Avitable et al v. Raywood
Filing
31
ORDER: For the reasons set forth in the attached, the defendant's 28 motion for summary judgment is GRANTED. Signed by Judge Michael P. Shea on 8/29/2019. (Ram, Megha)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RENA AVITABLE AND CLAIRE FEIN
No. 3:17-cv-01696 (MPS)
Plaintiffs,
v.
DANIEL RAYWOOD,
Defendant.
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiffs Rena Avitable and Claire Fein filed suit against defendant Detective Daniel
Raywood of the West Hartford Police Department. They allege that the defendant subjected them
to malicious prosecution in violation of 42 U.S.C. § 1983 when he filed criminal charges against
them for a dispute with their plumbing contractor that was, in their view, civil in nature. They
seek compensatory damages, punitive damages, as well as attorneys’ fees and costs. Defendant
filed a motion for summary judgment arguing that he is entitled to judgment on plaintiffs’
Section 1983 claim as a matter of law. For the reasons set forth below, defendant’s motion for
summary judgment is GRANTED.
I.
Factual Background
The following facts, which are taken from the parties’ Local Rule 56(a) statements and
supporting exhibits, are undisputed unless otherwise indicated.
A. Cravo’s Allegations to Officer Urso
On November 30, 2015, Fernando Cravo went to the West Hartford Police Department
(“WHPD”) and lodged a complaint against plaintiffs with Officer Danielle Urso, who is not a
party. ECF No. 28-2 at ¶ 6; ECF No. 29-1 at ¶ 6. He reported to Officer Urso that he was a self1
contracting plumber and had been doing renovation work for plaintiffs at 49 Kingswood Road
(“49 Kingswood”) for approximately one month. ECF No. 28-2 at ¶ 7; ECF No. 29-1 at ¶ 7.
Plaintiffs had established a limited liability company that owned 49 Kingswood, ECF No. 28-2 at
¶ 3; ECF No. 29-1 at ¶ 3, and had hired Cravo in October 2015 to install new water lines at the
building. ECF No. 28-2 at ¶¶ 4-5; ECF No. 29-1 at ¶¶ 4-5. Cravo reported to Officer Urso that
plaintiffs agreed to pay him $850 to install the new water lines, ECF No. 28-2 at ¶ 8; ECF No.
29-1 at ¶ 8, and that he was not paid despite completing the work, ECF No. 28-2 at ¶¶ 9-10; ECF
No. 29-1 at ¶¶ 9-10. Cravo provided Officer Urso with a copy of a hand-written invoice for the
plumbing work he had completed. ECF No. 28-2 at ¶ 9; ECF No. 29-1 at ¶ 9.
Cravo also reported to Officer Urso that, on November 15, 2015, plaintiffs asked him to
perform a second job at 49 Kingswood. ECF No. 28-2 at ¶ 11; ECF No. 29-1 at ¶ 11. The second
job included, among other things, replacing radiators on the first and second floors of the
residence. ECF No. 28-2 at ¶ 11; ECF No. 29-1 at ¶ 11. Cravo showed Officer Urso text
messages he exchanged with Avitable in which they agreed on $6,200 for this work. ECF No.
28-2 at ¶ 12; ECF No. 29-1 at ¶ 12.1
1
Defendant states that a true and accurate printout of all text messages between Avitable and
Cravo from October 28, 2015 to November 28, 2015 was submitted as an exhibit in this case.
