DiPane-Saleem v. Gallagher et al

Filing 58

ORDER. For the reasons discussed herein, Dr. Shah's Motion to Dismiss (ECF No. 36) and the remaining defendants' Motion to Dismiss (ECF No. 40) are DENIED.Signed by Judge Michael P. Shea on 3/15/2016. (Hillier, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JODI DIPANE-SALEEM,
Plaintiff,
v.
ANDREW GALLAGHER,
JEFFERY BOOTH,
CITY OF STAMFORD, &
DR. DARSHAN T. SHAH,
Defendant.

No. 3:15-cv-596 (MPS)

RULING AND ORDER
Jodi DiPane-Saleem has sued police officers Andrew Gallagher and Jeffrey Booth, the
City of Stamford, and Dr. Darshan T. Shah for alleged violations of her civil rights and for
common law torts arising from her arrest on forgery and related charges that were later
dismissed.
The plaintiff brings seven counts. In Count I, she brings a claim under 42 U.S.C. §§ 1983
and 1988 against Gallagher and Booth for false arrest and malicious prosecution in violation of
her Fourth Amendment rights. In Count II, she claims that Gallagher and Booth violated Article
I, Section 7, of the Connecticut Constitution, which protects rights similar to those protected by
the Fourth Amendment. In Count III, she alleges that Gallagher and Booth committed the
common law tort of malicious prosecution. In Count IV, she alleges that Gallagher and Booth
committed abuse of process by continuing to prosecute the plaintiff to coerce her into providing
a general release of her civil claims against the officers. In Count V, she alleges intentional
infliction of emotional distress against Gallagher and Booth. In Count VI, she alleges that
Gallagher, Booth, and the City of Stamford are liable for negligent infliction of emotional
distress. Finally, in Count VII, she brings a claim against Dr. Shah for intentional infliction of
emotional distress.

Dr. Shah has moved to dismiss Count VII for failure to state a claim and for lack of
jurisdiction. (ECF. No. 36.) Gallagher and Booth have moved to dismiss Counts IV, V, and VI
for failing to state a claim. (ECF No. 40.) The City of Stamford has moved to dismiss Count VI
for failing to state a claim. (Id.) For the reasons discussed below, I deny the motions.
I.

Factual Allegations
The plaintiff makes the following non-conclusory allegations in her Second Amended

Complaint (ECF No. 34). Defendants Andrew Gallagher and Jeffrey Booth were police officers
for the defendant City of Stamford. (Id. at ¶¶ 2–3.) Dr. Darshan T. Shah is a family friend and
business associate of the plaintiff‘s father-in-law. (Id. at ¶¶ 6, 8.)
The plaintiff lived with her husband at 43 Westover Lane, Stamford, Connecticut, where
they maintained a residence and stored personal property. (Id. at ¶¶ 6–7.) The home initially was
owned by the plaintiff‘s father-in-law who transferred the property at some time to a limited
liability company owned by Dr. Shah. (Id. at ¶ 8.) In October 2009, the plaintiff, her husband,
and Dr. Shah agreed that the plaintiff and her husband would make payments on the property‘s
delinquent property taxes in exchange for the right to reside in the home. (Id. at ¶ 9.) Dr. Shah‘s
plan was to allow the plaintiff and her husband to live in the home until he renovated it. (Id. at ¶
10.) The couple lived in the home with Dr. Shah‘s knowledge and consent throughout the period
covered in the complaint. (Id. at ¶ 11.) For several years prior to 2012, the couple maintained
utility accounts at the home, registered an automobile to the address, and paid property taxes—as
shown in public records—for the car to the City of Stamford. (Id. at ¶¶ 12–13.)
At the end of September 2012, the plaintiff learned that Dr. Shah was going to begin
renovations in October. (Id. at ¶ 14.) She was told that the initial renovations were not to include
the ―bedrooms, studio, or garage and that the Plaintiff and her husband would have to remove all

