Kennedy et al v. Caruso et al
DECISION AND ORDER granting 154 and 155 Defendants' Motions for Summary Judgment. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 11/19/2021. (Burlingham, Corinne)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
James Kennedy, et al.,
Frederick Caruso, et al.,
: No. 3:19-cv-260(VLB)
: November 19, 2021
MEMORANDUM OF DECISION GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Dkts. 154, 155]
Plaintiffs—James Kennedy (“Kennedy”) and Besa Kennedy—bring this
action against the Town of Fairfield (“Town”), Detective Frederick Caruso
(“Caruso”), Detective Sergeant Frederick Hine (“Hine”), and Carmina Hirsch
(“Hirsch”) (collectively “Defendants”) alleging various federal and state law claims
stemming from an Incident Report drafted during a two week period in which
Kennedy had legal custody of his two minor children pursuant to an emergency,
temporary ex parte order issued by the Connecticut Superior Court. Kennedy1
generally alleges that Hirsch and Caruso conspired to draft a false incident report
(“Incident Report”) that Hirsch would provide to the Connecticut Superior Court
adjudicating Kennedy’s custody of his children and the school officials of the
Throughout this decision, the Court will repeatedly identify Kennedy as if he is
the sole plaintiff. The Court understands he is not and that Besa Kennedy is listed
as a plaintiff in the underlying action. However, as will be addressed in greater
detail below, Besa Kennedy is not a significant part of this action considering she
has a single claim of intentional infliction of emotional distress that she has
constructively abandoned. See Part III.B.3.
schools where the children attend for the purpose of interfering with his custodial
rights. Kennedy further alleges that Hine, as Caruso’s superior, signed off on the
Incident Report knowing it contained false statements and was generally negligent
in his supervision of Caruso. Lastly, Kennedy alleges that the Town is liable for
Caruso and Hines conduct.
Before the Court are two motions for summary judgment filed by Caruso,
Hine, and the Town (collectively “Fairfield Defendants”) and Hirsch seeking
summary judgment on all counts. [Dkts. 154, 155, respectively]. Plaintiffs have
filed oppositions to each. [Dkts. 157, 158].
For the following reasons, Defendants’ motions are GRANTED.
A motion for summary judgment may be granted only where there is no
genuine dispute as to any material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); Coppola v. Bear Stearns & Co., 499 F.3d
144, 148 (2d Cir. 2007). “Material facts are those which ‘might affect the outcome
of the suit under the governing law,’ and a dispute is ‘genuine’ if ‘the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’”
Coppola, 499 F. 3d at 148 (citing to Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) (“Liberty Lobby”)). But “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of
material fact.” Wang v. Hearst Corp., 877 F.3d 69, 76 (2d Cir. 2017) (citing to Liberty
Lobby, 477 U.S. 248)). Whether a fact is material is determined by the substantive
law. Liberty Lobby, 477 U.S. at 248.
On a motion for summary judgment, “[t]he inquiry performed is the threshold
inquiry of determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in favor of either party.”
Green v. Town of E. Haven, 952 F.3d 394, 405–06 (2d Cir. 2020) (citing to Liberty
Lobby, 477 U.S. at 250). “Thus, in ruling on a motion for summary judgment, ‘the
district court is required to resolve all ambiguities, and credit all factual inferences
that could rationally be drawn, in favor of the party opposing summary judgment.’”
Id. (citing to Kessler v. Westchester County Department of Social Services, 461
F.3d 199, 206 (2d Cir. 2006)).
“The moving party bears the burden of showing the absence of a genuine
dispute as to any material fact . . . .” Crawford v. Franklin Credit Mgmt. Corp., 758
F.3d 473, 486 (2d Cir. 2014). “[W]here the nonmoving party will bear the burden of
proof on an issue at trial, the moving party may satisfy its burden by ‘point[ing] to
an absence of evidence to support an essential element of the nonmoving party's’
case.” Id. (citation omitted). “[A] complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts
immaterial.” Id. (citing to Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
A party opposing summary judgment cannot defeat the motion by
relying on the allegations in his pleading, or on conclusory
statements, or on mere assertions that affidavits supporting the
motion are not credible. At the summary judgment stage of the
proceeding, Plaintiffs are required to present admissible evidence in
support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.
Welch–Rubin v. Sandals Corp., No. 3:03-cv- 481, 2004 WL 2472280, at *1 (D. Conn.
Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of
Connecticut, 817 F. Supp. 2d 28, 37 (D. Conn 2011). “The mere existence of a
scintilla of evidence in support of the [non-movant's] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [nonmovant].” Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir. 2003) (citing
to Liberty Lobby, 477 U.S. at 252)).
Where there is no more than a scintilla of
evidence upon which a jury could properly proceed to find a verdict for the party
producing it and upon whom the onus of proof is imposed, such as where the
evidence offered consists of conclusory assertions without further support in the
record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co.,
604 F.3d 712, 727 (2d Cir. 2010).
A party’s own affidavit may be enough to fend off summary judgment if it is
based on personal knowledge and its credibility is buttressed. See Danzer v.
Norden Sys., Inc., 151 F.3d 50, 53 (2d Cir. 1998) (reversing district court grant of
summary judgment because district court did not give party’s affidavit weight and
affidavit was corroborated by consistent prior pleadings and testimony); Rivera v.
Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (same).
However, if the affidavit is inconsistent with prior deposition testimony or
pleadings, it does not create “a genuine issue for trial.” Hayes v. New York City
Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); see Rojas v. Roman Catholic Diocese
of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (“in certain extraordinary cases, where
the facts alleged are so contradictory that doubt is cast upon their plausibility, the
court may pierce the veil of the complaint's factual allegations and dismiss the
Kennedy is self-represented (also known as pro se).
liberally construe a complaint filed by a pro se party to raise the strongest
arguments they suggest. See e.g., McCray v. Lee, 963 F.3d 110, 116–17 (2d Cir.
2020). “This policy of liberally construing pro se submissions is driven by the
understanding that ‘[i]mplicit in the right of self-representation is an obligation on
the part of the court to make reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack of legal training.’”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006). Kennedy is
not entitled to liberal construction because he is a lawyer. See Harbulak v. Suffolk
County, 654 F.2d 194, 198 (2d Cir. 1981) (citing to Haines v. Kerner, 404 U.S. 519,
520 (1972)). See also Holtz c. Rockefeller & Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir.
2001). With that said, the Federal Rules of Civil Procedure counsel courts to
construe pleadings “so as to do justice.” Fed. R. Civ. P. 8(e). Thus, the Court will
address the claims and arguments raised by Kennedy “so as to do justice.”
The Court assumes the parties’ familiarity with the underlying facts and only
repeats those relevant to this decision.
A. Rule 56(a)
The facts as outlined below come from the parties’ Local Rule 56(a)
statements of fact, exhibits attached to the motions, and information the Court can
judicially notice. The Court will address the rules relating to Rule 56(a)2 statements
to demonstrate flaws in Kennedy’s filings and the impact those flaws have on the
Court’s recitation of the facts relevant to this decision and adjudication of the
motions for summary judgment.
Local Rule 56(a) statements “must be followed by a specific citation to (1)
the affidavit of a witness competent to testify as to the facts at trial, or (2) other
evidence that would be admissible at trial.” Local Rule 56(a)3.
The "specific citation" obligation of this Local Rule requires parties to
cite to specific paragraphs when citing to affidavits or responses to
discovery requests and to cite to specific pages when citing to
deposition or other transcripts or to documents longer than a single
page in length. Failure to provide specific citations to evidence in the
record as required by this Local Rule may result in the Court deeming
admitted certain facts that are supported by the evidence in
accordance with Local Rule 56(a)1, or in the Court imposing
sanctions, including, when the movant fails to comply, an order
denying the motion for summary judgment, and when the opponent
fails to comply, an order granting the motion if the motion and
supporting materials show that the movant is entitled to judgment as
a matter of law.
Id. Rule 56 of the Federal Rules of Civil Procedure require “[a] party asserting that
a fact cannot be or is genuinely disputed must support the assertion by (A) citing
to particular parts of materials in the record . . .; or (B) showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R.
Civ. Pro. 56(c) (emphasis added). In reviewing a motion for summary judgment,
“[t]he court need consider only cited materials, but it may consider other materials
in the record.” Rule 56(c)(3). “If a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may: (1) give an opportunity to properly support or address
the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant
summary judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it; or (4) issue any
other appropriate order.” Rule 56(e).
Kennedy filed a Rule 56(a)2 statement in response to both motions for
However, at multiple points in his 56(a)2 statements, he
simply states “objection” but provides no basis for the objection, nor does he cite
to anything in the record establishing the basis for his objection. The Court will
consider the facts that were not properly objected to as undisputed pursuant to
B. Pre-Ex Parte Order Background
This case is related to a heavily litigated divorce and custody case that began
in 2009 before the Connecticut Superior Court (the “Family Court”).
Almeida-Kennedy v. Kennedy, Conn. Super. Ct. FBT-FA09-4030227-S. 2 Kennedy
married Fatima De Almeida-Kennedy (“De Almeida-Kennedy”) in 2001 and had two
children with her, the first born in 2003 and the second born in 2005. [Fairfield Mot.
at Ex. A, PDF p. 93–94]. In August 2009, Kennedy purchased a plane ticket for his
then-wife De Almeida-Kennedy to go to France for a week. [Fairfield Mot. at Ex A,
PDF p. 94–96].
While De Almeida-Kennedy was in France, Kennedy emailed her
stating he was leaving her and taking the children. [Fairfield Mot. at Ex. B]. This
The Court takes judicial notice of the docket sheet in the Family Court case. See
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“docket sheets are
public records of which the court could take judicial notice . . . .”).
email does not provide any information on where the children were being taken or
how she could get in direct contact with the children. [Id.]. Rather, the email
provides Kennedy’s stepfather’s telephone number to call to convey “urgent
matters, requests or to communicate  intent in relation” to the children and his
mother’s California address for “legal service.” [Id.; Fairfield Mot. at Ex. A, PDF p.
