KARI A. DOOLEY, District Judge.
This case arises out of the arrest of the pro se plaintiff, Virginia Silano, (the "Plaintiff" or "Silano") on November 23, 2011 for harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183(a). Silano was arrested by defendant Detective Kevin Hammel (the "Defendant" or "Hammel"), formerly, of the Trumbull Police Department. The operative complaint asserts a claim for malicious prosecution based on the federal constitution and Connecticut common law. Pending before the Court is the Defendant's motion for summary judgment. For the reasons stated herein, the motion for summary judgment is GRANTED.
The situation leading to the Plaintiff's arrest began with a dispute between Silano and her neighbor George Cooney ("Cooney"). During the relevant time period, Silano and Cooney were members of a private recreational community managed and maintained by the Pinewood Lake Association ("PLA") through a Board of Governors, of which Cooney was the president. (Def.'s SMF at ¶ 3.) At this time, Cooney also worked for Hemlock Manor, LLC ("Hemlock Manor"),
In 2010, Silano alleges that she complained to Cooney about the sale of "unredeemable" Pepsi products on PLA grounds. (Plf.'s SMF at ¶ 5.) Thereafter, Silano contacted the Connecticut Department of Environmental Protection concerning this issue. (Def.'s Ex. A at 70:2-8; Def.'s Ex. B at 190:6-9.) In December 2010, Silano further contacted Pepsi's corporate offices in Waterbury to complain about dirty and expired Pepsi products being sold in Connecticut. (Rev. Compl. at ¶ 6; Def.'s SMF at ¶ 11; Def.'s Ex. A at 69:1-9.) The Plaintiff was referred to the legal department of Pepsi in New York, which in turn referred her to Pepsi-Cola Bottling Company of New York ("Pepsi Bottling Company"). (Def.'s SMF at ¶ 11; see Def.'s Ex. A at 69:20-70:1.) In early January 2011, Silano again contacted Pepsi Bottling Company and reported that Cooney was reselling Pepsi through the PLA without authorization. (Rev. Compl. at ¶ 7; see Def.'s SMF at ¶ 11; Plf.'s Ex. 1 at ¶¶ 4, 7, 8.) Silano alleges that Cooney subsequently contacted the Trumbull Police Department concerning her complaints to Pepsi, and Hammel contacted Silano in response to that complaint in January 2011. (Rev. Compl. at ¶ 8; Plf.'s SMF at ¶ 13; Plf.'s Ex. 1 at ¶ 8.) At that time, Silano alleges that she confirmed to Hammel that she had complained to Pepsi about Cooney's sale of expired Pepsi. (Id.)
In early 2011, Silano was arrested for, inter alia, an incident in which she allegedly pointed a firearm at another member of the PLA Board of Governors.
In early June 2011, Silano contacted Pepsi again to complain about Cooney's alleged distribution of dirty and expired Pepsi in Connecticut. (Def.'s SMF at ¶¶ 14, 17.) On or about June 9, 2011, Cooney submitted a written complaint against Silano to Hammel. (Id. at ¶ 7; Def.'s Ex. E.) In that statement, Cooney provided background information concerning the relationship between himself, Silano, and the PLA. (Def.'s Ex. E.) Cooney explained that he had learned that Silano was contacting the corporate offices of Pepsi and its affiliates and making negative remarks about him. (Id.) Cooney felt that Silano's actions were in retaliation for her recent resignation from the PLA and were designed to intimidate him and the Board of Governor's with respect to the on-going proceedings concerning her husband. (Id.) Hammel noted that the matter appeared to be civil in nature but informed Cooney that he should file an additional report if the complaints by Silano continued. (Def.'s Ex. C at 1.)
Around this time, Silano claims that Pepsi contacted her concerning Cooney. (Plf.'s Supp. Aff., ECF 65, at ¶ 7.) Because she was no longer a member of the PLA, Silano claims that she referred Pepsi to Michele Kingsbury, her long-time neighbor and the plan governor for the PLA.
