Thompson v. Rovella et al

Filing 39

ORDER denying 35 Motion for Reconsideration for the reasons set forth in the attached decision. Signed by Judge Vanessa L. Bryant on 08/01/2017. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HUBERT THOMPSON,
Plaintiff,
v.
JAMES C. ROVELLA, ET AL.,
Defendants.

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CASE NO. 3:15-cv-01742-VLB

August 1, 2017

MEMORANDUM OF DECISION ON MOTION FOR RECONSIDERATION [DKT. 35]
Presently before the Court is Plaintiff’s February 21, 2017 Motion for
Reconsideration of this Court’s February 14, 2017 Ruling and Order granting the
Defendant’s Motion to Dismiss.1 Although the initial complaint alleged claims for
civil rights violations under 42 U.S.C. § 1983, intentional infliction of emotional
distress, negligent infliction of emotional distress, and negligence, Plaintiff only
moves to reconsider the malicious prosecution claim asserted under § 1983. The
Court presumes familiarity with the facts and procedural history. For the foregoing
reasons, the Court DENIES the Motion for Reconsideration.
I.

Legal Standard
Reconsideration will generally only be granted when a party can point to “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 Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A.

Defendants timely filed their Opposition to the Plaintiff’s Motion to Dismiss on
March 13, 2017. See [Dkt. 36]. Although Plaintiff filed his Reply after the 14-day
deadline prescribed by Local Rule 7(d), the Court considered the Reply in making
its decision and grants Plaintiff’s Motion for Leave to File Late Brief, [Dkt. 37],
concurrent with this decision.

1

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Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). Reconsideration
should be granted only when a “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).

This Court will not grant a motion for

reconsideration “where the moving party seeks solely to relitigate an issue already
decided,” id., or where the moving party seeks “to plug gap[s] in an original
argument or to argue in the alternative once a decision has been made,” Horsehead
Res. Dev. Co., Inc. v. B.U.S. Envtl. Serv., Inc., 928 F. Supp. 287, 289 (S.D.N.Y. 1996)
(citations omitted). See Virgin Atl. Airways, 956 F.2d at 1255 (noting that “where
litigants have once battled for the court’s decision, they should neither be required,
nor without good reason permitted, to battle for it again”) (quoting Zdanok v.
Glidden Co., Durkee Famous Foods Division, 327 F.2d 944, 953 (2d Cir. 1964)).
Ultimately, however, the question is a discretionary one and the Court is not limited
in its ability to reconsider its own decisions prior to final judgment. See Virgin Atl.
Airways, 956 F.2d at 1255.
II.

Analysis
Plaintiff seeks reconsideration of the malicious prosecution claim on two

grounds.

First, Plaintiff requests that the Court reconsider its ruling on the

grounds of correcting clear error or preventing manifest injustice. See [Dkt. 35-1
(Mot. Reconsideration) at 2-3]. Second, Plaintiff argues the Court should revisit its
equitable tolling decision. Id. at 6. The Court addresses each argument in turn.

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A. Plaintiff Fails to Establish Clear Error or Manifest Injustice
Plaintiff claims that the Court overlooked the issue of probable cause as it
impacts the accrual date for a malicious prosecution claim. See id. at 2. As a
preliminary matter, it must be noted that Plaintiff’s opposition to Defendants’
Motion to Dismiss does not advance this theory. Courts are neutral arbiters of the
law and facts presented by the parties, not litigators. It is not the responsibility of
the Court to conceive legal theories and advance legal arguments on behalf of a
party. Instead ours is an adversarial system in which the role of the Court is to rule
on the issues raised by the parties based on the competing arguments advanced
by the parties.
Nevertheless, had Plaintiff done so, that argument would not have altered
the Court’s ruling. Probable cause, as Plaintiff rightly points out, is the third
element in a malicious prosecution claim under Connecticut state law.2 However,
a plaintiff must file an action in which to prove the elements of his claim within the
time dictated by applicable law. “Federal law governs the question of when a
federal claim accrues,” M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir.
2003), and for § 1983 malicious prosecution cases the absence of probable cause
is not a factor in determining the cause of action’s accrual date, which is when the

2
To prevail in a § 1983 malicious prosecution case, Plaintiff must establish the
elements under state law. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002).
The four elements in a malicious prosecution are: “(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.” See [Dkt. 35-1 at
3 (citing Brooks v. Sweeney, 299 Conn. 196, 211 (2010); Zenik v. O’Brien, 137 Conn.
592, 595 (1951))].
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statute of limitations begins to run and the consequent deadline by which a suit
must be brought.

