Warner v. Freeman et al

Filing 61

ORDER granting 52 Motion for Summary Judgment. See attached. Signed by Judge Donna F. Martinez on 9/22/17. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES M. WARNER,
Plaintiff,
v.
WILLIAM T. FREEMAN, et al.,
Defendants.

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CASE NO.

3:14cv1192(DFM)

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, James Warner, commenced this action pursuant to
42 U.S.C. § 1983 against various police officers alleging false
arrest and malicious prosecution.

At this juncture, the sole

remaining claims are federal and state law malicious prosecution
claims

against

("Freeman").1

Connecticut

State

Trooper

William

Freeman

Pending before the court is defendant Freeman's

supplemental motion for summary judgment.
heard oral argument on September 14, 2017.

(Doc. #52.)

The court

For the reasons that

follow, the court grants the motion with respect to the § 1983
malicious prosecution claim and declines to exercise supplemental
jurisdiction over the state law claim.
I.

Background
The court assumes the parties' familiarity with the underlying

facts and allegations and summarizes them only briefly here.

1

The

Three defendants remained prior to this motion:
Freeman,
Dowd and Larue. The plaintiff agrees that summary judgment should
enter as to defendants Dowd and Larue. (Doc. #55 at 1.) This
leaves Freeman as the remaining defendant.

following facts are undisputed.
The plaintiff is a landscaper.

A customer of his, John Fox

("Fox") lived at 11 Tattoon Road in Woodstock, Connecticut.

Fox

asked the plaintiff to clean up the property across the street at
16 Tattoon Road. At that address, there was a dilapidated house on
an overgrown lot with lots of debris in the yard.

The plaintiff

knew that Fox did not own the 16 Tattoon Road property.
On December 9, 2013, the plaintiff parked his pickup truck in
the driveway of 16 Tattoon Road.

He and two other men took items

from the property including an aluminum rowboat, a cement mixer, a
heater, and aluminum gutters.
of the plaintiff's truck.
items.

They loaded the items into the bed

The plaintiff did not know who owned the

Meanwhile, another neighbor called the police.

The caller

reported that there were men on the property at 16 Tattoon Road,
that the house was vacant, and that the men were taking things from
the property and loading them into a truck.
When the police arrived, the plaintiff provided identification
and said that he was cleaning up the property.

The police asked

the men who had given them permission to be there.
respond.

The men did not

The plaintiff said that he had knocked at the door but

nobody answered. He explained that he then began to collect things
to bring to the dump. An officer knocked on the front door of the
residence but there was no response.
Defendant

Freeman

charged

the

2

plaintiff

with

larceny

in

violation of Conn. Gen. Stat. § 53a-119, criminal trespass in the
third degree in violation of Conn. Gen. Stat. § 53a-109 and
criminal mischief in the third degree in violation of Conn. Gen.
Stat. § 53a-117.

The plaintiff was transported to the Danielson

State Police Barracks, processed, and released the same day on a
$6000 surety bond.

On April 25, 2014, the plaintiff appeared at

court and the charges were dismissed.
The

plaintiff

brought

suit

alleging

that

the

defendants

deprived him of his right to be free from false arrest and
malicious prosecution.
part

and

denied

in

In September 2016, the court granted in

part

the

defendants'

motion

for

summary

judgment. (Doc. #49.) The court held that arguable probable cause
existed and that accordingly, the defendants were entitled to
qualified immunity as to the false arrest and malicious prosecution
claims with the exception of the criminal trespass charge. That
charge2 requires that the property be posted or fenced.

It is

undisputed that the property at issue was neither posted nor fenced
and as a result, the defendants conceded that probable cause did
not exist.

2

(Doc. #45 at 20.)