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their possessions by the following Thanksgiving at the latest.‖ (Id.) Accordingly, the plaintiff and
her husband began moving during the last week of September. (Id. at ¶ 15.) ―The Plaintiff and
her husband were assured that the contractors hired by Dr. Shah were only going to dismantle the
kitchen and that their possessions throughout the house and the garage would be secure until they
removed them.‖ (Id. at ¶ 16.) But on October 1, 2012, the plaintiff discovered that ―a significant
amount of their personal belongings were missing‖ from the home. (Id. at ¶ 17.)
Dr. Shah learned that his agents had removed the items and arranged to return them. (Id.
at ¶ 18–19.) A lawn mower and other property were ―found abandoned in front of the Stamford
Home, but other valuable personal property was not returned.‖ (Id. at ¶ 20.) The plaintiff and her
husband believed that the property had been stolen because Dr. Shah and his agents would not
return their belongings; so they filed a complaint with the Stamford Police Department, which
was assigned to Gallagher and Booth. (Id. at ¶¶ 21–22.)
Gallagher told the plaintiff that Dr. Shah claimed that the plaintiff had ―never resided at
the Stamford Home and if they now claimed the use of the Stamford Home they were doing so as
illegal ‗squatters.‘‖ (Id. at ¶ 23.) Dr. Shah made that false claim maliciously because he had
visited the plaintiff while she was living there. (Id. at ¶¶ 24–25.) Dr. Shah allegedly lied to the
police to conceal the theft of the plaintiff‘s property and to harm the plaintiff. (Id. at ¶ 26.)
The plaintiff told Gallagher that she could prove that Dr. Shah was lying. (Id. at ¶ 28.)
From October 2012 to February 2013, the plaintiff repeatedly asked Gallagher about the
investigation. (Id. at ¶ 29.) On March 4, 2013, Booth wrote to the plaintiff:
[A]n issue has come up with residency. I am asking for you or your husband to
provide proof of the residency at 43 Westover Lane during the time frame when
you said you lived there. This would preferably be in the form of utility bill.
(Id. at ¶ 30.)

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On March 7, 2013, the plaintiff sent Booth electronic copies of an electricity bill, a
telephone bill, an October 2012 email from Dr. Shah about transferring the utilities to Dr. Shah‘s
name, a September 2012 email about the plaintiff‘s use of the house‘s garage during renovations,
a letter from the City of Stamford‘s attorney confirming that the plaintiff had paid the property
taxes on the home, checks made to Dr. Shah‘s company for tax payments on the home, a car
registration listing the home‘s address, a tax bill for a car registered to the home, a color copy of
a City of Stamford paid receipt for a car registered to her husband‘s name at the Stamford home,
and a Geico Insurance identification card for her husband‘s car, which listed the address of the
Stamford home. (Id. at ¶ 31.) The plaintiff highlighted some of the information on these
documents before sending it to Booth. (Id.) The plaintiff asked Gallagher and Booth to contact
her or the City‘s attorney for more information to confirm her residency. (Id. at ¶ 32.) Gallagher
and Booth did not contact the plaintiff or the City‘s attorney. (Id. at ¶¶ 33–34.)
On March 26, 2013, the plaintiff emailed Gallagher and Booth to ask whether the
investigation was complete. (Id. at ¶ 35.) That same day, Gallagher wrote to the plaintiff to say
that several of the documents sent on March 7, 2013, had been altered or photoshopped, and that
he intended to ask the State‘s Attorney‘s Office to bring criminal charges against her. (Id. at ¶
36.)
On April 18, 2013, Gallagher and Booth applied for an arrest warrant. (Id. at ¶ 37.) The
application falsely alleged that the plaintiff had given them ―obviously forged documents,
including an official State of CT Motor Vehicle Registration Certificate, as well as forged utility
bills.‖ (Id. at ¶¶ 38–39.) The application did not refer to other records the plaintiff provided that
would have refuted the forgery claim. (Id. at ¶ 40.) Gallagher and Booth accused the plaintiff of
forgery because she had ―highlighted her husband‘s name and address on the Motor Vehicle

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Registration Certificate, the CL&P bill and AT&T bill.‖ (Id. at ¶ 41.) They did this without even
asking to inspect the original documents or checking the City of Stamford‘s records. (Id. at ¶¶
45–46.)
The court signed the warrant because Booth and Gallagher provided false information
and omitted facts showing that the documents were not forged. (Id. at ¶ 43.) The police arrested
the plaintiff around April 26, 2013. (Id. at ¶ 44.) During pretrial proceedings in the plaintiff‘s
criminal case, she gave the State‘s Attorney‘s Office the original documents that ―conclusively
established‖ that she had not committed forgery. (Id. at ¶ 48.) ―Gallagher and Booth refused to
drop the charges unless the Plaintiff provided them with a general release to protect them from
being held responsible for illegally arresting the Plaintiff.‖ (Id. at ¶ 49.) The plaintiff was
prosecuted for more than a year even though the police knew that probable cause did not exist to
arrest the plaintiff, which caused ―extreme distress.‖ (Id. at ¶ 50.) Finally, the charges against the
plaintiff were dismissed around June 30, 2014. (Id. at ¶ 51.) The plaintiff brought this suit on
April 23, 2016.
II.

