with.” (Id. ¶ 6.) Mr. Cayo contends that all of Ms. Semexant-Coffy’s allegations
were false and “malicious” and made “in retaliation” for a complaint that Mr. Cayo filed
against her after she served as a mediator in a landlord-tenant dispute in which Mr. Cayo
assisted his uncle.3 (Id. ¶ 8.)
As a result of Ms. Semexant-Coffy’s allegations, on November 16, 2010,
Defendant Sefcik “stormed into [Mr. Cayo’s] apartment without a warrant, and
announced he was ‘looking for Andre, where’s Andre?’” and asked him if he knew Ms.
Semexant-Coffy. (Id. ¶ 9.) Mr. Cayo identified himself and responded that he knew her
from Norwalk housing court and Officer Sefcik replied, “I want you to stop going to the
courthouse, and stalking and harassing her.” (Id. ¶ 10.) When Mr. Cayo tried to tell
Officer Sefcik his side of the story, he stated “I don’t care, I don’t care.” (Id. ¶ 12.) Mr.
Cayo told Officer Sefcik “to arrest him if he had a warrant, and the officer stated he was
going to arrest the Plaintiff, and then left.” (Id. ¶ 13.) Later that day, Officer Sefcik took a
statement from the Deputy Chief Clerk of the Housing Session at Norwalk, Edmond

3

According to documents referenced in the complaint and provided by
Defendant Guiliano, Ms. Semexant-Coffy mediated a case between Mr. Cayo’s uncle and
his tenant. Mr. Cayo attempted to serve as his uncle’s Creole translator, but Ms.
Semexant-Coffy informed him that a court-provided interpreter was required and the
proceeding would have to be adjourned. Mr. Cayo then allegedly said to his uncle in
Creole that he would pretend to be him during trial not realizing that Ms. SemexantCoffy was a fluent Creole speaker and could understand him. Ms. Semexant-Coffy told
Mr. Cayo that she understood what he had said and that at trial he would have to prove
he was the landlord. (See Arrest Warrant Application, Ex. A to Guiliano’s Mot. to
Dismiss [Doc. # 48] at 2.)
2

O’Garro, who stated that Plaintiff had been in the courthouse on six occasions “stalking”
Ms. Semexant-Coffy after his dispute with her during his uncle’s proceeding. (Id. ¶ 15.)
Officer Sefcik sought an arrest warrant but was told by an assistant state’s attorney
that the case had to be transferred to the State Police because it involved a state-court
employee. (Id. ¶ 16.) On November 18, 2010, State Trooper Anthony Guiliano himself
took a statement from Ms. Semexant-Coffy “in which she reported that” Chantal Coffy
“had told her that the Plaintiff said ‘I am the last Haitian [Ms. Semexant-Coffy] [f**ked]
with’ and that she was so scared for her life and the life of her family that she had to send
an email to the school . . . of her children to tell them not to let the kids out.” (Id. ¶ 17.)
The following day, Trooper Guiliano applied for and received an arrest warrant
on the basis of Ms. Semexant-Coffy’s “false allegations . . . without corroborating the
hearsay, second hand information given to him” and without giving Mr. Cayo “an
opportunity to tell his version of events” even though he left several messages for Trooper
Guiliano seeking to “disabuse[] him of Ms. Semexant-Coffy’s false allegations.” (Id.
¶¶ 18–20.)
Mr. Cayo alleges that Trooper Guiliano “failed to conduct any semblance of an
investigation” and “did not have personal knowledge nor did he have trustworthy
information of facts and circumstances that were sufficient to warrant a person of
reasonable caution to believe that the Plaintiff had committed the crimes,” because he did
not interview Mr. Cayo or Chantal Coffy or verify whether she sent an email to her
children’s school expressing a safety concern and a “reasonable police officer would not