17]. Kennedy used a bank account that he shared with De Almeida-Kennedy to
purchase plane tickets to Austin, Texas, and for a hotel. [Fairfield Mot. at Ex A,
PDF p. 101–02].
On August 31, 2009, De Almeida-Kennedy went to the Fairfield Police
Department, met with Caruso and informed him that: she received an email from
Kennedy indicating he was separating from her, Kennedy moved the family and its
belongings from the residence without her knowledge or consent, the couple is
neither legally separated nor divorced, there was no Court orders concerning
custody, there were no domestic issues except for normal marital arguments over
money and sex, she and Kennedy recently filed for bankruptcy, she had no valid
credit cards, both of her vehicles were awaiting repossession, her house is going
to be foreclosed, she had little money and no job, when she returned the home was
empty and Kennedy did not provide a forwarding address, her and Kennedy’s cell
phones were cut off and so was the home phone, the majority of the furnishings
and clothes were removed except for her belongings, her personal paperwork was
gone, the children’s identification paperwork was gone, one of the vehicles was
gone and the other did not have a key, she could not determine where Kennedy
was through his mother, their joint debit card was being used in a hotel in Austin,
their joint debit card was used for airplane tickets, and $7,000 in cash was
withdrawn from their joint bank account. [Fairfield Mot. at Ex. C, PDF p. 1–3]. 3
On September 1, 2009, Caruso applied for and was granted an arrest warrant
for Kennedy for two counts of custodial interference in the first degree 4 and two
counts of risk of injury. [Fairfield Mot. at Ex. C, PDF p. 3; Ex. D]. Later that day,
Kennedy was arrested in Austin Texas by Texas law enforcement and charged with
two counts of custodial interference in the first degree and two counts of risk of
injury. [Fairfield Mot. at Ex. A, PDF p. 103, 108–09; Ex. C, PDF p. 3]. On September
17, 2009, Caruso and another FPD detective traveled to Texas, took custody of
Kennedy, then flew Kennedy back to Connecticut to be processed at the FPD.
[Fairfield Mot. at Ex. A, PDF p. 120–22; Ex. C, PDF p. 3]. These charges were
ultimately nolled5 in March 2010. [Fairfield Mot. at Ex. A, PDF p. 125].
On September 15, 2009, De Almeida-Kennedy filed for divorce in the
Connecticut Superior Court. See De Almeida-Kennedy v. Kennedy, Conn. Super.
Ct. FBT-FA09-4030227-S. On August 3, 2010, the divorce between Kennedy and De
Almeida-Kennedy was finalize after the parties entered into a separation
agreement, where they agreed to De Almeida-Kennedy having sole legal and
primary physical custody of the children. [Fairfield Mot. at Ex. A, PDF p. 129–130].
Kennedy indicated during his deposition he has no basis to dispute what in fact
De Almeida-Kennedy told Caruso. [Fairfield Mot. at Ex. A, PDF p. 119–20].
4 First Degree Custodial Interference has been referred to as “parental abduction”
by legislative researchers, the family court judge in the separate but related family
case, by Kennedy, the family court judge, counsel, and the GAL. Hirsch Mot. at Ex.
C, Ex. D, Ex. E; Fairfield Mot. at Ex. I, PDF p.11, Ex. J, at PDF p.8].
5 “Nolle,” which is short for “nolle prosequi” is a Latin phrase for “unwilling to
prosecute” and is commonly used on Connecticut courts for cases where the
state decides not to prosecute formal charges.
Under the separation agreement, Kennedy would have supervised visits with the
children and agreed to pay $1,000 per week. [Fairfield Mot. at Ex. A, PDF p. 129–
Kennedy’s supervised visitation was renewed in March 2013, when the
parties entered into a renewed agreement following a delinquency in support
payments. [Fairfield Mot. at Ex. A, PDF p. 131–33, 136–38].
In September 2014, Kennedy married Besa Kennedy. [Fairfield Mot. at Ex. A,
PDF p. 146].
On December 9, 2014, Kennedy and De Almeida-Kennedy entered into an
agreement in which the parties agreed that Kennedy would now share joint legal
custody of the children and primary custody would remain with De AlmeidaKennedy. [Fairfield Mot. at Ex. A, PDF p. 140–42]. This agreement also identified
an arrearage on alimony and child support. [Fairfield Mot. at Ex. A, PDF p. 140–42].
In June 2015, Kennedy moved to Trumbull, Connecticut. [Fairfield Mot. at Ex. A,
PDF p. 146].
In December 2015, Kennedy filed a motion to modify the custody agreement,
seeking sole legal and primary physical custody, and a downward modification or
elimination of unallocated alimony and support payments. [Fairfield Mot. at Ex. A,
PDF p. 147]. Also, in December 2015, De Almeida-Kennedy petitioned Support
Enforcement to enforce the order for Kennedy to pay weekly unallocated alimony
and support. [Fairfield Mot. at Ex. A, PDF p. 147–48].
On March 10, 2016, following the filing of the motions to modify custody and
support but before the adjudication of the motions, Hirsch was appointed GAL in
the family court matter. [Fairfield Mot. at Ex. A, PDF p. 149; Hirsch Mot. at Ex. H].
As part of the appointment, Hirsch was granted authority to review police reports,
communicate with the children, review educational records and confer with
teachers and school authorities. [Fairfield Mot. at Ex. E, PDF p. 2–3; Ex. F; Hirsch
Mot. at Ex. J].
In July and August 2017, the Connecticut Family Court held a hearing on
Kennedy’s December 2015 Motion to Modify and denied the motion. [Fairfield Mot.
at Ex. A, PDF p. 157–58].
Then in October 2017, Kennedy moved to Florida. [Fairfield Mot. at Ex. A,
PDF p. 159]. On November 8, 2017, during a scheduled hearing before the Family
Court, Kennedy failed to appear. [Fairfield Mot. at Ex. I, PDF p. 24–25]. Presiding
judge Wenzel, found (1) Kennedy had notice of the hearing and no evidence was
presented showing that his absence from the hearing was anything other than
entirely voluntary and calculated, and (2) Kennedy was in willful contempt of the
Court’s judgment. [Fairfield Mot. at Ex. I, PDF p. 24–25]. Judge Wenzel then
ordered the suspension of Kennedy’s visitation rights, authorizing Kennedy to only
supervised visits in the state of Connecticut and with permission from De AlmeidaKennedy or the GAL. [Id. at Ex. I, PDF p. 25]. Judge Wenzel further ordered that
“[s]hould Kennedy choose to seek modification of this order he must appear here
in the state of Connecticut at a properly scheduled time and place.” [Id. at Ex. I,
As of the November 8, 2017 family court hearing, Support Enforcement was
taking action against Kennedy to collect delinquent unallocated alimony and
support. [Fairfield Mot. at Ex. A, PDF p. 165]. On December 5, 2017, a capias was
issued for Kennedy’s arrest for failure to pay unallocated alimony and child
support. 6 [Fairfield Mot. at Ex. A, PDF p. 170]. Kennedy was not arrested on this
On May 7, 2018, De Almeida-Kennedy emailed Kennedy to inform him that
she and the children moved to Tennessee. [Fairfield Mot. at Ex. A, PDF p. 178–79].
The next day, on May 8, 2018, Kennedy—who still lived in Florida—filed an
emergency ex parte custody order, which was denied by the Court. [Fairfield Mot.
at Ex. A, PDF pp. 180, 183]. In late May 2018, De Almeida-Kennedy filed a motion
for order pertaining to the unpaid child support and alimony. [Fairfield Mot. at Ex.
A, PDF p. 184–85].
In late September and early October 2018, Kennedy moved back to Fairfield,
Connecticut. [Fairfield Mot. at Ex. A, PDF p. 186–87]. On October 23, 2018, Hirsch
informed the family court that Kennedy wanted the children to visit him in
Connecticut, but De Almeida-Kennedy refused. [Hirsch Mot. at Ex. P, PDF p.2].
Hirsch also informed the court that De Almeida-Kennedy offered to allow Kennedy
to visit the children in Tennessee, which he did not wish to consider at the time.
On November 7, 2018, De Almeida-Kennedy filed a motion to dismiss the
divorce proceeding raising the issue of jurisdiction under the Uniform Child
Kennedy argues without support that the capias was for his failure to appear.
[Opp. to Fairfield Mot. 56(a)2 at ¶ 36]. The citation he provides to support his claim;
[Opp. to Fairfield Mo. At Ex.15 at 1]; is to a screenshot of a text message does not
discuss or reference this capias, failure to appear, or arrearage.
Custody Jurisdiction and Enforcement Act (UCCJEA). 7 [Fairfield Mot. at Ex A, PDF
p. 192–93; Opp. to Fairfield Mot. at Ex. 16, PDF p. 2].
C. Ex Parte Order
On November 27, 2018, Kennedy filed a motion for an emergency ex parte
custody order (“Ex Parte Order”). [Fairfield Mot. at Ex. A, PDF p. 193; Ex. J].
Kennedy’s motion states shared joint legal custody with De Almeida-Kennedy of
the two children. [Fairfield Mot. at Ex. J, PDF p. 14]. It also represented that De
Almeida-Kennedy unilaterally withdrew the children from school sometime
between April 7, 2018 and June 22, 2018; De Almeida-Kennedy relocated to
Tennessee without notifying Kennedy, the GAL, or the court; De Almeida-Kennedy
unilaterally withdrew the children from all extracurricular activities, counseling,
and academic activity in Connecticut; and De Almeida-Kennedy unilaterally cut off
all communication and access to the minor children on November 8, 2017. [Fairfield
Mot. at Ex. J].