Discussion
In considering a motion to dismiss, I take DiPane-Saleem‘s ―factual allegations to be true

and [draw] all reasonable inferences in‖ her favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
2009). ―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) (citation and internal quotation marks omitted). ―A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.‖ Id. The plausibility standard ―does not
impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a

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reasonable expectation that discovery will reveal evidence‖ supporting the claim for relief. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A court need not accept legal conclusions as
true and ―[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.‖ Iqbal, 556 U.S. at 678.
III.

Dr. Shah’s Motion to Dismiss
Dr. Shah argues that there is no subject matter jurisdiction over the single claim against

him and that the plaintiff has failed to state a claim.
A.

Jurisdiction

The plaintiff asserts that jurisdiction exists over her intentional infliction of emotional
distress claim against Dr. Shah under 28 U.S.C. § 1367. (ECF No. 34 at 1.) Except as otherwise
provided, ―in any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.‖ 28 U.S.C. § 1367(a).
―For purposes of section 1367(a), claims ‗form part of the same case or controversy‘ if
they ‗derive from a common nucleus of operative fact.‘‖ Shahriar v. Smith & Wollensky
Restaurant Group, Inc., 659 F.3d 234, 245 (2d Cir. 2011) (quoting Briarpatch Ltd., v. Phoenix
Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004)). ―[I]n other words, they must be such that the
plaintiff ‗would ordinarily be expected to try them all in one judicial proceeding.‘‖ Montefiore
Medical Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011) (quoting United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)). Whether two claims share a common
nucleus of operative fact depends on whether the facts of both claims ―substantially overlap[]‖ or
―the federal claim necessarily brought the facts underlying the state claim before the court.‖

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Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006). The burden of
establishing jurisdiction rests on ―the party who seeks the exercise of jurisdiction in his favor.‖
McNutt v. General Motors Acceptance Corp of Ind., Inc., 298 U.S. 178, 189 (1936).
Here, the claims against Dr. Shah and claims against the remaining defendants are part of
the same case or controversy because ―the federal claim[s] necessarily brought the facts
underlying the state claim before the court‖ and the facts necessary to both claims ―substantially
overlap[].‖ Acthman, 464 F.3d at 335. For example, the federal claims necessarily involve the
content of Dr. Shah‘s report to the police, the relationship of Dr. Shah to the plaintiff, and the
events surrounding Dr. Shah‘s removal of the plaintiff‘s belongings from her home. Given the
substantially overlapping factual basis of the plaintiff‘s claims against Dr. Shah and her federal
claims against the remaining defendants, ―the plaintiff ‗would ordinarily be expected to try them
all in one judicial proceeding.‘‖ Montefiore Medical Ctr., 642 F.3d at 332 (quoting United Mine
Workers of Am., 383 U.S. at 725). Therefore, I have supplemental jurisdiction over the plaintiff‘s
claim for intentional infliction of emotional distress against Dr. Shah.
B.

Count VII: Intentional Infliction of Emotional Distress Against Dr. Shah

The plaintiff brings a claim for intentional infliction of emotional distress in Count VII
against Dr. Shah. The plaintiff must allege ―(1) that the actor intended to inflict emotional
distress or that he knew or should have known that emotional distress was the likely result of his
conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant‘s conduct was
the cause of the plaintiff‘s distress; and (4) that the emotional distress sustained by the plaintiff
was severe.‖ Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000). The defendants‘ conduct must
be ―beyond all possible bounds of decency, . . . atrocious, and utterly intolerable . . . .‖ Id. at
210–11. Merely insulting or rude actions are insufficient to plead a claim for intentional