3

have relied on ‘he said she said’” accusations in seeking an arrest warrant.4 (Id. ¶¶ 22–24.)
Further, Plaintiff contends that Trooper Guiliano “wrote his report in such a way that he
led the prosecutor and the judge to believe that he actually had first-hand knowledge of
the facts when he did not.” (Id. ¶ 25.)
As a result of Trooper Guiliano’s investigation, Mr. Cayo was arrested on
November 21, 2010 and charged with stalking, harassment, threatening, and creating a
public disturbance. (Id. ¶ 29.) At Plaintiff’s criminal trial, Ms. Semexant-Coffy “recanted
the entire contents of the statement she’d given to the police which led to the Plaintiff’s
arrest, and testified that some of the statements attributed to her were made up by
Trooper [Guiliano].” (Id. ¶ 42.) The court granted Mr. Cayo a directed verdict on all
counts except for creating a public disturbance, which the jury later acquitted him of. (Id.
¶¶ 46–47.)
As a result of the criminal charges against him, Plaintiff, who had recently
graduated from law school and passed the bar examination, was not able to gain

4

Mr. Cayo attaches to the complaint a “Report of Investigation” into Ms.
Semexant-Coffy’s allegedly false statements at trial. It is not clear what agency conducted
this investigation, but citing the transcripts of Mr. Cayo’s criminal trial, it states that
Chantal Coffy testified that she never had a conversation with her sister-in-law about Mr.
Cayo and Ms. Semexant-Coffy admitted during her cross examination that no such
conversation had occurred and claimed that the police were mistaken in writing out her
statement. (Report of Investigation, Ex. C to 2d Am. Compl. at 3.) Mr. Cayo also
submits an affidavit from Chantal Coffy denying that Mr. Cayo had made any threats or
that she told anyone that he had done so. (See Ex. D to 2d Am. Compl.) The trial also
revealed that Ms. Semexant-Coffy did not send an email to her children’s school warning
of Mr. Cayo as she had claimed to the police. (Report of Investigation at 3.)
4

admission to the bar until March 23, 2012, after his acquittal, whereas without the
pending charges he would have been admitted fifteen months earlier.5 (Id. ¶¶ 51–53.)
II.

Discussion6
A.

Statute of Limitations

Both Defendants contend that all counts except for Counts One and Three for
malicious prosecution should be dismissed as barred by the statute of limitations.
Plaintiff initiated this action on January 10, 2014, over three years after his arrest in
November 2010. Plaintiff does not contest dismissal of these counts as to Trooper
Guiliano. (Pl.’s Opp’n to Guiliano [Doc. # 52-1] at 8.) As to Officer Sefcik, Plaintiff states
only that “[t]o the extent [he] made a claim of False Arrest under [§] 1983, it is
5

Plaintiff asserts claims for malicious prosecution against Trooper Guiliano
(Count One); “Violation of 42 U.S.C. [§] 1983” against Trooper Guiliano for violating his
“right not to be arrested or prosecuted without probable cause” (Count Two); Malicious
Prosecution against Officer Sefcik (Count Three); “Violation of 42 U.S.C. [§] 1983”
against Officer Sefcik for violating his Fourth Amendment rights by unlawfully entering
his home without a search warrant (Count Four); intentional and negligent infliction of
emotional distress against Officer Sefcik (Counts Five and Six); negligent infliction of
emotional distress against Trooper Guiliano (Count Seven); defamation against Trooper
Guiliano (Count Eight) and Officer Sefcik (Count Nine); “false light” as to Trooper
Guiliano (Count Ten) and Officer Sefcik (Count Eleven); and abuse of process as to
Trooper Guiliano (Count Twelve) and Officer Sefcik (Count Thirteen).
6