Kennedy concluded his motion by stating that he held
videoconferences with De Almeida-Kennedy and the children and is deeply
concerned with the minor children’s health, safety and welfare. [Id.]. Kennedy
signed the motion using his Connecticut Bar juris number. [Id.]. The Family Court
granted the motion that day, transferring temporary custody of the children to
[Id.]. The Family Court ordered De Almeida-Kennedy to return the
The UCCJEA generally provides the body of law for changing jurisdiction over
child custody orders where the child(ren) move out of the jurisdiction where the
custody order was originally entered. See Construction and Operation of Uniform
Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1 § 2 (2002).
children to Mr. Kennedy in Connecticut immediately and stated a hearing would be
scheduled AS SOON AS POSSIBLE. [Id.].
On November 28, 2018, De Almeida-Kennedy filed an ex parte custody
motion as well. [Fairfield Mot. at Ex. A, PDF p. 193–94; Ex. K]. De AlmeidaKennedy’s motion informed the family court that Kennedy’s representation that he
had joint custody was false, because the family court on November 8, 2018
suspended Kennedy’s visitation rights, authorizing only supervised visits with
permission of De Almeida-Kennedy. [Fairfield Mot. at Ex. K, PDF p. 1]. De AlmeidaKennedy argued that Kennedy voided the provisions of the separation agreement
that require prior notice before relocation when he relocated to Florida without
notification. [Id., PDF p. 2]. The motion goes on to state that Kennedy lied in is
motion because the children are enrolled in school in Tennessee and are doing
well. [Id.]. Further, the motion states that Kennedy lied because Hirsch was
notified of the relocation, who confirmed that the relocation was done properly and
the children were well taken care of. [Id.]. De Almeida-Kennedy also indicates that
Kennedy lied by filing the motion for custody under an emergency status because
no emergency existed, that the children were happy, well-adjusted, and doing well
in school since April. [Id.]. The family court docket report reports that this motion
was denied the same day it was filed. See De Almeida-Kennedy v. Kennedy, Conn.
Super. FBT-FA09-4030227-S, Dkt. 396.00. The reasons for the denial have not been
provided by either party and the Court is unable to access the Family Court’s
Hirsch stated that she received the November 27, 2018 Ex Parte Order the
day of or two days after it was issued and then reviewed the emergency ex parte
application. [Hirsch Mot. at Ex. K, PDF p.89]. She further stated Kennedy filed an
affidavit in support of his motion containing his juris number (signifying he was an
officer of the court) which contained “many misrepresentations, incomplete facts,
misleading facts. . . . [and contained] certain trigger language to make it appear as
an emergency situation was happening, even though the children had been living
in Tennessee at this point for [about] eight months.” [Id.]. Hirsch went to the
courthouse immediately and filed a written request for an emergency status
conference. [Hirsch Mot. at Ex. K, PDF p. 9]. The court scheduled a hearing for
December 11, 2018. [Id.].
On November 28, 2018, Kennedy flew to Tennessee in an attempt to obtain
custody of his children from De Almeida-Kennedy’s address, but he was
unsuccessful and returned to Connecticut. [Fairfield Mot. at Ex. A, PDF p. 199–
204]. At some point following the entry of the Ex Parte Order and November 30,
2018, Kennedy contacted the FPD seeking assistance in the enforcement of the Ex
Parte Order. [Fairfield Mot. at Ex. A, PDF p. 194–95]. On November 30, 2018,
Kennedy went to the FPD, where he met with Caruso. [Fairfield Mot, at Ex. A, PDF
p. 195]. It appears Caruso was expecting Kennedy’s visit. Kennedy provided
Caruso with an affidavit outlining several points and discussed the upcoming
hearing on his Ex Parte Order. [Fairfield Mot. at Ex. A, PDF p. 196]. Caruso
informed Kennedy that he spoke with De Almeida-Kennedy and was going to speak
with Attorney Hirsch. [Fairfield Mot. at Ex. A, PDF p. 198]. Kennedy stated at his
deposition that Caruso told him that he did not believe Kennedy would win a
hearing on his ex parte motion. [Fairfield Mot. at Ex. A, PDF p. 197].
On December 3, 2018, De Almeida-Kennedy went to pick up one of her sons
from school early when the school principal and local law enforcement informed
her that they received a copy of the Ex Parte Order and De Almeida-Kennedy was
not permitted to pick up her child. [Opp. to Fairfield Mot. at Ex. 8]. Sometime
thereafter, De Almeida-Kennedy reached out to Hirsch by text message, email,
phone calls, and voice messages relating to the Ex Parte Order. [Hirsch Mot. at Ex.
K, PDF p. 9]. Hirsch provided handwritten notes from December 3, 2018, when she
spoke with De Almeida-Kennedy. [Hirsch at Ex. L]. The notes indicate that De
Almeida-Kennedy was frantic and stated that Kennedy sent the court order to the
children’s schools and the youngest child’s school would not release the child to
De Almeida-Kennedy. [Id.]. The notes from this conversation provide that Hirsch
told De Almeida-Kennedy that she had “no authority or power to step in and [there
is] a hearing date [on] 12/11[/2018].” [Id.]. That day, De Almeida-Kennedy filed an
emergency motion to quash Kennedy’s Ex Parte Order. [Fairfield Mot. at Ex. A,
PDF p. 205].
Around this time, Caruso contacted Hirsch to determine if she was still the
GAL in the family court case and what her position was on the Ex Parte Order.
[Hirsch Mot. at Ex. K, PDF p. 10]. Hirsch told Caruso that she believed the ex parte
application was fraught with misleading, incomplete and inaccurate information,
and that she had already filed for a status conference for the Court to review the
order. [Id. at PDF p. 10–11].
D. Caruso Incident Report
Caruso drafted a report of his investigation dated December 4, 2018 and
signed December 5, 2018 (the “Incident Report”). [Fairfield Mot. at Ex. L].
report details Caruso’s involvement and perspective following Kennedy’s
November 30, 2018 visit to the FPD. [Id.]. The report was also signed by Hine. [Id.].
The Incident Report plays a key part in this case.
The incident report states Caruso met with Kennedy on November 30, 2018
and was given several documents referencing the family law case. [Id. at 1]. He
also indicates that Kennedy informed him that Kennedy went to Tennessee in an
effort to gain custody of his children but was unsuccessful. [Id.].
The Incident Report provided general information about the family law case
under the banner “Background Information relative to the Kennedy Family.” [Id. at
2]. In that section, Caruso states that in September 2009 De Almeida-Kennedy
reported that Kennedy “emptied her house of all belongings . . . leaving her with
no knowledge of the whereabouts of her children.” [Id.]. Then, Caruso states that
he then “tracked” Kennedy to Texas, “[a]n arrest warrant was obtained charging
Kennedy with Custodial Interference 1st degree[, and] he was subsequently
arrested by the Texas Authorities and held as a Fugitive of Justice.” [Id.].
The report then indicates that in August 2020, “Ms. [De Almeida-Kennedy]
was granted sole legal and physical custody of the children at that time.” [Id.].
Caruso also states that “[i]n 2013 Kennedy was granted Supervised visitation.”
[Id.]. Then Caruso outlined that the parties reached an agreement on joint legal
custody, but “[a]t some point [thereafter] Kennedy’s visitation was again restricted
to supervised visitation.” [Id. at 3].
The report further states that “[o]n May 8, 2018[,] Kennedy was living in
Florida when he filed an emergency order of custody in the State of Connecticut[,
which] was dismissed as neither party was living in the state at that time.” [Id.].
Further, Caruso states that “[o]n November 18, 2017, the Honorable Judge Wenzel
then granted the suspension of Kennedy’s supervised visitations[, and] [t]his order
is still in place today.” [Id.].
The Incident Report then reviews the allegations made in Kennedy’s
November 27, 2018 ex parte motion. First, Caruso states that Kennedy’s claim in
his motion that “he shares join[t] legal custody of the two minor children . . . is
inconsistent with the facts as set forth in the court order dated November 8, 2017.”
[Id. at 4]. Second, Caruso states that Kennedy’s claim that the children were
relocated from Connecticut to Tennessee without notifying him, omits the fact that
Kennedy moved from Connecticut to Florida in October of 2017. [Id.]. Third,
Caruso states that “Kennedy was arrested in August of 2009 because he cleared
out his house of all belongings while still married[,] . . . [h]e then fled Connecticut
with both minor children leaving Ms. [De Almeida-]Kennedy with no usable cell
phone, no vehicles and no idea where either of her two minor children were.” [Id.].
Fourth, Caruso indicates that Kennedy’s claim that he did not know De AlmeidaKennedy’s Tennessee address “is also inconsistent . . . as Ms. [De Almeida]Kennedy kept him updated[,] Kennedy did in fact have Ms. [De Almedia]Kennedy’s Tennessee address.” [Id.].
Caruso reported that “Kennedy’s own parents issued a strong written letter
denouncing his character and parenting skills.” [Id. at 5]. The report indicates that
Kennedy “has violated the court order as it pertains to support payments” and
Kennedy “voluntarily left the State of Connecticut in an effort to avoid those
payments.” [Id. at 7]. Further, Caruso states that Kennedy’s “disregard for the rule
of law is blatant in the false affidavit he presented to obtain custody.” [Id.]. Caruso
states that Kennedy “knows full well that as of November 8, 2017 he had lost his
supervised visitation with his children[, and] [t]hat was the last standing order of
the court.” [Id.].
Hirsch indicated that she sent the Incident Report to the children’s schools
in Tennessee and to Family Relations in Connecticut. [Hirsch Mot. At Ex. K, PDF
p. 11]. Hirsch stated during her deposition that she sent the Incident Report to the
Tennessee schools because she believed she had a duty to confer with the
schools. [Hirsch Mot. at Ex. K, PDF p. 95]. Hirsch stated that she reviewed the
contents of the Incident Report and agreed with the general scope and tenor.
[Hirsch Mot. at Ex. K, PDF p. 13].
On December 11, 2018, two weeks after the Ex Parte Order was entered,
Kennedy appeared before the family court. [Fairfield Mot. at Ex. A, PDF p. 207].