On August 5, 2011, Cooney submitted a sworn statement to Hammel. (Def.'s SMF at ¶ 12; Def.'s Ex. C.) In that statement, Cooney again provided background information concerning his relationship with Silano, including the fact that he was a witness to the pending firearm case against Silano. (Def.'s Ex. C at 1.) Cooney also explained that he had recently learned that Silano had again contacted Pepsi Bottling Company on July 28, 2011 and once again made negative and false allegations against him. (Id.) Cooney asserted that Silano's conduct "serve[s] no legitimate purpose other than to repeatedly annoy and alarm myself and my business associates." (Id. at 2) Cooney advised that Pepsi had threatened to cancel his contract with it due to Silano's conduct, which would result in a significant loss of revenue for his company, contractors, and family. (Id.)
To investigate this complaint, Hammel contacted Silano; (Plf.'s Ex. 1 at ¶ 11); and Marc Aliberti, a business associate of Cooney and Pepsi Bottling Company; (Def.'s SMF at ¶ 18; Def.'s Ex. F at ¶ 3; Def.'s Ex. F-1). On August 8, 2011, Hammel interviewed Silano, who denied contacting Pepsi on July 28, 2011. (Plf.'s Ex. 1 at ¶ 11.C.) Hammel contacted Aliberti in September or October 2011 concerning Cooney's complaint. (Def.'s Ex. F at ¶ 3.) On October 2, 2011, Aliberti submitted a written statement concerning the events in question.
On October 19, 2011 and October 25, 2011, Hammel contacted Silano's attorney to arrange for another interview with her, but to no avail. (Def.'s SMF at ¶¶ 27-29; Def.'s Ex. B at 4.) On November 3, 2011, Hammel applied for an arrest warrant for Silano charging her with harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183. (Def.'s Ex. B.) The warrant application was reviewed and approved by a prosecutor on November 9, 2011 and by a superior court judge on November 22, 2011. (Id. at 4; Def.'s SMF at ¶ 31.) On November 23, 2011, Silano turned herself in to the Trumbull Police Department for arrest. (Def.'s SMF at ¶ 32.)
During the pendency of her criminal prosecution, Silano, through counsel, informed the state that her complaints to Pepsi were merely consumer complaints. (Rev. Compl. at ¶ 12.) She further informed the state that she did not initiate any contact with Pepsi in July 2011 but rather referred a call from Pepsi to Kingsbury. (Id.) In August 2012, Kingsbury met with Hammel to discuss the pending harassment charge against Silano. (Plf.'s SMF at ¶ 26; Plf.'s Ex. 11 at ¶¶ 2-3, 6.) Kingsbury stated that she spoke with Pepsi twice concerning Cooney after Silano referred Pepsi to her. (Plf.'s SMF at ¶ 26; Plf.'s Ex. 11 at ¶¶ 4, 6.) Kingsbury also related the content of her conversations with Pepsi to Hammel. (Id.) The Plaintiff contends that Hammel did not thereafter attempt to amend his arrest warrant affidavit or bring an end to her harassment prosecution.
Many months later, on October 18, 2013, a hearing was held in Silano's harassment case. (Def.'s SMF at ¶ 34; Def.'s Ex. H.) At that hearing, the state indicated that it planned to enter a nolle prosequi
(Id. at 2:27-4:2 (footnote added).) After Silano stipulated to the existence of probable cause, the court granted her motion to dismiss. (Id. at 4:3-4.)
Nine months later, on July 21, 2014, Silano filed a complaint against Cooney and Hemlock Manor. Silano v. Cooney, et al., No. FBT-cv-14-6045374-S. The operative complaint in that action contained counts for malicious prosecution, libel per se, and slander per se. Silano v. Cooney, et al., No. FBT-cv-14-6045374-S, 2017 WL 1194322, at *1 (Conn. Super. Ct. Feb. 22, 2017). After a bench trial, the court rendered judgment in favor of the defendants on all counts.