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infliction of emotional distress. Id. at 211. A claim for intentional infliction of emotional distress
is generally ―one in which the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim, ‗Outrageous!‘‖ Id.
The plaintiff has plausibly alleged that Dr. Shah‘s conduct was extreme and outrageous.
The plaintiff alleges that Dr. Shah, who was essentially the plaintiff‘s landlord, told the plaintiff
that he would begin to renovate the house where she was living in October and that she would
have until late or mid-November to remove her possessions, but instead Dr. Shah‘s agents
removed the possessions by October 1. (Id. at ¶ 17–19.) When Dr. Shah would not return the
belongings, the plaintiff told the police that the items were stolen. (Id. at ¶ 23.) When the
complaint was investigated, Dr. Shah falsely told the police that the plaintiff never had lived in
the home because he was trying to harm the plaintiff and to hide the theft of the plaintiff‘s
property. (Id. at ¶¶ 23–26.)
His alleged behavior was not merely rude or insulting, other than perhaps his use of the
word ―squatter.‖ (Id. at ¶ 23.) A landlord who tells his tenants that they may store their
possessions at their former residence while it is under renovation, takes his tenants possessions,
refuses to return them, and then lies to police investigating a complaint of theft by stating that the
tenants never resided at their former residence is not ―merely insulting,‖ a ―display[ of] bad
manners,‖ or the cause of ―hurt feelings.‖ Appleton, 254 Conn. at 211. Rather, these are facts—
after drawing all reasonable inferences in the plaintiff‘s favor, Harris, 572, F.3d at 71—that
could lead an average member of the community to feel ―resentment against‖ Dr. Shah and ―to
exclaim, ‗Outrageous!‘‖ Id.
Dr. Shah‘s next argument is that the plaintiff has failed to adequately plead that his
conduct caused the plaintiff‘s emotional distress. Proximate cause is ―[a]n actual cause that is a

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substantial factor in the resulting harm . . . .‖ Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383
(1982) (discussing negligence). ―Proximate cause results from a sequence of events unbroken by
a superseding cause, so that its causal viability continued until the moment of injury or at least
until the advent of the immediate injurious force.‖ Id. ―The test for finding proximate cause ‗is
whether the harm which occurred was of the same general nature as the foreseeable risk created
by the defendant‘s‘‖ action. Id. at 384 (quoting Merhi v. Becker, 164 Conn. 516, 521 (1973)).
Here, the plaintiff has adequately pled that Dr. Shah‘s intentional misrepresentation to the
police was a substantial factor in at least some of the resulting harm, viz., a criminal
investigation. Severe emotional distress resulting from a criminal investigation—and perhaps
even a criminal prosecution prompted by a shoddy investigation—is a foreseeable risk created by
intentionally providing false information to the police with the purpose of misleading them. To
be sure, Dr. Shah told police that the plaintiff had never lived at his property, not that the
plaintiff forged documents. (ECF No. 34 at ¶ 23.) This, he argues, means that the risk of being
charged with forgery was not foreseeable. (ECF No. 37 at 14 (―[T]he Plaintiff was not arrested
for trespassing or some species of that crime—rather Plaintiff‘s arrest and prosecution was for
forgery and interference with a police investigation.‖).) It is irrelevant that the plaintiff was
investigated for forgery and interfering with a police investigation and not some other crime such
as criminal trespass (ECF No. 34 at ¶ 42), because the proximate cause inquiry asks whether the
harm ―was of the same general nature as the foreseeable risk,‖ not whether the harm was
precisely the same as the foreseeable risk, Coburn, 186 Conn. at 384 (emphasis added). It is
entirely foreseeable that a police officer investigating a tenant‘s report of theft by a landlord
might end up charging the tenant with a crime, for example making a false report or interfering

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with a police investigation, after the landlord falsely reported that the tenant was illegally
squatting and had never resided at the property where the theft allegedly occurred.
Dr. Shah relies on the Restatement (Second) of Torts § 46, Deskovic v. City of Peeskill,
673 F. Supp. 2d 154 (S.D.N.Y. 2009), Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999),
and Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007). None of those cases address
causation under Connecticut tort law; they address general principles of causation under 42
U.S.C. § 1983 and, in any event, two of the cases do not address the appropriate standard on a
motion to dismiss. Wray, 490 F.3d at 193–94 (motion for summary judgment); Deskovic, 673 F.
Supp. 2d at 161 (motion for severance).
Dr. Shah argues for the first time in his reply brief that that his statements to the police
cannot give rise to liability because they are ―absolutely privileged,‖ and that the plaintiff has
inadequately alleged both that she suffered severe emotional distress and that Dr. Shah intended
to inflict severe emotional distress upon her. (ECF No. 50 at 5–6, 10–13.) I do not address those
arguments because the defendant raised them for the first time in his reply brief. Cecchini v.
Schenck, No. 3:14-CV-1704 (MPS), 2016 WL 777901, at *10 (D. Conn. Feb. 29, 2016) (citing
Ringenback v. Crabtree Cadillac-Oldsmobile, Inc., 99 F. Supp. 2d 199, 204 (D. Conn. 2000)).
For the reasons discussed above, the plaintiff has adequately stated a claim for intentional
infliction of emotional distress against Dr. Shah.
IV.