Hirsch was present and addressed the Family Court. [Hirsch Mot. at Ex. F]. Caruso
was also present. Hirsch informed the Family Court Caruso was present and that
he “issued a police report regarding his investigation as to the matter.” [Opp. to
Hirsch Mot. at Ex. 16, PDF p.3]. However, Caruso was never called upon to testify
or otherwise address the Family Court. [Fairfield Mot. at Ex. A, PDF p. 207–08]. The
Incident Report was not introduced or provided to the Family Court at this hearing.
[Id.]. At the conclusion of that hearing, the Family Court put all existing orders
regarding custody of the children in “abeyance.” [Hirsch Mot. at Ex. F at PDF p. 2].
At that time, Hirsch asked the Family Court if a transcript of his order could be sent
to the Tennessee schools because the children were held in protective custody,
and the court gave her permission. [Id.].
This suit was filed on February 22, 2019. [Compl, Dkt. 1].
Both Fairfield Defendants and Hirsch move for summary judgment on all
counts of the complaint.
Kennedy objects on all grounds.
Defendants and Hirsch filed separate motions and raise separate arguments as to
why they are entitled to summary judgment, the Court will consider the motions
together. This is because many of the arguments raised by both Defendants are
similar and invoke similar legal issues. As will be illustrated below, many of the
defects with the claims against one defendant are fatal as to all defendants.
The Court will first address the federal law claims raised under section 1983.
The federal law claims require consideration of whether each defendant is subject
to section 1983 as a person acting under color of law, and if so, whether that
defendant deprived Kennedy’s rights relating to the violations alleged, which
include: (1) stigma-plus defamation, (2) familial association, (3) retaliation, (4) equal
protection, (5) procedural due process, and (6) conspiracy. After addressing the
federal claims, the Court will address the state law claims. These claims include:
(1) invasion of privacy, (2) conspiracy to interfere with custodial relations, (3)
intentional infliction of emotional distress, (4) Personal Data Act violation, and (5)
A. Federal Law Claims
Kennedy brings several claims against Defendants under Title 42 of the
United States Code Section 1983, which provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
“In order to establish individual liability under § 1983, a plaintiff must show (a) that
the defendant is a “person” acting “under the color of state law,” and (b) that the
defendant caused the plaintiff to be deprived of a federal right.” Back v. Hastings
On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004).
Person Acting Under Color of Law
The Court will first consider whether a genuine issue of material fact exists
relating to the first element of a section 1983 claim—that defendant is a person
acting under the color of state law—against Defendants.
“The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority
of state law.’”
West v. Atkins, 487 U.S. 42, 49 (1988).
See also Gleason v.
Scoppetta, 566 Fed. Appx. 65, 68 (2d Cir. 2014). To constitute a state action, “the
deprivation must be caused by the exercise of some right or privilege created by
the State . . . or by a person for whom the State is responsible,” and “the party
charged with the deprivation must be a person who may fairly be said to be a state
actor.” West, 487 U.S. at 49.
Caruso and Hine
“[G]enerally, a public employee acts under color of state law while acting in
his official capacity or while exercising his responsibilities pursuant to state law.”
West, 487 U.S. at 49. Here, Caruso and Hine do not argue Kennedy cannot establish
they are persons acting under color of state law. Thus, Caruso and Hine have
abandoned any such claim. Regardless, it is quite clear that Caruso and Hine are
state actors because all of the alleged wrongful conduct on their part consist of
acts performed in their official roles as municipal law enforcement officers.
Therefore, the Court finds that Caruso and Hine are persons acting under state law
Only under prescribed circumstances are private citizens and entities
subject to section 1983 liability. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999). “A private entity acts under color of state law for purposes of [section]
1983 when ‘(1) the State compelled the conduct (the ‘compulsion test’), (2) there is
a sufficiently close nexus between the State and the private conduct (the ‘close
nexus test’ or ‘joint action test’), or (3) the private conduct consisted of activity that
has traditionally been the exclusive prerogative of the State (the ‘public function
test’).’” McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (citations
omitted); see Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531
U.S. 288, 296 (2001).
Guardian Ad Litem
The first issue is whether Hirsch is a “state actor” as contemplated under
section 1983 jurisprudence because she was appointed by a state judicial officer
to represent the children and a GAL. A guardian ad litem for minor children is not
a state actor because she is not charged with advancing the state’s interests. She
is charged with ascertaining and advocating for the custody, care, education,
visitation, and support which is in the best interest of the child. See In re Tayquon
H., 76 Conn. App. 693, 704 (2003) (“It is well established that the role of the guardian
ad litem is to speak on behalf of the best interest of the child.”). Like a public
defender, although her role is “supplied . . . by the state,” she “acts according to
the best interests of the client with ‘no obligation to the mission of the state.’” Milan
v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (quoting Meeker v. Kercher, 782 F.2d
153, 155 (10th Cir. 1986) (per curiam)); see Arena v. Dep't of Soc. Servs. of Nassau
Cty., 216 F. Supp. 2d 146, 155 (E.D.N.Y. 2002) (collecting district court cases stating
“guardians ad litem, although appointed by the court, exercise independent
professional judgment in the interests of the clients they represent and are
therefore not state actors for purposes of Section 1983.”). Here, Hirsch is a GAL
for the minor children.
Her challenged actions related to and were aimed at
effecting the custody of the Kennedy children, not state interest. There are no
allegations that she is otherwise an independent state actor. Therefore, the Court
finds that Hirsch is not a state actor simply because she is the GAL to the minor
children and she discharged her duty as such by intervening in a custody dispute
between the parents to provide the court with information germane to the custodial
best interests of the children.
Joint Action Doctrine
The next issue is whether Hirsch can be deemed a person acting under color
of state law under the joint action doctrine. Under the “joint action” doctrine, a
private actor may be found “to act ‘under color of’ state law for § 1983 purposes…
[if the private party] is a willful participant in joint action with the State or its
agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). A plaintiff complaining that the
actions of a nominally private entity violated her constitutional rights makes this
showing by demonstrating that “there is such a ‘close nexus between the State
and the challenged action’ that seemingly private behavior ‘may be fairly treated
as that of the State itself.’ Grogan v. Blooming Grove Volunteer Ambulance Corps,
768 F.3d 259, 264 (2d Cir. 2014) (quoting Brentwood Academy, 531 U.S. at 295
(2001)). “The touchstone of joint action is often a ‘plan, prearrangement,
conspiracy, custom or policy’ shared by the private actor and the police.” Forbes
v. City of New York, No. 05-CV-7331 (NRB), 2008 WL 3539936, at *5 (S.D.N.Y. Aug.
12, 2008) (citing Ginsberg v. Healty Car & Truck Leasing , Inc., 189 F.3d 268, 272
(2d Cir. 1999)) “A private actor can only be ‘a willful participant in joint activity with
the State or its agents’ if the two share some common goal to violate the plaintiff's
rights.” Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014).
“In order to establish ‘joint action,’ a plaintiff must show that ‘the private
citizen and the state official shared a common unlawful goal; the true state actor
and the jointly acting private party must agree to deprive the plaintiff of rights
guaranteed by federal law.’” Mercer v. Schriro, 337 F. Supp. 3d 109, 144 (D. Conn.
2018) (citing to Bang v. Utopia Restaurant, 923 F. Supp. 46, 49 (S.D.N.Y. 1996)).
Merely “requesting police assistance and providing information that led to police
action” does not constitute joint action for the purposes of a section 1983 claim.
Id. (citing to Ginsberg v. Healy Car & Trick Leasing, Inc., 189 F.3d 268, 272 (2d Cir.
Mercer provides a discussion about Spear v. West Hartford, 954 F.2d 63 (2d
Cir. 1992), where a newspaper editor brought suit against various town officials,
including the police department, and a local women’s health center after the town
brought, but later dropped a, suit against him under RICO. The suit was brought
by the town officials, not the health center. Id. at 64. The only joint conduct alleged
between the town officials and the health center was a meeting. Id at 68. More
importantly, nothing to the detriment of the plaintiff came following that meeting
because the charges against the plaintiff in the RICO action were dropped. The
Court found this was not enough to establish joint action and dismissed the § 1983
claims against the health center.
Id. at 68–69.
In Mercer, the court drew a
distinction between its case and the Spear case, because in Mercer the plaintiff
suffered a clear detriment immediately following a close-door meeting between the
defendant and the state officials. 337 F. Supp. 3d at 146.
Here, Hirsch argues no genuine dispute of material fact exists with respect
to her being a person acting under color of state law and points to an absence of
evidence to support the agreement element under the joint action doctrine.
Kennedy argues there is evidence to show conspiracy between Hirsch and Caruso
because he can show that Hirsch spoke with Caruso before the Incident Report
was drafted, she gave Caruso information, she told Caruso the Ex Parte Order was
invalid, she requested Caruso’s permission to send the Incident Report to the
Tennessee school officials, she asked Caruso to appear and present historical
evidence at the December 11, 2018 Family Court hearing, and Caruso appeared
upon Hirsch’s request.
Kennedy also claims that both Caruso and Hirsch
acknowledge the express purpose of this conduct was to prevent Kennedy from
enforcing the Ex Parte Order; however, Kennedy did not provide any citation to the
record to support this claim.
The Court finds Kennedy fails to prove the agreement element under the joint
action doctrine. The evidence Kennedy relies on in his opposition when viewed in
the light most favorable to Kennedy does not exhibit an agreement between Hirsch
and Caruso, let alone an agreement to deprive Kennedy of his federally protected
rights. At most, this evidence shows that Caruso investigated the circumstances
relating to Kennedy’s request for assistance from the FPD and in that investigation
he contacted the GAL for the children at the center of the investigation.
reasonable jury could infer a conspiratorial agreement based on Hirsch’s
cooperation with Caruso’s investigation. By conveying information to which she
was privy as the Kennedy children’s GAL, even if they contradicted those asserted
in the motion for the Ex Parte Order. Further she was discharging her duty to
advocate for the custody arrangement which she believed was in the best interest
of the Kennedy children. Arranging for the Incident Report to be released to the
Tennessee school officials to assist them in deciding whether to release the child
to Mrs. Kennedy was also within the purview of her duty to advocate for the best
custodial interests of the children. Arranging for Caruso to appear and testify at
the Family Court custody hearing also furthered her performance of her duty to
advise the court of and advocate before the court for the best custodial
arrangement for the children. None of Hirsh’s acts veer into the realm of police
There is nothing in the record to suggest that Caruso agreed with Hirsch to
testify falsely to negatively impact Kennedy’s custodial rights.
conspiratorial agreement based on this record would require rank speculation.