On December 14, 2016, the Plaintiff initiated the instant action against Hammel, Cooney, and others in the superior court of Connecticut. Silano v. Hammel, et al., No. FBT-cv-16-6061161-S. She subsequently withdrew her claims against all defendants except Hammel. Id., Entry Nos. 194.00, 198.00. She also filed what is now the operative complaint in this matter, alleging malicious prosecution, in violation of the federal constitution and state common law. Id., Entry No. 197.00. The Defendant thereafter immediately removed the case to federal court. Id., Entry Nos. 199.00, 199.10; ECF No. 1. On August 20, 2018, the Defendant moved for summary judgment on all claims arising out of the purported malicious prosecution. Alternatively, with respect to the constitutional claim, the Defendant argues that he is entitled to qualified immunity.
The standard under which the Court reviews motions for summary judgment is well-established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Significantly, the inquiry being conducted by the court when reviewing of a motion for summary judgment focuses on "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
As a result, moving party satisfies his burden under Rule 56 "by showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case" at trial. PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks omitted). Once the movant meets his burden, the nonmoving party must set forth "`specific facts' demonstrating that there is `a genuine issue for trial.'" Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). "[T]he party opposing summary judgment may not merely rest on the allegations or denials of his pleading" to establish the existence of a disputed fact. Id. Accord Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.
The Plaintiff alleges that her arrest on the charge of harassment in the second degree amounted to malicious prosecution and a violation of her Fourth Amendment rights under the United States Constitution.
The Defendant argues that there is no genuine issue of material fact that he had probable cause for the Plaintiff's arrest. As such, he argues that he is entitled to judgment as a matter of law. Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) ("continuing probable cause is a complete defense to a constitutional claim of malicious prosecution"); D'Angelo v. Kirschner, 288 Fed. Appx. 724, 726 (2d Cir. 2008) (summary order) (same); Brooks v. Sweeney, 299 Conn. 196, 211 (2010) ("The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law."). The Defendant's primary argument is that the Plaintiff previously stipulated to the existence of probable cause in order to obtain a dismissal of that charge in her criminal case and therefore she cannot now challenge the existence of probable cause in this forum.
Judicial estoppel "prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by [that party] in a prior legal proceeding." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015). Judicial estoppel applies where (i) "the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding"; (ii) "that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment"; and (iii) the court determines that "the particular factual circumstances of the case `tip the balance of equities in favor'" of precluding the claim or defense. Clark v. All Acquisition, LLC, 886 F.3d 261, 266-267 (2d Cir. 2018) (internal quotation marks omitted). The purpose of the judicial estoppel doctrine "is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 743 (2001). See also Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999) ("The purposes of the doctrine are to `preserve the sanctity of the oath' and to `protect judicial integrity by avoiding the risk of inconsistent results in two proceedings.'").
On October 18, 2013, the state was prepared to enter a nolle prosequi on the charge of harassment in the second degree, but the Plaintiff wanted the harassment charge dismissed. In order to obtain that dismissal, the Plaintiff stipulated to the existence of probable cause for her arrest. Indeed, her acknowledgement was unequivocal. While she asserted that the police had been lied to, a claim which is consistent with her subsequent lawsuit against Cooney, she recognized that the lies (had they been true) established probable cause for her arrest. Through this malicious prosecution action, the Plaintiff now attempts to challenge the existence of probable cause for her arrest. This is not a novel gambit, and it is one that courts in this district have previously rejected. E.g., Mpala v. Funaro, No. 3:13-cv-00252 (SALM), 2015 WL 7312427, at *6 (D. Conn. Nov. 19, 2015) (holding that defense counsel's stipulation to probable cause to obtain dismissal sought by client was binding on client in subsequent false arrest and malicious prosecution suit), aff'd sub nom. Impala v. Funaro, 675 Fed. Appx. 82, 84 (2d Cir. 2017) (summary order); Simonetti v. City of Bridgeport, No. 3:04-cv-01732 (JCH), 2006 WL 3098764, at *5 (D. Conn. Oct. 31, 2006) ("[T]he court believes that Simonetti's `deal' with the state disallows his attempt to `have his cake and eat it, too.' He cannot now say there was no probable cause when he earlier, to obtain a benefit, agreed that there was." [citation omitted]), aff'd, 277 Fed. Appx. 53, 53 (2d Cir. 2008) (summary order). See Roesch v. Otarola, 980 F.2d 850, 853 (2d Cir. 1992) ("A person who thinks there is not even probable cause to believe he committed the crime with which he is charged must pursue the criminal case to an acquittal or an unqualified dismissal, or else waive his section 1983 claim.").