To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Detailed allegations are not required but a claim will be found facially plausible
only if “the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. However, “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (alterations in original).
5

withdrawn” (Pl.’s Opp’n to Sefcik [Doc. # 50-1] at 7), however, he only addresses his
claim for malicious prosecution in Count Three in his opposition to Officer Sefcik’s
Motion to Dismiss. Thus to the extent that Plaintiff’s additional claims against Officer
Sefcik have not been withdrawn, they are deemed abandoned and dismissed. See Hanig v.
Yorktown Cent. Sch. Dist., 384 F. Supp. 2d 710, 723 (S.D.N.Y. 2005) (“[B]ecause plaintiff
did not address defendant’s motion to dismiss with regard to this claim, it is deemed
abandoned and is hereby dismissed.”).
Furthermore, these claims are barred by the applicable limitations periods.
“Where the dates in a complaint show that an action is barred by a statute of limitations, a
defendant may raise the affirmative defense in a pre-answer motion to dismiss.” Ghartey
v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). All of the claims against
Officer Sefcik except for Count Three are time barred, because they are subject to either a
two- or three-year limitations period, but were not filed until over three years after Mr.
Cayo’s arrest. See Pinkston v. Connecticut, No. 3:09cv633 (JCH), 2009 WL 2852907, at *2
(D. Conn. Sept. 2, 2009) (“The general three-year personal-injury statute of limitations
period set forth in Connecticut General Statutes § 52–577 has been uniformly found to be
the appropriate one for federal civil rights actions.”); Conn. Gen. Stat. § 52-597 (“No
action for libel or slander shall be brought but within two years from the date of the act
complained of.”); Jensen v. Times Mirror Co., 634 F. Supp. 304, 315 (D. Conn. 1986)
(“The false light claim thus is covered by § 52–577, the all-embracing tort statute of
limitations” of three years.); Rivera v. Double A Transp., Inc., 248 Conn. 21, 31 (1999)
(two years for negligent infliction of emotional distress); Watts v. Chittenden, 301 Conn.
575, 596 (2011) (“[I]f no conduct has occurred within the three year limitations period set
6

forth in § 52–577, the plaintiff will be barred from recovering for . . . intentional infliction
of emotional distress.”); Timbers v. Updike, Kelly & Spellacy, P.C., 83 Conn. App. 442, 446
(2004) (three years for abuse of process).7
B.

Malicious Prosecution

Defendants move to dismissing the remaining malicious prosecution claims
against them for failure to state a claim and qualified immunity as to Defendant Guiliano.
The Connecticut Supreme Court has stated the elements of a malicious prosecution claim
as follows:
An action for malicious prosecution against a private person requires a
plaintiff to prove that: (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. 397, 404 (2008) (quoting McHale v. W.B.S. Corp., 187 Conn.
444, 447 (1982)).8

7

Plaintiff’s claims for malicious prosecution are not barred by the limitations
period, because “for claims based in malicious prosecution, this period starts to run only
when the underlying criminal action is conclusively terminated,” not upon arrest.
Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995).
8

Although Plaintiff does not specify whether his malicious prosecution claim is
brought under state law or § 1983, the standards are the same for both claims. See Fulton
v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (“[I]n order to prevail on a § 1983 claim
against a state actor for malicious prosecution, a plaintiff must show a violation of his
rights under the Fourth Amendment and establish the elements of a malicious
prosecution claim under state law.” (internal citations omitted)).
7

1.

Officer Sefcik

Defendant Sefcik contends that the complaint does not allege that he “initiated” or
“procured” the institution of criminal charges; only that he attempted to obtain an arrest
warrant and was rejected by the prosecutor. (Sefcik’s Mem. Supp. [Doc. # 41-1] at 11.)
Plaintiff does not allege that Officer Sefcik was involved the arrest after his request for an
arrest warrant was denied and acknowledges that Trooper Guiliano “took a new
statement” from Ms. Semexant-Coffy and submitted a separate arrest warrant
application, which was accompanied by her written statement. (2d Am. Compl. ¶¶ 17–
18.) Plaintiff only conclusorily alleges that “Officer [Sefcik] initiated and procured the
institution of criminal proceedings against” him (id. Count Three ¶ 63), and that Officer
Sefcik “acted with malice, primarily for a purpose other than that of brin[g]ing the
Plaintiff to justice when he decided not to investigate before applying for a warrant” and
told Plaintiff he would obtain a warrant for his arrest (id. Count Three ¶ 68).
However, Officer Sefcik was ultimately unable to obtain such a warrant and
referred the investigation to Trooper Guiliano.