ECF No. 28-2 at ¶ 33; ECF No. 28-13. This assertion is supported by an affidavit by Cravo, ECF
No. 28-10 at 8, and Fein’s testimony that the phone number at the top of the printout is a number
for one of Avitable’s devices, ECF No. 28-6 at 29. Plaintiffs deny that Fein’s deposition
testimony “in any way confirms that this was a true and accurate print out,” because Fein
repeatedly testified that she had no personal knowledge about text communications between
Avitable and Cravo, ECF No. 29-1 at ¶ 33; ECF No. 28-5 at 24; ECF No. 28-6 at 28-31. This is
not a proper denial as Fein states only that she has no personal knowledge about the fact, which
shows only that she is unable to contradict Cravo’s affidavit. Moreover, plaintiffs admit that
(860) 559-1456 (the number on the printout) was Avitable’s cellphone number at all times
relevant to this case. ECF No. 28-2 at ¶ 31; ECF No. 29-1 at ¶ 31. They also admit that Avitable
exchanged a series of text messages with Cravo – messages that are reflected on the printout –
and even rely on those messages to support their arguments. ECF No. 29-1 at ¶¶ 35-42
(admitting statements of fact in which defendants set forth a series of text messages from the
2
Cravo told Officer Urso that, based on the agreement regarding the second job, he
purchased more than $1,000 worth of plumbing supplies from Bender Plumbing Supplies
(“Bender”). ECF No. 28-2 at ¶ 13; ECF No. 29-1 at ¶ 13. He also reported that Bender delivered
the supplies to 49 Kingswood on November 24, 2015 and provided Officer Urso with a copy of
the Shipment Confirmation. ECF No. 28-2 at ¶ 14; ECF No. 29-1 at ¶ 14. Cravo reported to
Officer Urso that he was present outside 49 Kingswood when the plumbing supplies were
delivered. ECF No. 28-2 at ¶ 15. Plaintiffs deny this statement and point to Fein’s testimony that
she did not know how the supplies got to the residence. ECF No. 29-1 at ¶ 15. This is not a
proper denial as plaintiffs cite only a lack of personal knowledge about the fact, rather than any
evidence that Cravo was not present when the supplies were delivered. Moreover, Fein testified
that Cravo was outside the home with the supplies when she arrived that evening. ECF No. 29-1
at ¶ 15. The fact is therefore deemed admitted. Cravo further reported to Officer Urso that when
plaintiffs arrived at 49 Kingswood that day, they claimed that they forgot to bring a check for the
$850 they owed him for the first job. ECF No. 28-2 at ¶ 16; ECF No. 29-1 at ¶ 16. Cravo told
Officer Urso that, because he still expected plaintiffs to pay him for the first job, he placed the
supplies inside the home and planned to return on November 28, 2015, to work on the second
job. ECF No. 28-2 at ¶ 17; ECF No. 29-1 at ¶ 17.
Cravo reported to Officer Urso that he returned to 49 Kingswood on November 28, 2015
to begin working on the second job and that neither plaintiff was there to let him into the
printout); id. at ¶ 34 (plaintiffs arguing that “based upon the chain of messages[,] it is unclear as
it appears there was breakdown of communication and missed meeting times related to this
work”); id. at 6 ¶ 3 (plaintiffs arguing that “[t]he text message chain entered by defendant as
Exhibit I does not support the proposition that Cravo was not paid” and that “based upon this
chain of texts it appears Avitable met Cravo on Tuesday 24 2015 , after going to bank earlier in
day”).
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residence. ECF No. 28-2 at ¶ 18; ECF No. 29-1 at ¶ 18. He said that Avitable ceased all
communication with him that day regarding the outstanding bill for $850 and the materials he
had purchased from Bender, which remained locked inside 49 Kingswood. ECF No. 28-2 at ¶
19; ECF No. 29-1 at ¶ 19. He also showed Officer Urso the text messages that he sent to
Avitable while he was waiting outside the residence that day. ECF No. 28-2 at ¶ 18; ECF No. 291 at ¶ 18. These messages are as follows:
[Cravo, 8:01am]: Rena I am going to to the house can you open the door
[Cravo, 8:10am]: I am at the house call me
[Cravo, 10:17am]: I am waiting for you call if you don’t want to do the job then let me go
and get the material
[Cravo, 2:45pm]: Rena can you have clairese call me
ECF No. 28-2 at ¶¶ 18, 40-42; ECF No. 29-1 at ¶¶ 18, 40-42; ECF No. 28-16 at 3. Defendant
asserts that the plumbing supplies from Bender are still inside 49 Kingswood. ECF No. 28-2 at ¶
48. Plaintiffs do not deny that plumbing supplies are still inside the property, but cite Fein’s
testimony that the Bender supply list did not appear to match up with the supplies stored inside at
49 Kingswood. ECF No. 29-1 at ¶ 48.
Officer Urso called both plaintiffs during her investigation into Cravo’s complaint and
neither one answered the calls or responded to voicemail messages. ECF No. 28-2 at ¶ 20.