The fact that Caruso, a state actor, and Hirsh, a private actor, shared
information germane to their respective duties and relied upon one another to
perform their respective duties does not converge their individual goals into a
common goal. Their actions are not joint they are coincident or parallel.
Finally, the role performed by the GAL is not one traditionally played by the
state. The state through the presiding judge determines which parent will have
custody of the minor children. Judges are independent arbiters not investigators.
This is the very reason a GAL is appointed, to conduct an investigation and based
on the facts gathered, advise the court so that the court has objective information
upon which to make a fair and proper custody decision.
The Court finds no reasonable jury could find Hirsch was a person acting
under color of state law and grants Hirsch summary judgment on Kennedy’s
section 1983 claims. Nonetheless, the Court will still consider whether there is a
genuine dispute of fact material to the deprivation of the federal right element of
Kennedy’s 1983 claims against Hirsch.
Deprivation of Federal Right
Next, the Court will consider whether there is a genuine factual dispute that
any defendant caused the plaintiff to be deprived of a federal right as he claims.
Kennedy alleges the following claims: stigma-plus defamation, a violation of his
right of intimate association, a violation of his First Amendment right to be free of
unconstitutional retaliation, a violation of his rights under the Fourteenth
Amendment Equal Protection Clause, a violation of his right under the Fourteenth
Amendment Due Process Clause, and unlawful conspiracy. The Court addresses
each claim below in that order.
Kennedy raises section 1983 stigma-plus defamation claims against Caruso,
Hine, and Hirsch based on the publication of the Incident Report, which Kennedy
claims contains knowingly false statements. “To prevail on a “stigma plus” claim,
a plaintiff must show (1) the utterance of a statement “sufficiently derogatory to
injure his or her reputation, that is capable of being proved false, and that he or
she claims is false,” and (2) a material state-imposed burden or state-imposed
alteration of the plaintiff's status or rights.” Sadallah v. City of Utica, 383 F.3d 34,
38 (2d Cir. 2004). There is no requirement on courts reviewing stigma-plus claims
to analyze the first element—the “stigma” requirement—before the second
element—the “plus” requirement. See id. (finding the plaintiff failed to meet the
“plus” requirement without considering the “stigma” requirement).
With respect to the “plus” requirement, “[t]he state-imposed burden or
alteration of status must be in addition to the stigmatizing statement. Thus, even
where a plaintiff's allegations would be sufficient to demonstrate a governmentimposed stigma, such defamation is not, absent more, a deprivation of a liberty or
property interest protected by due process.” Id. (internal citations and quotation
marks omitted) (emphasis in original). “[D]eleterious effects [flowing] directly from
a sullied reputation,’ standing alone, do not constitute a ‘plus’ under the ‘stigma
plus’ doctrine.” Id. (citing to Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994)).
The Fairfield Defendants argue that Kennedy’s stigma-plus claim fails
because there were no false statements in the Incident Report as he claims.
[Fairfield Memo at 2–16]. In support, the Fairfield Defendants rely on Kennedy’s
deposition testimony where he identified the portions of the report he claimed were
false. [Fairfield Memo at 2 (citing to Fairfield Mot. at Ex. A, PDF p.40, 224)]. Fairfield
Defendants then systematically go through each section—totaling over 50
sections—of the Incident Report and argue that each statement is either true,
something Kennedy had no basis to dispute, immaterial to his claims, or Caruso’s
own opinion. [Fairfield Memo at 3].
Hirsch repeated many of the same claims relating to why the individual
claims cannot establish defamation. [Hirsch Memo at 21–30]. She also adds that,
even if the claims were factually false, Plaintiffs have presented no evidence
showing a material state-imposed burden or state-imposed alteration of plaintiff’s
status or rights. [Id. at 29–30]. Hirsch argues that the Family Court’s decision to
hold the Ex Parte Order in abeyance was not predicated on the statements
contained in the Incident Report because the Family Court did not see the Incident
Report until after the hold was put in place. Hirsch also argues that Plaintiffs have
failed to show that the Incident Report influenced the Tennessee school official’s
decision to release the children to their mother.
Kennedy objects—agreeing in part with Defendant’s that some of the
highlighted sections were based in technicality or are not material—arguing that
many of the statements in the Incident Report are false and defamatory. [Opp.
Memo to Fairfield Mot. at 5–15; Opp. Memo to Hirsch Mot. at 12–16]. Kennedy
argues that “Hirsch is aware of the statements Hirsch made to Judge Malone
indicating Defendant Caruso’s presen[ce], as well as the existence of the Incident
Report. . . Later, it was entered into evidence.” Kennedy also argue that there is a
genuine dispute as to whether Defendant’s actions resulted in the Family Court’s
decision. 8 [Opp. Memo to Hirsch Mot. at 16].
Kennedy inexplicably states “It is a genuine dispute of material fact whether
Defendant Hirsch’s actions resulted in Malone’s decision, let alone Judge Gould
being prevented from hearing it.” [Opp. Memo. to Hirsch Mot. at 16 (emphasis
added)]. Kennedy does not explain his reference to Judge Gould. The citation
provided by Kennedy merely shows that on December 11, 2018 before the Family
Court, the court asked if the matter was scheduled for a hearing before Judge
Wenzel, to which Hirsch said no. Hirsch then added “Judge Gould is conflicted out
because we have a personal history . . . .” [Opp. to Hirsch Mot. at Ex. 16 PDF p.4].
Kennedy does not provide anything further to explain why Hirsch’s conflict of
interest with Judge Gould is of any consequence to this action. Therefore, the
Court finds Kennedy have abandoned any claim with respect to any claim relating
to Judge Gould.
Here, Kennedy alleges that the state-imposed burden or alteration of rights
caused by the allegedly defamatory statements within the Incident Report is his
loss of custody of his children granted in the Ex Parte Order. As discussed in
greater detail above, the Ex Parte Order was signed by the Family Court on
November 27, 2018.
The next day, on November 28, 2018, Kennedy flew to
Tennessee in an attempt to obtain his children pursuant to the Ex Parte Order. He
was unsuccessful and returned to Connecticut that same day. Then on or around
December 3, 2018, Kennedy sent the Ex Parte Order to the Tennessee school’s
where his children were enrolled. One of the schools held one of his children who
was later released to the child’s mother after an unspecified period. On December
5, 2018, Caruso signed the Incident Report. Some point thereafter, Hirsch released
the Incident Report to a Tennessee school official.
Kennedy never obtained
custody of his children before the Incident Report was issued. Thus the Incident
Report did not alter Kennedy’s custodial rights.
Moreover, Kennedy does not allege, nor is there any evidence that, he tried
to obtain custody of his children after the Incident Report was written.
December 11, 2018, Kennedy appeared before the Family Court where Hirsch noted
Caruso’s presence, but Caruso did not submit his Incident Report or make
statements to the Family Court relating to the contents of the Incident Report. That
day the Family Court held the Ex Parte Order in abeyance due to the pending
(1) Family Court’s Decision
First, the Court will consider whether Kennedy has presented evidence
showing a genuine dispute of material fact on the “plus” element relating to the
Family Court’s decision to hold the Ex Parte Order. Velez v. Levy, 401 F.3d 75 (2d
Cir. 2005) is helpful in answering this question because it provides guidance in
“stigma-plus” cases where the party responsible for the “stigma” is not the party
who imposed the “plus.” In Velez, the plaintiff—an elected member of the school
board—alleged that political rivals on the board fabricated false allegations that the
plaintiff sprinkled suspicious, pink, powder-like substance in front of the office
door of the acting superintendent. Id. at 81–82. The board members then authored
a letter to the Chancellor of the school district—who had authority to remove the
plaintiff—requesting her removal.
She was ultimately removed by the
Chancellor of the school district relying on the allegations made by the board
members. Id. at 82–83. The Second Circuit found that the plaintiff sufficiently
alleged “stigma-plus” relying on the allegation that the board members imposed a
“stigma” and requested a “plus,” then the Chancellor adopted the “stigma” by
imposing the “plus.”
Id. at 90.
Velez teaches that a plaintiff must establish
causation between the false statement and the burden or alteration of status or
rights; i.e., the claims must be “sufficiently proximate.” Id. Sufficient proximity
can be found where “(1) the stigma and plus would, to a reasonable observer,
appear connected . . . and (2) the actor imposing the plus adopted (explicitly or
implicitly) those statements in doing so.” Id.
This case is unlike Velez, because in Velez the party who imposed the stateimposed burden knew of and then relied on the stigmatizing statements in
imposing the burden. Here, there is no connection between the Family Court’s
decision to hold the Ex Parte Order in abeyance and the Incident Report because
the Family Court did not know about the Incident Report and could not have relied
on the allegedly stigmatizing statements contained therein in holding the Ex Parte
Order in abeyance.
The Court rejects Kennedy’s argument that Caruso’s presence at the
December 11, 2018 hearing influenced the Family Court’s decision because
Caruso’s presence could not possibly be found to be defamatory or stigmatizing
as claimed. Caruso did not divulge the contents of the Incident Report and thus
the content of the report could not have been influential in the court’s decision.
There must be a causation between the stigma and the plus to be actionable under
In addition, Kennedy’s general claims that statements made by Hirsch to the
Family Court caused the further delay in adjudication of his custody claim fail for
two reasons. First, Kennedy has not presented any evidence suggesting what
statements Hirsch made or the circumstances relating to those statements.