The court permitted the defendants

Conn. Gen. Stat. § 53a-109 provides:

(a) A person is guilty of criminal trespass in the third
degree when, knowing that such person is not licensed or
privileged to do so: (1) Such person enters or remains in
premises which are posted in a manner prescribed by law
or reasonably likely to come to the attention of
intruders or are fenced or otherwise enclosed in a manner
designed to exclude intruders . . . .
3

to file a supplemental summary judgment motion on the malicious
prosecution claim as to the criminal trespass charge.

This motion

followed.
II.

Standard for Summary Judgment
Summary judgment may be granted only if "the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
56(a).

Fed. R. Civ. P.

The "burden on the moving party may be discharged by

'showing' — that is pointing out to the district court — that there
is an absence of evidence to support the nonmoving party's case."
PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002);
see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 18 (2d Cir. 1995) ("In moving for summary judgment against a
party who will bear the ultimate burden of proof at trial, the
movant's burden will be satisfied if he can point to an absence of
evidence to support an essential element of the nonmoving party's
claim.").

A genuine dispute of material fact "exists for summary

judgment purposes where the evidence, viewed in the light most
favorable to the nonmoving party, is such that a reasonable jury
could decide in that party's favor."

Zann Kwan v. Andalex Gr.,

LLC, 737 F.3d 834, 843 (2d Cir. 2013).

The evidence adduced at the

summary judgment stage must be viewed in the light most favorable
to the non-moving party and with all ambiguities and reasonable
inferences drawn against the moving party.

4

See, e.g., Caronia v.

Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013).
III. Discussion
The defendant moves for summary judgment as to the plaintiff's
§ 1983 claim of malicious prosecution on the charge of criminal
trespass in the third degree.
"In the absence of federal common law, the merits of a claim
for malicious prosecution under Section 1983 are governed by state
law."

Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017).

Under Connecticut law, a plaintiff asserting malicious
prosecution must 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. . . . .
Id. at 462 n.1 (internal quotation marks and citations omitted).
In addition, in order to allege a cause of action for malicious
prosecution

under

§

1983,

the

plaintiff

must

be

"able

to

demonstrate a deprivation of liberty amounting to a seizure under
the Fourth Amendment. Singer v. Fulton Cty. Sheriff, 63 F.3d 110,
116 (2d Cir. 1995)." Id.

"The tort of malicious prosecution

relates to deprivations of liberty pursuant to legal process meaning either post-arraignment or as a result of arrest pursuant
to warrant. Deprivations of liberty from the moment of warrantless
arrest until arraignment are not pursuant to legal process, and
therefore implicate the separate tort of false arrest." Coleman v.
City of New York, 688 F. App'x 56, 58 n.1 (2d Cir. 2017).
5

See,

e.g., Rutigliano v. City of New York, 326 F. App'x 5, 7 (2d Cir.
2009)("To sustain a § 1983 malicious prosecution claim, the state
law elements must be met, and there must also be a showing of a
'sufficient post-arraignment liberty restraint to implicate the
plaintiff's Fourth Amendment rights.'"); Rohman v. New York City
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) ("in addition to
the

elements

of

malicious

prosecution

under

state

law,"

the

plaintiff must assert that there was "a sufficient post-arraignment
liberty restraint to implicate the plaintiff's Fourth Amendment
rights"); Singer, 63 F.3d at 116 ("to successfully pursue a § 1983
claim of malicious prosecution in violation of his Fourth Amendment
rights, [plaintiff] must show some post-arraignment deprivation of
liberty that rises to the level of a constitutional violation.")
The defendant argues that the plaintiff has not shown that he
suffered a constitutionally cognizable deprivation of a liberty
interest stemming from the charge of criminal trespass.3

In

support, the defendant points out that the plaintiff was arrested
on other charges for which probable cause existed, was released on
bond the same day and subsequently appeared in court on all

3

For purposes of this motion, the defendant does not dispute
the following elements of a malicious prosecution claim: favorable
termination (second element), probable cause (third element) and
malice (fourth element).
(Doc. #53 at 9.)
The defendant does
dispute the first element, that is, that the defendant initiated or
procured the institution of criminal proceedings against the
plaintiff. Because the court concludes that the plaintiff has not
demonstrated a deprivation of liberty under the Fourth Amendment,
the court does not address the first element.
6

charges.