Plaintiffs admit in part and deny in part this assertion. ECF No. 29-1 at ¶ 20. But to support their
partial denial, they state only that Avitable “testified that she did not return a telephone call of
Officer Urso’s.” Id. This is consistent with the defendant’s statement that “neither plaintiff
answered the calls or responded to voicemail messages,” ECF No. 28-2 at ¶ 20, and plaintiffs do
not provide any further explanation of their partial denial. The Court therefore deems this fact
admitted. Officer Urso also went to the plaintiffs’ residence at 34 South Quaker Lane on
November 30, 2015 and, although it was apparent to Officer Urso that someone was inside, no
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one came to the door. ECF No. 28-2 at ¶ 21. Plaintiffs admit “that is what officer has stated in
her incident report and her affidavit” and cite no evidence to suggest that what Officer Urso
wrote in the incident report is untrue. ECF No. 29-1 at ¶ 21.2 Accordingly, the Court deems this
fact admitted.
B. Transfer of Cravo’s Case to Defendant Detective Raywood
Cravo’s complaint was then transferred from Officer Urso to defendant. ECF No. 28-2 at
¶ 22; ECF No. 29-1 at ¶ 22. Defendant spoke to Cravo on December 17, 2015 and Cravo told
him that he still had not received any money from plaintiffs for the first job and that plaintiffs
still had not let him retrieve the materials from inside 49 Kingswood. ECF No. 28-2 at ¶ 22; ECF
No. 29-1 at ¶ 22. Later that day, defendant went to plaintiffs’ residence and spoke with Avitable
in the driveway. ECF No. 28-2 at ¶ 23; ECF No. 29-1 at ¶ 23. Defendant told Avitable that Cravo
would drop the complaint if plaintiffs returned the materials to him. ECF No. 28-2 at ¶ 23; ECF
No. 29-1 at ¶ 23. Defendant asserts that Avitable refused to speak to him about Cravo’s
complaint and told him to speak to her attorney. ECF No. 28-2 at ¶ 23; ECF No. 29-1 at ¶ 23.
Avitable does not deny this interaction, but adds that she told defendant the dispute was a civil
matter and gave him her attorney’s business card. ECF No. 29-1 at ¶ 23 & 6 ¶ 1. The following
day, defendant called Bender and received confirmation that Bender had delivered plumbing
materials to 49 Kingswood on November 24, 2015, that the total value of the materials was
$1073.21, and that this amount had been billed to Cravo. ECF No. 28-2 at ¶ 24. Plaintiffs
The arrest warrants and incident report say that Officer Urso went to the plaintiffs’ residence on
December 1, 2015, not on November 30, 2015. ECF No. 28-7 at 7; ECF No. 28-8 at 7; ECF No.
28-17 at 2. Whether Officer Urso went to the residence on November 30 or December 1 is not
material as plaintiffs do not submit any evidence to dispute defendant’s assertion that Officer
Urso, at some point after speaking with Cravo, knocked on the front door of the residence and no
one came to the door.
2
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“[a]dmit” that “this is what defendant Raywood wrote in in the arrest warrant
application/affidavit.” ECF No. 29-1 at ¶ 24. They do not dispute the truth of the statement, nor
do they cite any evidence suggesting it is untrue. The Court therefore deems this fact admitted.