The analysis is instead centered on whether “the criminal

proceedings have terminated in the plaintiff’s favor. . . .” Heck v. Humphrey, 512
U.S. 477, 489 (1994). The Court relied upon this rule in its initial decision on
Defendants’ Motion to Dismiss and sees no reason to reconsider.
A recent Second Circuit decision clarifies when a § 1983 malicious
prosecution claim accrues. Subsequent to this Court’s decision on Defendants’
Motion to Dismiss, the Second Circuit in Spak v. Phillips, 857 F.3d 458, 462 (2d Cir.
2017), addressed the “accrual date” in a malicious prosecution case and reiterated
that “‘favorable termination’ does not occur until the prosecution against the
plaintiff has ‘conclusively’ ended.” Id. (citing Murphy v. Lynn, 53 F.3d 547, 548 (2d
Cir. 1995)). Spak is particularly relevant to this case for two key reasons.
The first reason is the Second Circuit in Spak provided additional guidance
as to the meaning of “favorable termination” in the context of a nolle prosequi entry
under Connecticut law, which it ruled as a general matter constitutes a “favorable
termination.” See Spak, 857 F.3d at 463-64. An entry of nolle prosequi terminates
a “particular prosecution against the defendant” but allows the prosecutor to
initiate a second prosecution at any point before the time expiration period. Id. at
463. Even though “a nolle prosequi is not the equivalent of a dismissal of a criminal
prosecution with prejudice, because jeopardy does not attach,” it is nonetheless a
“favorable termination” because that particular prosecution ends. Id. The Second
Circuit went on to say that
[s]o long as a particular prosecution has been “conclusively”
terminated in favor of the accused, such that the underlying
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indictment or criminal information has been vacated and cannot be
revived, then the plaintiff has a justiciable claim for malicious
prosecution. At that point, all of the issues relevant to the claim—such
as malice and lack of probable cause—are ripe for adjudication.
Id. (internal citations omitted). In other words, the merits of the case, which include
the question of probable cause, are not ripe for adjudication and shall not be
considered unless it can be determined that the action “terminated in favor of the
accused.” Probable cause is therefore not relevant to determining the cause of
action accrual date under federal law following a nolle prosequi.
Here, it is undisputed in this case that all charges against Thompson were
dismissed on July 19, 2012. See [Dkt. 1 (Compl.) ¶ 67]. The dismissal of criminal
proceedings constitutes “favorable termination.” See, e.g., Murphy, 53 F.3d at 548
(finding a dismissal of criminal proceedings on speedy trial grounds to be
“conclusively terminated”); McFadden v. Kralik, No. 04 Civ. 8135(RCC)(JCF), 2007
WL 924464, at *5 (S.D.N.Y. Mar. 28, 2007) (“The plaintiff’s malicious prosecution
claim accrued on August 28, 1996, when the criminal charges against him for
attempted escape, possession of prison contraband, and criminal mischief were
dismissed.”). Were there to be any doubt, certainly the Second Circuit’s ruling that
a nolle prosequi entry is a “favorable termination” supports a finding that a
dismissal is “favorable termination” as well. The Court previously noted that
Plaintiff cannot rely on the Attorney General’s letter that it would not challenge his
innocence in the civil proceeding before the Claims Commissioner, because the
Attorney General does not have authority over the criminal proceeding. See [Dkt.

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33 (Decision on Mot. Dismiss) at 9-10 (citing Conn. Gen. Stat. § 3-125)].3 Plaintiff
has provided no reason to question this finding.
The second reason why Spak is particularly relevant to this reconsideration
decision is because the Second Circuit addressed the confusion about applying
federal law versus state law in the context of the “favorable termination” analysis.
The Second Circuit recognized that “[t]he fact that the [procedural] accrual of
Section 1983 claims is analyzed under federal common law, while the merits of
those claims are analyzed under the law of the state where the tort occurred, has
led to some confusion concerning the standards used to define a ‘favorable
termination’ in the malicious prosecution context.” Spak, 857 F.3d at 462. Namely,
even though “favorable termination” appears both in the procedural accrual date
analysis and the substantive element of the tort claim, courts must still adhere to
the rule that federal law applies to the procedural accrual date and state law applies
to the merits. Id. at 463. Courts should not conflate the two when analyzing case
law to reach the proper decision. Id. at 462-63.
This distinction is relevant here. Plaintiff correctly cited Connecticut state
law when he set forth the elements required to establish the merits of a malicious
prosecution claim in the Motion for Reconsideration. See [Dkt. 35-1 at 3 (citing