The Plaintiff argues that she should not be bound by her earlier stipulation because she was unaware of Kingsbury's statement to Hammel at the time she stipulated to the existence of probable cause. From an equitable standpoint, the Plaintiff maintains that this is significant because Kingsbury's statement vitiated the existence of probable cause. The Plaintiff's argument is fatally flawed. Whether or not she knew that Kingsbury had spoken to Hammel, it is undisputed that she knew about Kingsbury's conversations with Pepsi at the time of her stipulation and that she, through counsel, had even told the state that she referred Pepsi to Kingsbury in July 2011. Consequently, to the extent Kingsbury's evidence is considered exculpatory, the Plaintiff was aware of it's existence prior to stipulating to probable cause. The Plaintiff could have, but did not, use this purportedly exculpatory information to defend against the harassment charge or to seek an unqualified dismissal of the information. Accordingly, the fact that Kingsbury might have reported her conversations with Pepsi to Hammel does not tip the balance of equities in her favor, and judicial estoppel forecloses her claim that the Defendant lacked probable cause. Because lack of probable cause is an essential element of a claim for malicious prosecution, summary judgement in favor of the Defendant is proper.
In light of the determination that the Plaintiff's stipulation to probable cause is binding upon her, this Court need not make a separate finding as to whether there is a genuine issue of material fact as to whether probable cause existed for her arrest. Nonetheless, a review of the parties' submissions demonstrates that no such genuine issue exists.
The Plaintiff was charged with harassment in the second degree. "A person is guilty of harassment in the second degree when . . . with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm." Conn. Gen. Stat. § 53a-183(a)(3). At the time of Silano's prosecution, a prosecution for harassment had to be based on harassing or alarming conduct. See State v. Moulton, 310 Conn. 337, 342 (2013). The Plaintiff contends that there are issues of fact concerning whether probable cause existed to arrest her for this offense.
"Probable cause is a mixed question of law and fact. Questions of historical fact regarding the officers' knowledge at the time of arrest are to be resolved by the jury. However, where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court." Dufort v. City of New York, 874 F.3d 338, 348 (2d Cir. 2017) (citations omitted; internal quotation marks omitted).
Probable cause "exists when the officers have knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Probable cause is to be assessed on an objective basis. Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. An arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." Zellner v. Summerlin, 494 F.3d 344, 368-69 (2d Cir. 2007) (alteration omitted; citations omitted; emphasis omitted; internal quotation marks omitted).
When an arrest is made pursuant to a warrant issued by a neutral magistrate, probable cause is presumed. Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007) ("Ordinarily, an arrest or search pursuant to a warrant issue by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause."). To overcome this presumption, a plaintiff must show that "the officer submitting the probable cause affidavit `knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit' or omitted material information, and that such false or omitted information was `necessary to the finding of probable cause.'" Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993) (quoting Golino v. City of New Haven, 950 F.2d 864, 870-71 (2d Cir. 1991)). "In determining whether omitted information was necessary to the finding of probable cause, we look to the hypothetical contents of a `corrected' application to determine whether a proper warrant application, based on existing facts known to the applicant, would still have been sufficient to support arguable probable cause to make the arrest as a matter of law." McColley v. Cty. of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014) (internal quotation marks omitted).