Defendant asserts that he called plaintiffs multiple times to discuss Cravo’s complaint
and they refused to speak with him or return his calls. ECF No. 28-2 at ¶ 46. Plaintiffs dispute
this statement of fact; to support their denial, they point to Fein’s testimony that she picked up a
call from defendant, the call dropped, and defendant then left threatening messages that he would
arrest her if she did not call him back. ECF No. 29-1 at ¶ 46; ECF No. 28-5 at 21. Fein also
testified that defendant called them repeatedly “to intimidate [them], not to hear [their] story.”
ECF No. 29-1 at ¶ 46; ECF No. 28-5 at 22. Defendant asserts that plaintiffs never made a
complaint to the WHPD about Cravo and never told a WHPD officer that they had paid Cravo.
ECF No. 28-2 at ¶ 45. Plaintiffs do not dispute this statement, but again note that Avitable
specifically told defendant that it was a civil matter and gave him her attorney’s business card.
ECF No. 29-1 at ¶ 45.
C. Plaintiffs’ Criminal Cases
On January 7, 2016, defendant signed arrest warrant affidavits charging plaintiffs with
larceny in the fifth degree, conspiracy to commit larceny in the fifth degree, larceny in the fourth
degree, and conspiracy to commit larceny in the fourth degree. ECF No. 28-2 at ¶ 25; ECF No.
29-1 at ¶ 25. He stated, in the arrest warrant affidavits, that Avitable “did not want to answer any
of my questions and told me to speak with her attorney,” but did not include Avitable’s statement
that the dispute was a civil matter or the fact that she gave him the attorney’s business card. ECF
No. 28-7 at 7; 29-1 at 6 ¶ 2. Defendant asserts that Avitable does not dispute the accuracy of any
paragraph in his arrest warrant affidavit. ECF No. 28-2 at ¶ 44. Plaintiffs deny this statement,
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point to Avitable’s testimony that Cravo was paid, and assert that defendant’s statement in the
arrest warrant affidavit that Cravo was not paid is false. ECF No. 29-1 at ¶ 44. But plaintiffs do
not deny that defendant believed Cravo had not been paid based on Cravo’s report to him, and do
not point to any evidence that they told the defendant that they had paid Cravo. Defendant also
asserts that while Fein disputes the accuracy of certain information Cravo reported to Officer
Urso, as documented in defendant’s warrant affidavits, she does not dispute that Cravo actually
reported that information. ECF No. 28-2 at ¶ 47. Plaintiffs deny this statement in part but do not
point to any evidence that Cravo did not report the information, stating only that neither plaintiff
was provided with any statement Cravo may have made to the WHPD. ECF No. 29-1 at ¶ 47.
On January 11, 2016, Superior Court Judge Nazzaro reviewed and signed both arrest
warrants. ECF No. 28-2 at ¶ 26; ECF No. 29-1 at ¶ 26. On January 26, 2016, plaintiffs went to
the WHPD where defendant served them with the arrest warrants and processed them. ECF No.
28-2 at ¶ 27; ECF No. 29-1 at ¶ 27. On September 16, 2016, the criminal charges against
plaintiffs were dismissed in Hartford Superior Court. ECF No. 28-2 at ¶ 28; ECF No. 29-1 at ¶
28; ECF No. 28-19. During the disposition hearing, the prosecuting state’s attorney advised the
Court several times that he agreed to dismiss the criminal charges because Cravo was an
unlicensed plumber. ECF No. 28-2 at ¶ 29; ECF No. 29-1 at ¶ 29.
II.
Legal Standards
The court must grant a motion for summary judgment if the moving party shows “that
there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit
under the governing law,” and a dispute is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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If a motion for summary judgment is supported by documentary evidence and sworn affidavits
and “demonstrates the absence of a genuine issue of material fact,” the nonmoving party must do
more than assert the existence of some unspecified disputed material facts or “rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d
42, 44 (2d Cir. 2015) (citation omitted). The party opposing the motion for summary judgment
“must come forward with specific evidence demonstrating the existence of a genuine dispute of
material fact.” Id. In reviewing the record, the court “must construe the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in its favor.” Gary
Friedrich Enterprises, LLC v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013).