On these facts, the defendant maintains, the plaintiff

has not shown, as he must, that he suffered a post-arraignment
constitutionally cognizable deprivation of liberty attributable to
the criminal trespass charge.
The case of Coleman v. City of New York, 688 F. App'x 56, 58
(2d Cir. 2017) is instructive.

In that case, the plaintiff was

arrested on multiple charges, all of which were subsequently
dismissed.

He filed suit alleging malicious prosecution.

The

district court determined that probable cause existed as to all
charges with the exception of assault charges.

As to those

charges, the district court granted summary judgment on the grounds
that the plaintiff could not show an independent deprivation of
liberty resulting from the prosecution of the assault charges.
appeal, the Second Circuit affirmed, stating:
Because a malicious prosecution claim brought under
§ 1983 is grounded in the Fourth Amendment, . . . the
plaintiff must also establish another element in addition
to the state tort requirements: a post-arraignment[]
deprivation of liberty that rises to the level of a
constitutional seizure. . . . [Plaintiff] fails to show
such a seizure . . . . Since [plaintiff] was released
without
bail
after
his
arraignment,
the
only
post-arraignment deprivation of liberty he suffered was
the ongoing requirement of appearing in court (more than
a dozen times over two years). That might be sufficient,
see Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215-16
(2d Cir. 2000), except that it is not solely attributable
to the assault charges, which are the only remaining
charges for which [plaintiff] could have a malicious
prosecution claim. Even if the assault charges had never
been, [plaintiff] still would have had the obligation to
appear on account of the other criminal charges (which
cannot support a malicious prosecution claim, because
they were indisputably supported by probable cause) . .
7

On

. . It is [plaintiff's] burden to show a post-arraignment
deprivation of liberty that resulted from the prosecution
that he alleges was unsupported by probable cause; he has
not sustained it.
Coleman, 688 F. App'x at 57–58.
Citing Coleman, the district court for the Southern District
of New York reached the same conclusion in Ramos v. New York, No.
15 CIV. 6085 (ER), 2017 WL 3575697, at *3 (S.D.N.Y. Aug. 17, 2017).
In that case, the plaintiffs were charged with criminal possession
of a controlled substance with intent to sell, criminal sale of a
controlled substance in the third degree, and criminal sale of a
controlled substance in the seventh degree.

As to the malicious

prosecution claim, the district court determined that probable
cause existed as to the charge of possession of a controlled
substance with intent to sell.

The court further concluded that

the plaintiffs could not show an independent post-deprivation
liberty with respect to the prosecution on the criminal sale
charges.

In so finding, the court observed that the plaintiffs

were obligated to appear in court for the possession charges
regardless of the appropriateness of the criminal sale charges. As
a

result,

the

court

granted

summary

judgment.

See

also

Flynn-Rodriguez v. Cheng, No. 14 Civ. 2287 (JWB), 2017 WL 3278889,
at

*2

(E.D.N.Y.

Aug.

1,

2017)

(relying

on

Coleman,

granting

judgment as to malicious prosecution claim on charge of resisting
arrest where "the deprivation was also caused by other charges that
were supported by probable cause.")
8

The plaintiff argues that summary judgment should not enter.
According to the plaintiff, the defendant bears the burden of
presenting evidence that the plaintiff "would have suffered the
same loss of liberty had [defendant] not charged him with the
criminal trespass third degree offense" and the defendant "has not
attempted to carry his burden."

(Doc. #55 at 5.)

persuaded.

plaintiff's

Contrary

to

the

The court is not

argument,

"[i]t

is

[plaintiff's] burden to show a post-arraignment deprivation of
liberty that resulted from the prosecution that he alleges was
unsupported by probable cause . . . ."