Kennedy can not rely on unsupported allegations to establish a genuine dispute of
material fact. Second, assuming Hirsch did make statements to the Family Court
that impacted the adjudication of Kennedy’s custody dispute, those statements are
not actionable because, as explained in the decision on Hirsch’s motion to dismiss,
Hirsch is entitled to absolute immunity for statements made to the Family Court in
her role as the GAL. See [Dec. on Mot. to Dismiss at 11].
(b) Tennessee School Official’s Decision
Second, the Court will consider whether Kennedy has presented evidence
showing a genuine dispute of material fact on the “plus” element relating to the
Tennessee school official’s decision to release the children to their mother and not
Kennedy. Though little evidence has been presented relating to the hold of the
child, at the very least the record shows that Kennedy did not travel to Tennessee
any time after or while the Tennessee school was holding the child. Meaning,
Kennedy did not exercise his right to obtain his children from the school. This is
similar to Tucker v. Decker 683 Fed. Appx. 20 (2d Cir. 2017). In Tucker, a former
school superintendent sued a Vermont State Trooper who brought a citation
against her for failure to comply with Vermont’s mandatory reporter statute. Id. at
21–22. Following the citation, the former superintendent voluntarily resigned from
her position and there was a lack of evidence showing constructive dismissal. Id.
at 23. The Second Circuit affirmed the finding that the former superintendent failed
to show a material dispute of fact regarding the “plus” element because she
As in Tucker, Kennedy cannot establish the “plus”
element where he voluntarily abandoned his rights.
His rights under these
circumstances was his right to obtain his children from their school.
Further, there is an absence of evidence supporting a claim that the
Tennessee school officials relied on the Incident Report in releasing the child or
even that the officials had the Incident Report at the time they released the child.
Therefore, the Court grants Defendants summary judgment as to Kennedy’s
stigma-plus defamation claim because Kennedy has not presented evidence to
support the “plus” element of the claim.
Kennedy claims all Defendants violated his right to intimate/familial
association due to the alleged fabrication and dissemination of the Incident Report,
which he claims deprived him of the ability to associate with his children. “The
Fourteenth Amendment guarantees a substantive right under the Due Process
Clause to intimate familial association . . . .” Gorman v. Rensselaer Cty., 910 F.3d
40, 47 (2d Cir. 2018). “A claim for infringement of the right to familial association
requires conduct ‘so shocking, arbitrary, and egregious that the Due Process
Clause would not countenance it even were it accompanied by full procedural
protection.’” Id. “[A] claim under the Due Process Clause for infringement of the
right to familial associations requires the allegation that state action was
specifically intended to interfere with the family relationship.” Id. at 48. As stated
above, a plaintiff raising a section 1983 claim must show “that the defendant
caused the plaintiff to be deprived of a federal right.” Back, 365 F.3d at 122
Here, Fairfield Defendants argue that the Incident Report could not be found
to wrongfully interfere with Kennedy’s family relationship because the statements
contained therein were not defamatory, as they argued in addressing the stigmaplus defamation claim.
Hirsch argues (1) there is an absence of evidence that the
Incident Report caused Kennedy’s deprivation of custodial rights or ability to
obtain his children, (2) Kennedy did not have a custodial right during the pendency
of the Ex Parte Order because the Ex Parte Order was invalid ab initio, and (3) the
infringement de minimis because Kennedy only had arguable custodial rights for
a period of fourteen days on the temporary Ex Parte Order.
Kennedy argues that a genuine dispute of material fact remains as to
whether the Incident Report was defamatory. Kennedy does not challenge Hirsch’s
argument that the Incident Report cannot be found to have caused the deprivation
of familial association, but rather raises claims relating to statements Hirsch made
before the Family Court that he claims caused the indefinite delay of his custody
challenge. Kennedy further argues that the Ex Parte Order has not been found to
be invalid. Lastly, Kennedy argues that, if Caruso and Hirsch did not interfere with
Kennedy’s ability to obtain his children during the period the Ex Parte Order was
in effect, “perhaps a hearing would have been held.” [Opp. to Hirsch Mot. at 20].
The Court need not expend significant judicial resources to consider
whether the 50 plus highlighted statements in the Incident Report are defamatory
or not because there is no genuine dispute as to whether the Incident Report
caused the deprivation of his right to familial association. The analysis here is
similar to the analysis under the stigma-plus defamation claim. To briefly
summarize what has been found above, the Family Court decision to hold the Ex
Parte Order was not caused by the Incident Report because the Family Court did
not have the Incident Report before making that decision, nor did it know the
contents of the report.
Kennedy’s general claims that the Incident Report is
somehow involved in the further delay in adjudication of his custody claim is
unsupported by any factual evidence.
Therefore, the Court grants Defendants summary judgment for the
Defendants on Kennedy’s claims of interference with his right to familial
association because Kennedy has not presented any evidence that he was
deprived of his rights by Defendants’ actionable conduct.
Kennedy claims all Defendants violated his First Amendment right by
retaliating against him for seeking/attempting to enforce the Ex Parte Order and
were motivated by personal animus towards Kennedy. A plaintiff raising a First
Amendment retaliation claim must prove the following elements: “(1) he has an
interest protected by the First Amendment; (2) defendants' actions were motivated
or substantially caused by his exercise of that right; and (3) defendants' actions
effectively chilled the exercise of his First Amendment right.” Curley v. Village of
Suffern, 268 F.3d 65, 73 (2d Cir. 2001). “[R]etaliation cannot be established where
no adverse action has been alleged.” Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir.
2010) (finding that the strict enforcement of laws did not constitute adverse action).
“Specific proof of improper motivation is required in order for plaintiff to
survive summary judgment on a First Amendment retaliation claim.” Curley v. Vill.
of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
Fairfield Defendants and Hirsch point to an absence of evidence that Caruso
and Hirsch’s actions were motivated or substantially caused by Kennedy
exercising a First Amendment right. Hirsch states that she provided the Incident
Report to the Tennessee school officials, not out of personal or improper animus
for Kennedy, but because she believed it is part of her official duties as the
children’s GAL. [Hirsch Mot. at Ex. J (court order listing Hirsch’s GAL duties as
including: “confer[ing] with teachers and other school authorities.”)]. Hirsch also
argues that Kennedy has presented nothing other than bare assertions to support
his claim of personal animus.
Kennedy argues that during Hirsch’s deposition, she provided evidence that
she and Caruso were motivated by Kennedy’s exercise of speech. [Opp. to Fairfield
Mot. at Ex. 6, PDF p.95; Opp to Hirsch Mot. at 20 (citing to Hirsch 56(a)1 Statement
¶¶ 29, 37, 48, 59–61, 66–68)]. Kennedy also argues that there was no objective
purpose for Caruso’s actions because Caruso stated during his deposition “we
don’t investigate civil cases,” inferring a subjective purpose of punishing Kennedy.
[Opp. to Fairfield Mot. at Ex. 1, PDF p. 9].
Here, Kennedy has not presented evidence of improper motive. Kennedy’s
citation to the record does not support the proposition he claims it does. For
example, Kennedy cites to page 95 of Hirsch’s deposition and claims that it
provides proof Hirsch and Caruso’s conduct was motivated by his speech.
However, this is not what page 95 provides. On page 95, Kennedy asked Hirsch
why she sent the Incident Report to the Tennessee school officials. She said:
When I had spoken with principal Lifsey, this had had -- I think we
connected after you had already sent the ex partes to the schools and
they tried to hold the children in protective custody. They held the
youngest child in protective custody, refused to release him to mom.
The oldest child, I think, was released before the school got your fax.
And principal Lifsey was very concerned. He wanted me to keep him
updated in real time. So as a courtesy to the school so they wouldn't
have to submit their own request -- I mean, if they were in state, it
might be faster to obtain a copy of a public record, the police report.
But, being in Tennessee, they might have to go through some other
hoops, I don't know.
So since I have a duty to confer with the school anyhow, I thought it
would be easier if I was able to coordinate them obtaining that
[Opp. to Fairfield Mot. at Ex. 6, p.95]. Hirsch’s deposition testimony does not prove
Rather it tends to prove she sent the Incident Report because
communication with the children’s school officials was within her purview as
guardian al litem, the children’s school asked her to update them, and it was more
efficient for her to send it to them as they were out-of-state. This is not evidence
of animus by Hirsch and even less so evidence of animus by Caruso.
Kennedy’s citations to Hirsch’s 56(a)1 Statement also does not support the
proposition he claims. Nothing in these paragraphs suggest Hirsch harbored
animus towards Kennedy.
The Plaintiff has provided no specific evidence of
improper motivation other than his suspicion that such motivation existed.
Kennedy claims that Caruso harbored animus against him because he
conducted an investigation of a civil matter when he said the police department did
not. Kennedy initiated the investigation and ensuing Incident Report by asking
FPD to help him enforce the Ex Parte Order and possibly bringing criminal charges
against De Almeida-Kennedy. Caruso was not investigating a civil case, per se, he
was investigating Kennedy’s allegations that De Almeida-Kennedy was violating a
court order and committed child abduction.
The Court recognizes establishing a genuine dispute relating to improper
motivation is difficult on summary judgment, but some specific proof is required.
Curley, 268 F.3d 73. The evidence when viewed in the light most favorable to
Kennedy tends to show that Caruso drafted the Incident Report because Kennedy
involved the FPD and the Tennessee school officials in the child custody dispute;
and Hirsch sent the Incident Report because the school officials asked for an
update on Kennedy’s claim that he was granted custody of the Kennedy children.
No reasonable jury could find on this record that Caruso drafted the Incident Report
and Hirsh sent the report to the Tennessee officials because they harbored animus
against Kennedy. All these things flowed ineluctably from Kennedy’s own actions
and both Caruso and Hirsh acted reasonable within the scope of their duties in
reaction to Kennedy’s acts.
In satisfying the third prong, the plaintiff must show “either that his speech
has been adversely affected by the government retaliation or that he has suffered
some other concrete harm.” Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir.
2013) (emphasis in original).