III.
Discussion
“In 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.” Fulton v. Robinson, 289 F.3d 188,
195 (2d Cir. 2002) (internal citations omitted). “To prevail on a malicious prosecution claim
under Connecticut law, a plaintiff must prove the following elements: (1) the defendant initiated
or continued criminal proceedings against the plaintiff; (2) the criminal proceeding terminated in
favor of the plaintiff; (3) ‘the defendant acted without probable cause’; and (4) ‘the defendant
acted with malice.’” Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009) (quoting McHale v.
W. B. S. Corp., 187 Conn. 444, 447 (1982)). Defendant argues that plaintiffs cannot establish the
second, third, or fourth elements of their malicious prosecution claim and that, in any case, he is
entitled to qualified immunity. I find that the undisputed facts, even when considered in the light
most favorable to the plaintiffs, show that the plaintiffs’ arrests were supported by probable
cause – or at the very least “arguable probable cause” sufficient to afford the defendant qualified
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immunity. Because this is enough to grant the defendant’s motion for summary judgment, I do
not address the parties’ remaining arguments.
“[P]robable cause to arrest is a complete defense to a claim of malicious prosecution,”
D’Angelo v. Kirschner, 288 Fed. Appx. 724, 726 (2d Cir. 2008), and it “exists when the arresting
officer has knowledge or reasonably trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime,” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)
(internal quotation marks omitted). Where a neutral magistrate has issued a warrant, as in this
case, there is “a presumption that it was objectively reasonable for the officers to believe that
there was probable cause.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).
“[T]hat presumption can be defeated by showing that a defendant (1) knowingly and
deliberately, or with a reckless disregard of the truth, procured the warrant, (2) based on false
statements or material omissions, that (3) were necessary to the finding of probable cause.”
Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (internal quotation marks omitted). To
determine whether false or omitted information was necessary to the finding of probable cause,
the court undertakes a two-step process: “First, the court must correct any false statements and
supply any omitted material from the affidavit. Second, the court must review the ‘corrected’
affidavit and determine whether, as a matter of law, probable cause remains.” Barrows v.
Coleman, 352 F. Supp. 2d 276, 282 (D. Conn. 2005) (internal citation omitted). Here, plaintiffs
argue that defendant made material omissions in his arrest warrant affidavits by failing to include
Avitable’s statement that the dispute was a civil matter and the fact that Avitable gave defendant
her attorney’s business card. ECF No. 29 at 7; 29-1 at 6 ¶ 2. I disagree as the undisputed facts
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show that plaintiffs’ arrests were supported by probable cause even after supplementing the
affidavits with this omitted information.
Plaintiffs were charged with larceny in the fifth degree, conspiracy to commit larceny in
the fifth degree, larceny in the fourth degree, and conspiracy to commit larceny in the fourth
degree. ECF No. 28-2 at ¶ 25; ECF No. 29-1 at ¶ 25. Under Connecticut General Statute § 53a119, “[a] person commits larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such
property from an owner.”3 A person is guilty of larceny in the fourth degree when the value of
the property or service at issue exceeds one thousand dollars, Conn. Gen. Stat. § 53a-125(a), and
is guilty of larceny in the fifth degree when the value of the property or service at issue exceeds
five hundred dollars, Conn. Gen. Stat. § 53a-125a(a). And finally, a person is guilty of
conspiracy when “with intent that conduct constituting a crime be performed, he agrees with one
or more persons to engage in or cause the performance of such conduct, and any one of them
commits an overt act in pursuance of such conspiracy.” Conn. Gen. Stat. § 53a-48(a).