Coleman v. City of New

York, 688 F. App'x 56, 57–58 (2d Cir. 2017).

The defendant has

pointed to an absence of evidence to support an essential element
of the plaintiff's claim.
of the moving party.

This is a proper discharge of the burden

See Giannullo v. City of New York, 322 F.3d

139, 141 n.2 (2d Cir. 2003)("[A] defendant may move for summary
judgment on the ground that the plaintiff has failed to adduce any
evidence of an element of plaintiff's claim, and if the plaintiff
fails

in

response

to

contest

this

assertion

or

adduce

such

evidence, defendant, without more, will prevail"); PepsiCo, Inc. v.
Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (The "burden on the
moving party may be discharged by 'showing' — that is pointing out
to the district court — that there is an absence of evidence to
support the nonmoving party's case.").

The defendant has pointed

out that there is an absence of evidence to support an essential

9

element of the plaintiff's claim; it then falls "to [the plaintiff]
to come forward with specific evidence demonstrating the existence
of a genuine dispute of material fact as to that element . . . ."
El-Nahal v. Yassky, 835 F.3d 248, 256 (2d Cir. 2016), cert. denied,
137

S.

Ct.

2187

(2017).

The

plaintiff

has

not

done

so.

Accordingly, the defendant's motion for summary judgment on the
§ 1983 malicious prosecution claim is granted.
Pendant State Law Claim
The plaintiff asserts in his opposition to this motion that
the

complaint

alleges

a

malicious

prosecution

Connecticut state law4 as well as under § 1983.

claim

under

He argues that

summary judgment should be denied as to the state law claim because
"loss of liberty is not even an element of malicious prosecution
under state law."

(Doc. #55 at 6.)

Having determined that the plaintiff's federal claim does not
survive, the court declines to exercise jurisdiction over any state
law claims. See 28 U.S.C. § 1367(c)(3); United Mine Workers of Am.

4

This is not self-evident. Admittedly, the complaint refers
to the "rights secure to the plaintiff by the Constitution and the
laws of the United States and the State of Connecticut" and asserts
jurisdiction pursuant to "Sections 1331, 1343(3) of Title 28 and
Sections 1983 and 1988 of Title 42 of the United States Code."
(Compl. ¶¶1-2.) However, the complaint specifically alleges that
"the defendants deprived the plaintiff of his right to be free from
false arrest and malicious prosecution, which rights are secure to
him by the Fourth Amendment to the United States Constitution as
enforce through Sections 1983 and 1988 of Title 42 of the United
States Code."
(Compl. ¶12.)
There is no similar allegation
invoking state law.
10

v. Gibbs, 383 U.S. 715, 726 (1966).

"[I]n the usual case in which

all federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine —
judicial economy, convenience, fairness, and comity — will point
toward

declining

to

exercise

jurisdiction

over

the

remaining

state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988);

see also Kolari v. N. Y. Presbyterian Hosp., 455

F.3d 118, 123 (2d Cir. 2006) (reversing a district court decision
to retain supplemental jurisdiction over state law claims after
dismissal of the federal claim, citing "the absence of a clearly
articulated federal interest"); Anderson v. Nat'l Grid, PLC, 93 F.
Supp. 3d 120, 147 (E.D.N.Y. 2015) ("In the interest of comity, the
Second Circuit instructs that absent exceptional circumstances,
where federal claims can be disposed of pursuant to Rule 12(b)(6)
or summary judgment grounds, courts should abstain from exercising
pendent jurisdiction.")(citing cases) (internal quotation marks
omitted)).
IV.

Conclusion
For these reasons, the defendant's motion for summary judgment

(doc. #52) is granted as to the § 1983 malicious prosecution claim.
The state law claim is dismissed without prejudice.
SO

ORDERED

at

Hartford,

Connecticut

this

22nd

day

September, 2017.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

11

of