Motion to Dismiss by Police Officers and the City of Stamford
A.

Count IV: Abuse of Process Against Gallagher and Booth

The elements for the tort of abuse of process are (1) the use of a legal process after a
proceeding has begun (2) primarily for an improper purpose. Larobina v. McDonald, 274 Conn.
394, 403, 406 (2005) (―An action for abuse of process lies against any person using a legal

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process against another in an improper manner or to accomplish a purpose for which it was not
designed.‖) (quoting Varga v. Pareles, 137 Conn. 663, 667 (1951). See also Passaro-Henry v.
Allstate Ins. Co., No. 3:10-cv-450 (JCH), 2010 WL 5174405 at *3 (D. Conn. Dec. 15, 2010)
(―Abuse of process requires conduct (1) occurring after the issuance of process and (2) intended
primarily to accomplish a purpose for which the process is not designed.‖). This tort ―evolved as
a ‗catch-all‘ category to cover improper uses of the judicial machinery that did not fit within the
earlier established, but narrowly circumscribed, action of malicious prosecution.‖ Larobina, 274
Conn. at 406 (internal quotation marks omitted).
Gallagher and Booth argue that the plaintiff has not stated a claim because:
She does not allege particular acts of misconduct during the proceedings
themselves, except to assert that the defendants, who were obviously not in charge
of the criminal prosecution, wanted her to provide a general release prior to the
charges being dropped, but she apparently refused to provide them with one and
the charges were dropped anyway
(ECF No. 40-1 at 6.) Using process ―to gain a collateral advantage extraneous to the merits‖ of a
case is an abuse of process under Connecticut law. Doctor’s Assocs., Inc. v. Weible, 92 F.3d 108,
114 (2d Cir. 1996). Thus, telling a criminal defendant that she must provide a general release of
civil claims to the arresting officers before the criminal charges would be dropped against her
establishes the improper-purpose element.
Further, a person‘s inaction after process has been initiated can constitute abuse of
process. For example, in El Badrawi v. Department of Homeland Security, a detained individual
who was not released by immigration authorities after ―the government had agreed to allow him
to voluntarily depart‖ stated a claim for abuse of process under Connecticut law because he
alleged that ―the government nevertheless detained him without any legitimate immigration
purpose.‖ El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 278 (D. Conn. 2008).
Here, even if Booth and Gallagher had a legitimate law-enforcement purpose in bringing charges
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against the plaintiff, there was no legitimate purpose in continue to press charges against her
once the documents that conclusively established her innocence were produced in pretrial
proceedings.
The defendants appear to concede that the plaintiff has alleged acts of misconduct during
the proceedings, but suggest that Booth‘s and Gallagher‘s conduct does not constitute the misuse
of process because they ―were obviously not in charge of the criminal prosecution‖ and ―the
charges were dropped anyway.‖ (ECF No. 40-1 at 6.) It does not matter that the charges were
eventually dropped. If it did, a tortfeasor who has harmed a plaintiff could escape liability by
ceasing his attempts to abuse process that did not achieve his improper purpose. At this early
stage of the proceedings, I must draw all reasonable inferences in favor of the plaintiff. Harris,
572 F.3d at 71. I therefore conclude that it is plausible that the arresting officers in this case
would have had sufficient influence on the progress of the criminal case, including the
prosecuting attorney, that their refusal to cease pressing charges even after being confronted with
evidence that conclusively showed that the claims were baseless constitutes abuse of process.
―This is the very definition of the tort of abuse of process: [law enforcement] officials were using
the legal process of [criminal prosecution] for reasons other than the reasons for which the
[prosecution] was designed.‖ El Badrawi, 579 F. Supp. 2d at 278.
B.