The undisputed facts set forth in the arrest warrant affidavits are sufficient to establish
probable cause that plaintiffs committed these crimes, and “correcting” the affidavits with the
omitted information does not change this determination. First, Cravo reported to Officer Urso
that plaintiffs never paid him any of the $850 they owed him for the work he completed under
his agreement with plaintiffs. ECF No. 28-2 at ¶ 10; ECF No. 29-1 at ¶ 10; ECF No. 28-7 at 6;
The definitional statute, Conn. Gen. Stat. § 53a-119, goes on to list examples of larceny, some
of which involve theft of services. The specific definition of “theft of services” in this list does
not appear to cover the conduct in this case, but the definitional statute makes clear that “larceny.
. . is not limited to” the items in the list, Conn. Gen. Stat. § 53a-119, and the substantive statutes
establishing the fourth and fifth degree larceny offenses involved here both make clear that they
apply to “property or service,” Conn. Gen. Stat. §§ 53a-125(a), 53a-125a(a).
3
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ECF No. 28-8 at 6. Second, Cravo provided the officers with (1) text messages that showed an
agreement with plaintiffs to complete the second job for $6,200, ECF No. 28-2 at ¶ 12; ECF No.
29-1 at ¶ 12; ECF No. 28-7 at 6; ECF No. 28-8 at 6; (2) the shipment confirmation generated by
Bender showing that Cravo purchased supplies and had them delivered to 49 Kingswood, ECF
No. 28-2 at ¶¶ 13-14; ECF No. 29-1 at ¶¶ 13-14; ECF No. 28-7 at 6; ECF No. 28-8 at 6; and (3)
text messages showing that Avitable did not respond to Cravo’s messages about retrieving the
materials from inside the building, ECF No. 28-2 at ¶ 18; ECF No. 29-1 at ¶ 18; ECF No. 28-7 at
6-7; ECF No. 28-8 at 6-7. Third, defendant independently verified that Bender delivered
plumbing materials to 49 Kingswood on November 24, 2015, that the total value of the materials
was $1073.21, and that this amount had been billed to Cravo. ECF No. 28-2 at ¶ 24; ECF No.
29-1 at ¶ 24; ECF No. 28-7 at 7; ECF No. 28-8 at 7. And finally, both defendant and Officer
Urso attempted to discuss Cravo’s allegations with plaintiffs, and received no information from
them contradicting Cravo’s account. ECF No. 28-2 at ¶¶ 20-21, 23, 46; ECF No. 29-1 at ¶¶ 2021, 23, 46; ECF No. 28-7 at 7; ECF No. 28-8 at 7.
In making a probable cause determination, an officer is entitled to rely “on the [victim’s]
allegations that a crime has been committed” and on “the allegations of [his] fellow police
officer[].” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000); see also Miloslavsky v. AES
Engr. Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) (“[I]t is well-established that a law
enforcement official has probable cause to arrest if he received his information from some
person, normally the putative victim or eyewitness, who it seems reasonable to believe is telling
the truth.”) aff’d, 993 F.2d 1534 (2d Cir. 1993). Thus, the allegations from Cravo, the invoice for
the work performed, the information from Officer Urso, the text messages, the statement from
Bender, and the lack of any contradictory information from plaintiffs, together, is more than
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sufficient to warrant a person of reasonable caution to believe (1) that plaintiffs had the intent to
wrongfully withhold from Cravo (a) the $850 for the plumbing services furnished to them, and
(b) property worth more than $1000, consisting of the plumbing materials locked in the building
they owned through their limited liability company; and (2) that plaintiffs agreed with each other
to engage in this conduct and that at least one of them committed an overt act to further this
agreement. Supplementing the arrest warrant affidavits with Avitable’s statement that the dispute
was a civil matter and the fact that Avitable gave defendant her attorney’s business card would
not change this probable cause determination. The omitted information does not call into
question any of the undisputed facts already included in the arrest warrant affidavits, nor does it
negate any element of the crimes with which plaintiffs were charged. Thus, under the corrected
affidavit doctrine, plaintiffs are unable to establish that defendant acted without probable cause.