As Plaintiff acknowledges, merely

reporting information to an officer who ultimately makes an arrest does not constitute
“initiation” of an arrest. Plaintiff maintains, however, that because “Officer Sefcik is law
enforcement” and “is not a regular witness[,] he clearly played an active role in the arrest
of the Plaintiff” and his arrest would not have occurred without Officer Sefcik’s actions.
(Pl.’s Opp’n to Sefcik at 7–8.)
Although a “private person can be said to have initiated a criminal proceeding if
he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure
of any kind to bear upon the public officer’s decision to commence the prosecution,” he
8

“has not initiated a criminal proceeding if he has undertaken no more than to provide
potentially incriminating information to a public officer. In such a case, if the defendant
has made a full and truthful disclosure and has left the decision to prosecute entirely in the
hands of the public officer, he cannot be held liable for malicious prosecution.” Bhatia,
287 Conn. at 407 (internal quotation marks omitted) (emphasis in original). Here,
Plaintiff has alleged only in conclusory terms that Officer Sefcik “initiated” his arrest, but
has not plausibly alleged that Officer Sefcik insisted that Plaintiff be prosecuted or
provided untruthful information to Trooper Guiliano when he took over the
investigation.9 Accordingly, Officer Sefcik’s Motion to Dismiss is granted.
2.

Trooper Guiliano

Defendant Guiliano does not dispute that Plaintiff has satisfied the first two
elements of a malicious prosecution claim, but contends that Plaintiff has not plausibly
alleged a claim because there was probable cause for his arrest. Alternatively, Trooper
Guiliano contends that he is entitled to qualified immunity, because he acted on the basis
of an arrest warrant issued by a neutral magistrate. Because the Court concludes that
Defendant Guiliano is entitled to qualified immunity, it will not address his first
argument.
“A defendant is entitled to qualified immunity on a motion to dismiss if the
allegations of the complaint fail to ‘state a claim of violation of clearly established law.’”

9

Additionally, Plaintiff has pleaded no facts to plausibly allege that Officer Sefcik
acted with malice and/or improper purpose rather than on the basis of the alleged
victim’s complaint “when he decided not to investigate before applying for a warrant”
and told Plaintiff that he would obtain an arrest warrant. (2d Am. Comp. Count Three
¶ 68.)
9

Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998) (quoting Behrens v. Pelletier, 516 U.S.
299, 306 (1996)); see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[B]ecause the
entitlement is an immunity from suit rather than a mere defense to liability, we repeatedly
have stressed the importance of resolving immunity questions at the earliest possible
stage in litigation.” (internal citations, quotation marks, and alterations omitted)).
“The qualified or ‘good faith’ immunity enjoyed by police officers shields them
from personal liability for damages ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known,’ or insofar as it was objectively reasonable for them to believe that their acts did
not violate those rights.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal citations omitted).
“The right not to be arrested or prosecuted without probable cause has, of course, long
been a clearly established constitutional right,” but an “arresting officer is entitled to
qualified immunity from a suit for damages on a claim for arrest without probable cause
if either (a) it was objectively reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree on whether the probable
cause test was met.” Id.
“Normally, the issuance of a warrant by a neutral magistrate, which depends on a
finding of probable cause, creates a presumption that it was objectively reasonable for the
officers to believe that there was probable cause and a plaintiff who argues that a warrant
was issued on less than probable cause faces a heavy burden” and “must make a
‘substantial preliminary showing’ that the affiant knowingly and intentionally, or with
reckless disregard for the truth, made a false statement in his affidavit and that the
10

allegedly false statement was ‘necessary to the finding of probable cause.’” Id. (quoting
Franks v. Delaware, 438 U.S. 154 (1978)).