Plaintiff also argues that he could not have asserted this § 1983 malicious
prosecution claim prior to asserting his wrongful prosecution claim before the
Claim Commission under Conn. Gen. Stat. § 54-102uu, which allows a person to
receive compensation for wrongful termination where “[s]uch person’s conviction
was vacated or reversed and . . . the complaint or information dismissed on
grounds of innocence. . . .” (emphasis added). Innocence is not an element in a §
1983 malicious prosecution claim and would not be required to prevail in this case.
See Brooks v. Sweeney, 299 Conn. 196 (2010).
Therefore, this argument is
unavailing.
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Brooks, 299 Conn. at 210-11]. However, the key issue addressed in the Motion to
Dismiss was a federal procedural issue, namely the date by when the case had to
be filed under the applicable statute of limitations, not the substantive elements of
a claim which have to be proved by establishing the elements of the claim
prescribed in the state statute.
Plaintiff incorrectly relies on Connecticut state law to define the accrual date,
as he cites Burke v. Klevan, 130 Conn. App. 376, 381 (Conn. App. Ct. 2011) and
states that “[a] cause of action does not accrue for the purposes of a statute of
limitations until all elements are present. . . .” Id. at 4. Such language is clearly
different from the federal standard and understandably could lead a plaintiff to
believe the absence of probable cause must be necessary for the cause of action
to accrue. The Court also notes that to the extent it cited two state cases as
examples of dismissals constituting “favorable termination,” the intent was to
provide additional support for the federal law relied on by the Court and not to
suggest that state law applied.
Accordingly, the Court finds that it did not err in applying federal law to
determine the accrual date for Plaintiff’s cause of action. Plaintiff did not timely
file his § 1983 malicious prosecution claim and reconsideration is not appropriate
here on these grounds.
B. Equitable Tolling
Plaintiff also argued that equitable tolling should apply in both the
Opposition on the Motion to Dismiss and the Sur-Reply brief. Plaintiff posited that
Defendants had a statutory duty to inform Plaintiff of exculpatory information

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under Conn. Gen. Stat. § 54-86c(e)4, the United States Constitution, and the
Constitution of the State of Connecticut, and that the wrongful withholding of such
information constituted an “extraordinary circumstance” warranting equitable
tolling. See [Dkt. 27 (Opp’n Mot. Dismiss) at 6]. The Court in its initial decision
found that equitable tolling was not appropriate because, even if assuming
evidence was wrongfully withheld in his criminal case, the statute of limitations
began to run after the information was withheld and after Plaintiff was exonerated.
See [Dkt. 33 at 15-16].
Plaintiff does not challenge the Court’s decision on these grounds. Rather,
Plaintiff argues in the Motion for Reconsideration that he “did not have a cause of
action until [receiving] the letter from Assistant Attorney General Matthew B. Beizer
dated January 2, 2014” or that “[a]lternatively, if he did, until that letter it was not
known to the Plaintiff. . . .” [Dkt. 35-1 at 6]. He also argues in the Reply that a
prosecutor has wide discretion not to pursue a case and could have elected to
dismiss the case for any number of reasons other than the absence of probable
cause. See [Dkt. 37-1 at 3-4].
These arguments go to the merits of Plaintiff’s malicious prosecution claim,
which the Court did not reach because the case was time-barred. Nor do they raise
any intervening changes in controlling law, new evidence, or the need to correct
clear error or prevent manifest injustice, warranting reconsideration. See Virgin Atl.
Airways, 956 F.2d at 1255. As the Court stated in its initial decision, the fact that

4
Plaintiff’s citation of subsection (e) of Conn. Gen. Stat. § 54-86c appears to be a
typographical error based on the fact that it does not appear in the present statute
and the Court’s review of the legislative history.
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Plaintiff filed a claim for compensation for a civil wrong with the Claims
Commissioner indicates that he was aware he had a civil cause of action against
the State of Connecticut arising out of his prosecution. See [Dkt. 33 at 16]. The
Court reiterates that Plaintiff’s awareness about the absence of probable cause is
irrelevant to the accrual date for his cause of action. Accordingly, equitable tolling
is inappropriate here.
III.

Conclusion

For the aforementioned reasons, the Court DENIES Plaintiff’s Motion for
Reconsideration.

IT IS SO ORDERED.
/s/
_
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut, August 1, 2017.

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