Plaintiffs also argue that the defendant lacked probable cause because he “did not contact
the plaintiffs’ attorney.” ECF No. 29 at 7. But even if a discussion with plaintiffs’ attorney would
have resulted in the discovery of information that negated an element of the crimes with which
plaintiffs were charged, defendant was not required to contact plaintiffs’ attorney. “Once a police
officer has a reasonable basis for believing there is probable cause”—as is the case here—“he is
not required to explore and eliminate every theoretically plausible claim of innocence before
making an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also
Jocks v. Tavernier, 316 F.3d 128, 135–36 (2d Cir. 2003) (explaining that there is no “duty on the
arresting officer to investigate exculpatory defenses offered by the person being arrested or to
assess the credibility of unverified claims of justification before making an arrest”).
Finally, Plaintiffs appear to argue that defendant lacked probable cause because he was
told that the dispute was a civil matter. ECF No. 29 at 7 (“Raywood[] was informed by one of
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the plaintiffs (Rena Avitable) that the matter involving the contractor Cravo was a civil matter
and Avitable asked Raywood to contact her attorney. Therefore, at the time when Raywood filed
his affidavit he was aware of this significant information yet he continued to seek a warrant to
arrest the plaintiffs on criminal charges.”) (internal citations omitted). As an initial matter, the
Court notes that a person can face both civil and criminal liability for the same conduct. See, e.g.,
Hudson v. United States, 522 U.S. 93, 95-96 (1997) (“The Government administratively imposed
monetary penalties and occupational debarment on petitioners for violation of federal banking
statutes, and later criminally indicted them for essentially the same conduct. We hold that
the Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution
because the administrative proceedings were civil, not criminal.”); Securities and Exch. Commn.
v. Westerfield, 1997 WL 282241, at *3 (S.D.N.Y. May 27, 1997) (“[T]he same conduct that
constituted Westerfield’s criminal violations of Rule 10b–5 establishes his civil liability under
that Rule.”); State v. Farricielli, 71 Conn. App. 1, 5 (2002) (“It is well settled that a defendant
may face both criminal and civil sanctions for the same conduct.”). That is, plaintiffs could be
engaged in a civil case with Cravo while at the same time facing criminal penalties related to the
same underlying dispute.4 Even if the existence of a civil case was somehow exculpatory, the
mere assertion that the dispute was a civil matter would be insufficient to defeat probable cause;
A civil action for conversion can be distinguished from larceny in two ways: “First, [larceny]
requires an intent to deprive another of his property; second, conversion requires the owner to be
harmed by a defendant’s conduct.” Suarez-Negrete v. Trotta, 47 Conn. App. 517, 521 (Conn.
App. 1998). Therefore, larceny requires proof of “the additional element of intent over and
above” what is required to prove conversion. Id. The undisputed facts here were sufficient to
establish intent to deprive Cravo of his property. Particularly relevant to intent were Cravo’s
allegations that plaintiffs refused to pay him for completed work, ECF No. 28-2 at ¶ 10, ECF No.
29-1 at ¶ 10, and the text messages showing that Avitable did not respond to Cravo’s messages
about retrieving the plumbing materials from inside 49 Kingswood, ECF No. 28-2 at ¶ 18; ECF
No. 29-1 at ¶ 18. And as discussed in detail above, the undisputed facts also establish the other
components of the crimes with which plaintiffs were charged.
4
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otherwise, any suspect could forestall an arrest by making such a statement. See Panetta v.
Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (explaining that once an officer has a reasonable
basis for believing there is probable cause, his “failure to investigate an arrestee’s protestations
of innocence generally does not vitiate probable cause”).
IV.
Conclusion
In short, the undisputed facts concerning the circumstances known to defendant when he
initiated the larceny charges against plaintiffs make clear that he had probable cause – and at
least “arguable probable cause” – to bring those charges. Because probable cause is a complete
defense to a claim of malicious prosecution, the defendant’s motion for summary judgment is
GRANTED.
IT IS SO ORDERED.
__/s/
_
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
August 29, 2019
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