“A misrepresentation or omission is

intentional when ‘the claimed inaccuracies or omissions are the result of the affiant’s
deliberate falsehood or reckless disregard for the truth.’” United States v. Awadallah, 349
F.3d 42, 64 (2d Cir. 2003) (quoting United States v. Canfield, 212 F.3d 713, 717–18 (2d
Cir. 2000)).
Plaintiff contends that Trooper Guiliano “lied” in his Arrest Warrant Application
when he stated that he spoke with Chantal Coffy about the threat Mr. Cayo allegedly
made about Ms. Semexant-Coffy (2d Am. Compl. Count One ¶ 65), however, the
application and attached statements make clear that in the relevant paragraph Trooper
Guiliano is simply recounting Ms. Semexant-Coffy’s account that “she said” that “she
received a phone call from Chantal Coffy,” who “stated that” Mr. Cayo had allegedly
made the threatening comments.10 (Arrest Warrant Application at 2–3, 10.)
Additionally, Mr. Cayo contends that Trooper Guiliano lied in the Arrest Warrant
Application by claiming that when he called Plaintiff, a man answered the phone, denied
being Plaintiff and identified himself as Plaintiff’s uncle. Mr. Cayo contends that Trooper
Guiliano falsely implied that Plaintiff himself had answered the phone and “pretended to
be his uncle” and also lied when he stated that Plaintiff never returned Trooper Guiliano’s

10

The Court can consider the contents of the Arrest Warrant Application and its
attachments because they are discussed extensively in the complaint. See Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“[T]he court may . . . consider [a
document on a motion to dismiss] where the complaint relies heavily upon its terms and
effect, which renders the document integral to the complaint.”) (internal quotation marks
omitted).
11

call. (2d Am. Compl. Count One ¶¶ 67–68.) Even assuming arguendo that these
allegations could be proven, they are not statements “necessary to the finding of probable
cause” on any of the offenses charged against Mr. Cayo and therefore they do not impact
the qualified immunity analysis. Golino, 950 F.2d at 870.
In his opposition to Trooper Guiliano’s motion to dismiss, Plaintiff argues only
that Trooper Guiliano was reckless for adopting Ms. Semexant-Coffy’s account and that
his criminal trial subsequently demonstrated that she was lying. However, to survive a
motion to dismiss on the basis of qualified immunity, Plaintiff must plausibly allege that
Trooper Guiliano himself with “reckless disregard for the truth, made a false statement in
his affidavit.” Id. Plaintiff does not identify any false statement by Trooper Guiliano and
the Arrest Warrant Application makes plain that he submitted Ms. Semexant-Coffy’s own
statement and those of two corroborating witnesses. Although the allegations may have
been discredited later, a neutral judge determined that it provided probable cause for Mr.
Cayo’s arrest at that time.11 As Plaintiff has not plausibly alleged that Defendant Guiliano

11

Contrary to Plaintiff’s argument, an alleged victim’s statement can be sufficient
on its own to furnish probable cause. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119
(2d Cir. 1995) (“An arresting officer advised of a crime by a person who claims to be the
victim, and who has signed a complaint or information charging someone with the crime,
has probable cause to effect an arrest absent circumstances that raise doubts as to the
victim’s veracity.”). Even “where a police officer was presented with different stories from
an alleged victim and the arrestee . . . he is not required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest” and he “does not have
to prove plaintiff’s version wrong before arresting him” even if “investigation might have
cast doubt upon the basis for the arrest.” Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.
2001) (internal quotation marks omitted). The justification is that an officer’s “function
is to apprehend those suspected of wrongdoing, and not to finally determine guilt
through a weighing of the evidence” and once “officers possess facts sufficient to establish
probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury.”
12

“materially misled a magistrate,” Golino, 950 F.2d at 87, Defendant Guiliano’s Motion to
Dismiss is granted on the basis of qualified immunity.
III.

Conclusion
For the reasons set forth above, Defendants’ motions [Doc. # 41, 44] to dismiss are

GRANTED. The Clerk is directed to close this case.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 11th day of July, 2014.

Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006) (quoting Krause v. Bennett, 887 F.2d
362, 372 (2d Cir. 1989)).
13