Here, Fairfield Defendants point to an absence of evidence that Caruso and
Hine effectively chilled Kennedy’s exercise of his First Amendment rights.
Kennedy argues that his behavior changed due to the Incident Report because
Kennedy did not return to Tennessee to pick up his children. Kennedy also claims
that “[t]he change in behavior has had [a] long-term impact on plaintiff and his
family.” [Opp. to Fairfield Mot. at 21].
Kennedy does not allege that his speech was chilled, rather he alleges he
suffered a concrete harm. However, as detailed above, Kennedy has failed to
establish a causal connection between the drafting and publishing of the Incident
Report and alleged “concrete harm”—the impact on his rights to his children. His
conclusory allegation that he did not try to obtain his children after the Incident
Report does not explain why or how the Incident Report impacted his decision.
Regardless, no reasonable jury could find concrete harm under these facts.
The Second Circuit’s decision in Dorsett is instructive here. 732 F.3d 157. In
Dorsett, the plaintiff alleged that county legislators retaliated against him for his
political activities by refusing to put up to a vote his $8 million settlement reached
in a civil rights action that required the legislatures vote of approval. Id. at 159–60.
The Second Circuit found that the plaintiff could not show concrete harm because
the legislators were not required to approve the settlement by a date certain or
approve it at all. Id. at 161. In other words, uncertain prophecy is not sufficient to
establish concrete harm.
Like in Dorsett, Kennedy’s ability to obtain his children was uncertain and
cannot establish concrete harm under these facts.
Kennedy did not go to
Tennessee to obtain his children after Hirsch and Caruso became involved. There
is nothing to suggest that, had Kennedy went to Tennessee, he would have been
unsuccessful in obtaining his children because of Caruso and Hirsch’s actions.
Meaning, the alleged “harm”—that he was unable to obtain his children when he
had the right to do so—is uncertain. Kennedy did not have custody of his children
before he got the ex parte order and the order was temporary. There is nothing on
the record to suggest the order would have been made permanent.
contrary, the record suggests the order may have been obtained under false
pretenses and would have been vacated after the court heard both sides.
Therefore, the Court grants Defendants summary judgment on Kennedy’s
claim of retaliation in violation of the First Amendment because there is a lack of
evidence to support the motivation and effect elements.
Kennedy claims that all Defendants violated his rights under the Equal
Protection Clause, alleging that he was improperly singled out by Defendants’
conduct. “The Equal Protection Clause [of the Fourteenth Amendment] requires
that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc.
Vill. Of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). “Although the prototypical equal
protection claim involves discrimination against people based on their
membership in a vulnerable class, we have long recognized that the equal
protection guarantee also extends to individuals who allege no specific class
membership but are nonetheless subjected to invidious discrimination at the
hands of government officials.” Id.
Supreme Court “cases have recognized successful equal protection claims
brought by a ‘class of one,’ where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). In raising a class-of-one claim, a plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff
to differ from those of a comparator to a degree that would justify the
differential treatment on the basis of a legitimate government policy;
and (ii) the similarity in circumstances and difference in treatment are
sufficient to exclude the possibility that the defendants acted on the
basis of a mistake.
Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010). “[C]lassof-one plaintiffs must show an extremely high degree of similarity between
themselves and the persons to whom they compare themselves.” Ruston v. Town
Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010). The failure to present
evidence of a similarly situated comparator is grounds for denying summary
judgment on a class-of-one equal protection claim. Kusel, 626 F.3d at 143.
Here, all Defendants argue that Kennedy has not presented evidence of a
similarly situated comparator for the purpose of his equal protection claim.
Kennedy disagrees, arguing that the similarly situated comparator is De AlmeidaKennedy, whom he claims was treated much more fairly by Defendants than he
was. Kennedy focuses on the way De Almeida-Kennedy was treated when she
sought assistance from the FPD in 2009 compared to how Kennedy was treated
when he sought assistance in enforcing the Ex Parte Order. Kennedy also focuses
on things De Almeida-Kennedy did that Kennedy similarly did but Hirsch never
reported. For example, Kennedy claims that when Kennedy moved out of state and
sought visitation it was “outrageous,” but De Almeida-Kennedy was able to leave
the state without issue.
The Court finds that Kennedy has not shown the “extremely high degree of
similarity” between himself and De Almeida-Kennedy necessary for a class-of-one
equal protection claim.
Kennedy has not presented evidence relating to De
Almeida-Kennedy other than what can be found in the reports and descriptions by
the parties. However, from that evidence, a rational person could find that the
difference in treatment of Kennedy and De Almeida-Kennedy was based on
differing circumstances. Kennedy, unlike De Almeida-Kennedy, has a prior arrest
for custodial interference and risk of injury. Kennedy, unlike De Almeida-Kennedy,
has had and lost permanent visitation and custody of his children. Kennedy, unlike
De Almeida-Kennedy, submitted an application to a court of law that contained
material omissions. 9 While there are some similarities because both are parents
to the same children, parties in the same case, and seeking the same relief (sole
legal custody of the children), it cannot be said that they have the extremely high
similarity sufficient for a class-of-one claim.
Therefore, the Court grants Defendants summary judgment as to the equal
protection claims because Kennedy has failed to present evidence of a similarly
For example, Kennedy’s application would appear to the passive reader to
suggest that De Almeida-Kennedy removed the children from school all together
but it fails to say is that the children were enrolled in another school. Kennedy
knew the children were in school, evidenced by his knowledge on where to send
the Ex Parte Order, but failed to report that to the Family Court in his application.
This omission is material and likely would have been highly relevant to the court’s
determination on whether to grant his ex parte application. Also, Kennedy claimed
in his ex parte application that De Almeida-Kennedy relocated without notifying
Kennedy, the GAL, or the court. However, Kennedy admitted to receiving an email
from De Almeida-Kennedy telling him she moved at least six months before he filed
his application. In addition Hirsch and the Family Court were notified of De
Almeida-Kennedy’s move at least as early as October 2018 based on the Family
Court hearing transcripts where in Hirsch reported to the Court that De AlmeidaKennedy offered for Kennedy to visit the children in Tennessee, but Kennedy did
not wish to consider that at the time. Also, Kennedy’s application would appear to
claim that Kennedy had no ability to see his children, but he had visitation rights
and choose not to use them. Any reasonable court would find that Kennedy’s ex
parte application was at the very least misleading.
Due Process Clause
Kennedy raises a procedural due process claim against Caruso and Hirsch
alleging that the Incident Report deprived him of his custodial rights. The Court
need not engage in lengthy discussion of this claim because Kennedy has failed
to show a genuine dispute of material fact that Caruso or Hirsch’s conduct caused
the deprivation of his custodial rights. As stated above, the Family Court did not
have the Incident Report when it held the Ex Parte Order in abeyance and there is
no evidence suggesting that the further delay is at all attributable to the Incident
Report. Therefore, the Court grants Defendants summary judgment as to the due
process claims because Kennedy has failed to present evidence that the alleged
wrongful conduct deprived him of his custodial rights.
Kennedy raises a section 1983 conspiracy claim against Caruso and Hirsch
claiming that they conspired to create and publish the Incident Report in an attempt
to unconstitutionally deprive the Plaintiff of his right of intimate association. The
Court need not engage in lengthy discussion of this claim because “[a] plaintiff
raising a § 1983 claim must first establish a violation of a federal right”; Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995); and as found above, Kennedy
has failed to establish a violation of a federal right. Therefore, the Court grants
Defendants summary judgment on the section 1983 conspiracy claim because
Kennedy has failed to establish a violation of a federal right.
3. Monell Claim
Kennedy generally asserts a section 1983 Monnell claim against the Town of
Fairfield. Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). “In order to bring
a claim against a municipal defendant, a plaintiff must establish both a violation of
his constitutional rights and that the violation was motivated by a municipal
custom or policy.” Henry v. Cty. of Nassau, 444 F. Supp. 3d 437, 449 (E.D.N.Y. 2020)
(citing to Monell, 436 U.S. at 690–91)). As stated above, Kennedy failed to establish
a violation of a federally protected right, which is the first element of a Monell claim.
Therefore, the Court grants Defendants summary judgment on the Monell claims
because Kennedy has not established a violation of a federally protected right.
B. Common and State Law Claims
Kennedy raises five state and common law claims: (1) invasion of privacy
against Caruso, Hine, and Hirsch, (2) conspiracy to interfere with custodial
relations, (3) intentional infliction of emotional distress against Caruso, (4)
negligence-liability against the Town, and (5) negligence-indemnity against the
Town. The Court will address each claim in that order.
1. Invasion of Privacy
Kennedy raises a state law invasion of privacy under the false light theory
claim against Caruso, Hine, and Hirsch relating to the drafting and publication of
the Incident Report.
Connecticut follows the Second Restatement of Torts
definition of false light invasion of privacy, which requires a showing that: “(a) the
false light in which the other was placed would be highly offensive to a reasonable
person, and (b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would be
placed.” Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 131 (1982)
(citing to 3 Restatement (Second), Torts § 652E). See also Borg v. Cloutier, 200
Conn. App. 82, 109 (2020) (same). “The essence of a false light privacy claim is
that the matter published concerning the plaintiff (1) is not true . . . and (2) is such
a ‘major misrepresentation of his character, history, activities or beliefs that
serious offense may reasonably be expected to be taken by a reasonable man in
his position.’” Id. (internal citations omitted).
Here, Fairfield Defendants and Hirsch raise similar arguments that there is
an absence of evidence to support the falsity element of the false light claim. In
addition, Defendants argue that the report has not been communicated to the
public at large or so many people that it is substantially certain to become public
knowledge. Further, Hirsch points to an absence of evidence to satisfy the highly
objectionable element. Hirsch cites to evidence that the report of his 2009 arrest
could not be found highly objectionable considering Kennedy himself reported the
arrest in his ex parte application. [Fairfield Mot. at Ex. J, PDF p.5].