Counts V: Intentional Infliction of
Emotional Distress Against Gallagher and Booth

The plaintiff brings a claim of intentional infliction of emotional distress in Count V
against Gallagher and Booth. The standard for intentional infliction of emotional distress is set
forth above.
Gallagher and Booth argue that their actions were not extreme and outrageous. (ECF No
40-1 at 7.) Other than citing Appleton v. Board of Education, the defendants provide no authority
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for their position. Gallagher and Booth‘s alleged actions were not merely insulting or rude, but
were atrocious and utterly intolerable in a civilized society. Appleton, 254 Conn. at 210. The
officers allegedly decided that the plaintiff had forged documents because she highlighted them.
They made no effort to inspect the original documents, lied to a judge to obtain a warrant, caused
the plaintiff to be arrested, and pursued criminal charges against her. Most seriously, after they
obtained evidence that clearly established her innocence, the officers continued to press charges
against her not because they thought that she was guilty, but because they wanted her to agree
not to sue them for misconduct related to her arrest. This is ―beyond all possible bounds of
decency‖ and is ―utterly intolerable in a civilized community.‖ Id. Therefore, Gallagher and
Booth‘s motion to dismiss as to Count V is denied.
C.

Count VI: Negligent Infliction of Emotional Distress
Against Gallagher, Booth

To state a claim for negligent infliction of emotional distress, a plaintiff must allege that
―(1) the defendant‘s conduct created an unreasonable risk of causing the plaintiff emotional
distress; (2) the plaintiff‘s distress was foreseeable; (3) the emotional distress was severe enough
that it might result in illness or bodily harm; and (4) the defendant‘s conduct was the cause of the
plaintiff‘s distress.‖ Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003). The defendants argue
that (1) a plaintiff may not bring a tort sounding in negligence and a claim under 42 U.S.C. §
1983 for a claim involving intentional conduct by the defendants in the same action, (2) the
defendants are entitled to discretionary immunity, and (3) the statute of limitations bars this
claim. The defendants withdrew their statute of limitations argument in their reply brief. (ECF
No. 53 at 3 n.1.)

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1.

Whether the plaintiff may plead inconsistent legal theories

The defendants argue that the plaintiff may not maintain a negligence claim while also
pursuing a § 1983 claim based on intentional conduct. (ECF No. 40-1 at 8.) Some district courts
in the Second Circuit have ―held that where a plaintiff brings claims for excessive force and
[intentional infliction of emotional distress], ‗a negligence claim with respect to the same
conduct will not lie.‘‖ Outlaw v. City of Hartford, No. 3:07-CV-01769, 2015 WL 1538230, at
*12 (D. Conn. Apr. 6, 2015) (Crawford, J.); see also, e.g., Mazurkiewicz v. New York Transit
Auth., 810 F. Supp. 563, 570–71 (S.D.N.Y. 1993) (―Plaintiff cannot argue that defendants
engaged in intentional conduct that forms the basis of an assault and § 1983 excessive force
claim and also argue that defendants were negligent towards plaintiff.‖).
Outlaw is inapposite because it was decided at summary judgment, and thus was not
governed by the pleading rules set forth in Rule 8 of the Federal Rules of Civil Procedure. Rule
8(d) plainly allows a pleading to set forth claims alternatively and even inconsistently. Fed. R.
Civ. P. 8(d)(2) (―A party may set out 2 or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate ones.‖); Fed. R. Civ. P. 8(d)(3)
(―A party may state as many separate claims or defenses as it has, regardless of consistency.‖).
2.

Whether the defendants are entitled to discretionary act immunity

―Except as otherwise provided by law, a political subdivision of the state shall not be
liable for damages to person or property caused by . . . negligent acts or omissions which require
the exercise of judgment or discretion as an official function of the authority expressly or
impliedly granted by law.‖ Conn. Gen. Stat. § 52-557n(a)(2)(B). Similarly, a municipal
employee ―has a qualified immunity in the performance of governmental acts,‖ which ―are
performed wholly for the direct benefit of the public and are supervisory or discretionary,‖ i.e.