Here, the Plaintiff asserts that her statements to the Defendant were wrongly omitted from the arrest warrant application and that, had those statements been included, they would have precluded a finding of probable cause.
Nor is it inherently improper for an officer to omit a suspect's protestations of innocence from an arrest warrant application. As one court within this Circuit has aptly explained:
Carson v. Lewis, 35 F.Supp.2d 250, 260 (E.D.N.Y. 1999) (citations omitted; internal quotation marks omitted). Accord Richards v. City of New York, No. 97-cv-07990 (MBM), 2003 WL 21036365, at *16 (S.D.N.Y. May 7, 2003). See also Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir.1997) ("Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."); Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) ("It would be unreasonable and impractical to require that every innocent explanation for activity that suggests criminal behavior be proved wrong, or even contradicted, before an arrest warrant could be issued with impunity.").
To be sure, "the police may not purposely withhold or ignore exculpatory evidence that, if taken into account, would void probable cause." Richards, 2003 WL 21036365, at *16. In this case, however, Cooney's statement to the police about Silano's allegedly harassing and annoying conduct, as corroborated by Aliberti, plainly established probable cause to believe that Silano placed calls to Pepsi with the intent to harass, annoy, or alarm Cooney and in a manner likely to cause annoyance or alarm. Silano's protestations of innocence, by themselves, do not void this probable cause.
Finally, the Plaintiff contends that Kingsbury's statement to Hammel, coming after her arrest, undermined the existence of probable cause for her continued prosecution. Specifically, the Plaintiff argues that Kingsbury's statement corroborated her assertion that she had a proper basis for calling Pepsi to complain about Cooney and, therefore, did not act with the necessary intent to harass. The Court does not agree that Kingsbury's statement eliminated probable cause. Kingsbury knew nothing of the phone call Silano allegedly made to Pepsi on July 28, 2011, the very call that prompted Cooney to file the sworn statement in which he accused Silano of harassment. Nor did Kingsbury purport to know Silano's intent in making any other call to Pepsi in 2010 or 2011. At most, Kingsbury's statement created a "he-said-she-said" situation between Cooney and Aliberti on the one hand, and Silano and Kingsbury on the other. Hammel was not required to accept Silano's and Kingsbury's version of events over that of Cooney and Aliberti. See Krause, 887 F.2d at 372 ("It is up to the factfinder to determine whether a defendant's story holds water, not the arresting officer.").
For all the foregoing reasons, there is no genuine issue of material fact that the Defendant had probable cause to arrest the Plaintiff.
Based on the foregoing analysis, the Defendant's Motion for Summary Judgment [ECF No. 48] is GRANTED. The Clerk is hereby directed to close the case.
The Court observes that Silano repeatedly qualified her admissions and repeatedly failed to cite to evidence in the records in support of her qualified admissions and denials. Rule 56(a)2 of the District of Connecticut Local Rule of Civil Procedure ("Local Rules") requires that the party opposing a motion for summary judgment respond to facts in the moving party's Local Rule 56(a)1 Statement by "admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c)." Local Rule 56(c) provides that "each denial in an opponent's Local Rule 56(a)2 Statement, 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."
The Plaintiff's failures to comply with Local Rule 56(c) "frustrate [Local] Rule 56(a)'s purpose of clarifying whether a genuine dispute of material facts exists." Zamichiei v. CSAA Fire & Cas. Ins. Co., No. 3:16-cv-00739 (VAB), 2018 WL 950116, at *1 (D. Conn. Feb. 20, 2018) (quoting Liston-Smith v. CSAA Fire & Cas. Ins. Co., 287 F.Supp.3d 153, 157, n.2 (D. Conn. 2017)). The Court therefore deems admitted all qualified admissions and denials that do not comply with Local Rule 56 for purposes of resolving this motion. See D. Conn. L. Civ. R. 56(a)(3) ("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. . . ."). Accordingly, all of the facts set forth herein are undisputed unless otherwise indicated.