Kennedy argues that the Incident Report is false, and Caruso and Hirsch had
knowledge of its falsity when publicized. Kennedy argues that the Incident Report
was published, stating that it was provided to De Almeida-Kennedy, her counsel,
the Tennessee school officials, two non-family members, it was filed on the docket
in the Family Court case, and it is a public record controlled by the FPD. Lastly,
Kennedy argues that the Incident Report is highly objectionable because the
reference to the 2009 arrest should not be published anymore than the claims of
attorney misconduct that Hirsch overcame or other lawsuits Hine overcame.
To establish a false light claim, a plaintiff must show that the objectionable
material was publicized.
“The ‘publicity’ associated with invasion of privacy
‘means that the matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.’” Holmes v. Town of E. Lyme, 866 F. Supp. 2d
108, 131 (D. Conn. 2012). “Publicity is a communication that reaches, or is sure to
reach, the public at large.” Id. at 132. The Second Restatement of Torts section
652D illustrates the type of publicity generally required under this rule as “any
publication in a newspaper or a magazine, even of small circulation, or in a handbill
distribution to a large number of persons, or any broadcast over the radio, or
statement made in an address to a large audience, . . .”
Here, the Court need not engage in the lengthy and unnecessary process of
analyzing whether the 50+ statements Kennedy highlighted in the Incident Report
as being false are indeed false because Kennedy has not presented evidence that
a reasonable jury would find in his favor on the publicity element of the false light
claim. Kennedy has presented no evidence relating to the two non-family members
he claims received a copy of the Incident Report. Similarly, Kennedy has presented
no evidence that the Incident Report was filed with the Superior Court other than
his claim that it was. While the Court would ordinarily check the Family Court
docket, it cannot do so here because the filings in the Family Court cases are not
accessible to the public online. See De Almeida-Kennedy v. Kennedy, FBT-FA094030227S. Finally, Kennedy has presented no evidence that the Incident Report is
publicly available because it is a police report.
See Doe v. Hartnett, No.
CV960134840, 2002 WL 1293354, at *4 (Conn. Super. Ct. May 8, 2002) (rejecting the
plaintiff’s publicity argument based on the police report being a public record
where she failed to show it was a public record).
Even if Kennedy showed that the Incident Report is public because it is a
police report, the mere fact that the police report is publicly available and could be
disseminated is not enough to satisfy the publicity requirement under Connecticut
law. See Gullong v. Nurmi, No. CV156013784, 2016 WL 7165014 (Conn. Super. Ct.
Nov. 8, 2016) (finding the plaintiff failed to establish publicity of a police report
subject to public access); Ridgefield Waterside Motors, LLC v. Borg, No.
CV165015844S, 2017 WL 3332744, at *5 (Conn. Super. Ct. June 30, 2017) (finding
plaintiff did not allege facts as to how false information in a police report was
Therefore, the Court grants Defendants summary judgment on the invasion
of privacy claim because Kennedy has failed to present evidence that a reasonable
jury could rely upon to find he satisfied the publicity element of his claim.
2. Conspiracy to Interfere with Custodial Relations
Kennedy raises a state law claim of conspiracy to interfere with custodial
relations against Hirsch and Caruso, generally alleging that they conspired to
interfere with his parental rights under the Ex Parte Order. Under Connecticut law,
“[t]he [elements] of a civil action for conspiracy are: (1) a combination between two
or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal
or unlawful means, (3) an act done by one or more of the conspirators pursuant to
the scheme and in furtherance of the object, (4) which act results in damage to the
plaintiff.” Macomber v. Travelers Prop. & Cas. Corp., 277 Conn. 617, 635–36 (2006).
There is, however, “no independent claim of civil conspiracy. Rather, [t]he action
is for damages caused by acts committed pursuant to a formed conspiracy rather
than by the conspiracy itself. . . .Thus, to state a cause of action, a claim of civil
conspiracy must be joined with an allegation of a substantive tort.” Id.
Connecticut follows the Second Restatement of Torts definition of custodial
interference which provides: ‘One who, with knowledge that the parent does not
consent, abducts or otherwise compels or induces a minor child to leave a parent
legally entitled to its custody or not to return to the parent after it has been left him,
is subject to liability to the parent.” Marshak v. Marshak, 226 Conn. 652, 665–66,
663 (1993), overruled on other grounds by State v. Vakilzaden, 251 Conn. 656 (1999)
(citing to Restatement (Second) of Torts (1977) § 700). “In order to impose liability
on a third party for conspiring with or aiding another in the removal of children
from the custodial parent, the third party must have conspired with, or aided the
other, ‘to do a criminal or an unlawful act or a lawful act by criminal or unlawful
means.’” Id. at 665–66.
Here, Fairfield Defendants argue that Caruso’s conduct did not have an
impact on the Superior Court’s decision to stay the Ex Parte Order, that Kennedy
has presented no evidence of the underlying tortious conduct alleged, Kennedy’s
Ex Parte Order was invalid at its inception, there is no evidence of a scheme, and
Caruso is entitled to governmental immunity. Hirsch, similar to her arguments
under the section 1983 conspiracy claim, points to an absence of evidence to
support the agreement element for a civil conspiracy claim. Hirsch also points to
an absence of evidence to support the underlying tort element because there is no
evidence she or Caruso abducted or otherwise compelled or induced the minor
children not to return to Kennedy.
Kennedy argues that Caruso’s conduct did influence the Family Court’s
decision because he was present at the December 11, 2018 hearing, Caruso and
Hirsch induced the children not to return to Kennedy, and there is no evidence the
Ex Parte Order was invalid.
As found above, Kennedy has failed to present evidence on which a
reasonable jury could find in his favor with respect to any conspiratorial agreement
between Hirsch and Caruso. See Part III.A.1. In addition, Kennedy has failed to
present evidence on which a reasonable jury could find in his favor with respect to
the substantive tort element of his claim because there is a lack of evidence
showing custodial interference by any Defendant here.
Kennedy’s claim that
Caruso and Hirsch induced the children not to return to Kennedy is unsupported
by the record. Though Kennedy cites to the December 3, Tennessee Incident
Report, that report by no means states that Caruso and Hirsch induced the children
not to return to Kennedy. There is no evidence in the record to suggest that Caruso
or Hirsch spoke with the minor children during the two week period Kennedy had
temporary custody of them, none the less evidence to suggest that they abducted,
compelled, or induced the minor children not to return to Kennedy. Any claim that
Hirsch or Caruso conspired with De Almeida-Kennedy to not return the children to
Kennedy is unsupported by evidence.
Therefore, the Court grants Defendants summary judgment on the
conspiracy to interfere with custodial rights claims because Kennedy has failed to
establish a genuine dispute of material fact with respect to the conspiracy and
substantive tort elements of such claim.
3. Intentional Infliction of Emotional Distress
Kennedy and Besa Kennedy raise a state law claim of intentional infliction
of emotional distress against Caruso because he entered their home after Besa
Kennedy granted him permission. Kennedy and Besa Kennedy have abandoned
this claim because they cited no credible supporting evidence in their 56(a)2
statement. The only citations supporting this claim are statements that Caruso
was agitated at his deposition. The Court has no facts upon which it can consider
whether Kennedy meets the elements of an intentional infliction of emotional
distress claim because the Court does not have any facts relating to the claim.
Therefore, the Court grants Defendants summary judgment on the
intentional infliction of emotional distress claim because Plaintiffs have cited to no
evidence relating to the conduct making up the claim.
4. Personal Data Act
Kennedy alleges that the Town is liable for violating the Personal Data Act
and seeks damages pursuant to Connecticut General Statute § 4-197. Section 4197 makes actionable the violation of any provision of the Personal Data Act. The
complaint does not cite to what section of the Personal Data Act the Plaintiffs claim
a violation of. The only section of the Personal Data Act that the Plaintiffs cite to
in their briefing is under § 4-193, which provides that:
Each agency shall: (a) Inform each of its employees who operates or
maintains a personal data system or who has access to personal data,
of the provisions of (1) this chapter, (2) the agency's regulations
adopted pursuant to section 4-196, (3) the Freedom of Information Act,
as defined in section 1-200, and (4) any other state or federal statute
or regulation concerning maintenance or disclosure of personal data
kept by the agency; . . .
(h) Establish procedures which: (1) Allow a person to contest the
accuracy, completeness or relevancy of his personal data; (2) Allow
personal data to be corrected upon request of a person when the
agency concurs in the proposed correction; (3) Allow a person who
believes that the agency maintains inaccurate or incomplete personal
data concerning him to add a statement to the record setting forth
what he believes to be an accurate or complete version of that
personal data. Such a statement shall become a permanent part of the
agency's personal data system, and shall be disclosed to any
individual, agency or organization to which the disputed personal data
Here, Fairfield Defendants argue that the Personal Data Act does not apply.
Kennedy claims that it does but he does not indicate with any degree of specificity
what section of the Personal Data Act the Town violated. He states generally that
he had no effective remedy to correct the record due to the way it was distributed.
However, Kennedy cites to nothing in the record to support his argument that the
Personal Data Act does apply, let alone anything that would indicate that he tried
to contest the accuracy of the Incident Report and was otherwise prohibited from
doing so. Thus, Kennedy has not presented any genuine dispute of material fact
relating to the Personal Data Act claim.
The Court grants Defendants summary judgment on the Personal Data Act
claim because Kennedy fails to articulate what claim he is raising or what evidence
he has to support such a claim.
5. Negligence Claims
Kennedy raises negligence claims against the Town of Fairfield only. In
raising these claims, Kennedy limits them to impose liability on the Town for the
alleged torts committed by Caruso and Hine. Because the Court does not find that
Caruso or Hine committed a tort, there is no liability on the Town. Therefore, the
Court grants Defendants summary judgment on the negligence and negligence per
se counts because Kennedy has not established that Caruso and Hine committed
a wrongful act that would result in civil liability.
For the foregoing reasons, Defendants’ Motions for Summary Judgement are
GRANTED. The Clerk is directed to close this case.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated this day in Hartford, Connecticut: November 19, 2021
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