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that require the ―exercise of judgment.‖ Violana v. Fernandez, 280 Conn. 310, 318 (2006). This
immunity is sometimes called ―qualified immunity‖ but I refer to it as ―discretionary act
immunity,‖ as does the Connecticut Supreme Court, to avoid confusion with the doctrine of
qualified immunity under 42 U.S.C. § 1983. Although immunity is generally a defense, ―an
affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6),
without resort to summary judgment procedure, if the defense appears on the face of the
complaint.‖ McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (quoting Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998)). The parties do not dispute whether the
officers‘ acts were discretionary.
Discretionary act immunity has three exceptions: (1) ―when the alleged conduct involves
malice, wantonness or intent to injure‖; (2) ―when a statute provides for a cause of action against
a municipality or municipal official for failure to enforce certain laws‖; and (3) ―when the
circumstances make it apparent to the public officer that his or her failure to act would be likely
to subject an identifiable person to imminent harm.‖ Id. (quoting Doe v. Petersen, 279 Conn.
607, 614–15 (2006)). The parties dispute whether the plaintiff has alleged that it would have
been apparent to Booth and Gallagher that their failure to act would be likely to subject the
plaintiff to imminent harm. (ECF No. 49 at 22; ECF no. 53 at 4.) This exception has three
elements: ―(1) an imminent harm; (2) an identifiable victim [or narrowly defined identifiable
classes of foreseeable victims]; and (3) a public official to whom it is apparent that his or her
conduct is likely to subject that victim to that harm.‖ Violano, 280 Conn. at 329 (internal
footnote omitted) (quoting Doe, 279 Conn. at 616); Haynes v. City of Middletown, 314 Conn.
303, 312–313 (2014).

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An imminent harm is one that has a significant and foreseeable risk of occurring.
Purzycki v. Town of Fairfield, 244 Conn. 101, 110 (1988). ―[W]hether a particular plaintiff
comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn
exception to qualified immunity ultimately is a question of law for the courts, in that it is in
effect a question of whether to impose a duty of care. . . . In delineating the scope of a
foreseeable class of victims exception to governmental immunity, our courts have considered
numerous criteria, including the imminency of any potential harm, the likelihood that harm will
result from a failure to act with reasonable care, and the identifiability of the particular victim.‖
Grady v. Town of Somers, 294 Conn. 324, 351 (2009). The scope of this foreseeable class of
victims is narrow. Id. at 351–54 (―[A] six year old child present on school grounds to attend an
after school day care program, and by association, his mother, who was injured when she fell on
school grounds after she arrived to pick her child up, were not ‗members an identifiable class of
foreseeable victims‘‖) (quoting Durrant v. Bd. of Educ. 284 Conn. 91, 103–04 (2007)).
Applying those principles, I determine that the plaintiff has alleged that the identifiable
victim harm exception applies. First, she has alleged an imminent harm, that is a harm ―that
carries a significant and foreseeable risk of occurring.‖ Purzycki, 244 Conn. at 110. The harm of
being arrested after police seek an arrest warrant is unlike the types of harm that the Connecticut
Supreme Court has held not to be imminent, such as the risk of theft or fire. Violano, 280 Conn.
at 331–32. There is a significant and foreseeable risk that failing to adequately investigate a
charge of forgery before applying for an arrest warrant, (ECF No. 34 ¶¶ 39, 44–45), would lead

16

to the criminal prosecution of the accused and that such a prosecution—based on false charges—
would be severely distressing. 1
Second, she has alleged that she was an identifiable victim. The Connecticut Supreme
Court emphasized that whether an individual is an identifiable victim is a question of law that
requires considering ―the imminency of any potential harm, the likelihood that harm will result
from a failure to act with reasonable care, and the identifiability of the particular victim.‖ Grady,
294 Conn. at 351. Those factors all weigh in favor of holding that the plaintiff was an
identifiable victim of Booth‘s and Gallagher‘s alleged negligence. There was a high likelihood
that the plaintiff would be arrested and prosecuted when the officers presented a judge with a
misleading and incomplete arrest warrant. (Id. at ¶¶ 38–47.) Further, the investigation, warrant,
and subsequent prosecution all were directed specifically at the plaintiff, not a large undefined or
unknown group of individuals.
Third, it would have been apparent to the officers in question that their conduct, seeking
an arrest warrant despite having investigated the charges inadequately, would subject the
plaintiff to the severe emotional distress associated with being falsely accused of a crime by the
State. (Id. at ¶¶ 38–47.)
For these reasons, I deny the motion to dismiss on the ground that the identifiable victim
exception to discretionary act immunity does not apply.

1

Several Connecticut trial courts have ―held that the imminent harm complained of must
be physical in nature in order for the exception to apply.‖ Petrillo v. Town of Clinton, No.
MMXCV136010856, 2015 WL 829396, at *4 (Conn. Sup. Feb. 2, 2015) (collecting cases). At
least one case in this Court noted that ―the Connecticut Supreme Court has explicitly entertained
an identifiable person-imminent harm claim involving what it called a ―nonphysical risk of
harm.‖ Pines v. Bailey, No. 3:10CV866 MRK, 2012 WL 2958213, at *6 (quoting Doe, 279
Conn. at 618 n.10), rev’d in part on other grounds, 563 Fed. Appx. 814 (2d Cir. 2014). The
parties do not raise this issue and I do not address it.
17

V.

Count VI: Indemnification for Negligent Infliction of Emotional Distress
Against the City of Stamford
The plaintiff alleges in Count VI that the City of Stamford is liable under Conn. Gen.

Stat. § 7-465 ―for damages awarded [against Booth and Gallagher] for the infringement of the
civil rights, and physical damage to the property of the plaintiff as a result of the events
complained herein . . . .‖ (ECF No. 34 at ¶¶ 78, 80.) The City of Stamford disputes this liability.
Under § 7-465 a municipality generally must indemnify its employees for
all sums which such employee becomes obligated to pay by reason of the liability
imposed upon such employee by law for damages awarded for infringement of
any person's civil rights or for physical damages to person or property, except as
set forth in this section, if the employee, at the time of the occurrence, accident,
physical injury or damages complained of, was acting in the performance of his
duties and within the scope of his employment, and if such occurrence, accident,
physical injury or damage was not the result of any wilful or wanton act of such
employee in the discharge of such duty.
Conn. Gen. Stat. § 7-465(a). A plaintiff who wishes to hold a municipality derivatively liable
under § 7-465 must bring suit against both a municipal employee and a municipality, Kaye v.
Town of Manchester, 20 Conn. App. 439, 441–44 (1990), and must file a ―written notice of the
intention to commence such action and of the time when and the place where the damages were
incurred or sustained‖ with the clerk of the municipality within six months of the time the injury
occurred, Conn. Gen. Stat. § 7-465(a).
The City does not explain why it believes that it cannot be liable given the plaintiff‘s
allegations, but merely states ―[w]hile [§] 7-465 provides an indemnity to a municipal employee
from his municipal employer in the event the former suffers a judgment under certain prescribed
conditions, it is quite clear that the municipality does not assume the liability in the first

18

instance.‖ (ECF No. 40-1 at 11 (quoting Fraser v. Henninger, 173 Conn. 52, 56 (1977).) In the
City‘s reply, it clarifies that the claim should be dismissed because the claim against the City has
not been pled in a separate count. (ECF No. 53 at 5.) According to the Connecticut Appellate
Court, ―[a] claim under § 7-465 should contain two counts, one against the agent, and the second
against the municipality in indemnification.‖ Caruso v. City of Milford, 75 Conn. App. 95, 100
n.5 (2003). This appears to be a procedural requirement or suggestion for pleading in
Connecticut state courts and is inapplicable here. See Gasperini v. Ctr. for Humanities, Inc., 518
U.S. 415, 428 (1996) (―[F]ederal courts sitting in diversity apply state substantive law and
federal procedural law.‖). Federal procedure requires only a ―short and plain statement of the
claim showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a). Federal Rule of Civil
Procedure 12(b) does not make the failure to include claims in separate counts fatal to a
plaintiff‘s efforts to state a claim. Compare Fed. R. Civ. P. 12(b) with Fed. R. Civ. P. 10(b) (―If
doing so would promote clarity, each claim founded on a separate transaction or occurrence—
and each defense other than a denial—must be stated in a separate count or defense.‖). While the
plaintiff‘s claim may not be artfully pled, the City has not presented an argument to show that the
plaintiff fails to state a claim. Therefore, I do not dismiss the claim against the City on the
ground that the claim is not included in a separate ―count.‖2

2

I note that the plaintiff has not alleged that she filed written notice with the City of
Stamford within the requisite time. See Perodeau v. City of Hartford, 259 Conn. 729, 747 n. 20
(2002) (―The liability of the municipality, but not that of the municipal employee, is dependent
upon the giving of proper statutory notice.‖). However, the City of Stamford has not moved for
dismissal for failure to comply with the written notice requirement and the requirement can be
waived in certain circumstances, Fraser, 173 Conn. at 57–59. Therefore, I decline to dismiss the
claim on that ground.
19

VI.

Conclusion
For the reasons discussed above, Dr. Shah‘s Motion to Dismiss (ECF No. 36) and the

remaining defendants‘ Motion to Dismiss (ECF No. 40) are DENIED.
IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
March 15, 2016

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