Memorandum Of Law, Salahuddin v. Hale

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

MUSTAFA SALAHUDDIN : CIVIL ACTION NO. Plaintiff, : 3:13CV00260 (RNC) : v. : : KEVIN HALE, ET AL. : Defendants : APRIL 30, 2014

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

The Defendants, Kevin Hale, Andrew Cota, Wayne Williams, David Blackwell

and Joseph DiVencenzo respectfully submit this Memorandum of Law in support of their

Motion for Summary Judgment filed this day.1 Summary judgment should enter in favor

of each of the Defendants because they are all entitled to qualified immunity from

Plaintiff’s claims.

I. BACKGROUND2

Plaintiff is a former police officer with the City of Ansonia. Kevin Hale is the Chief

of Police in Ansonia and held that position at all times relevant to this matter. Andrew

Cota and Wayne Williams are lieutenants in the Ansonia Police Department. David

Blackwell was a dispatcher working in the Ansonia Police Department building at the

1 During the course of a telephone status conference with the Court, Plaintiff’s counsel indicated that Defendant Anthony Buglione, a retired State Police Officer, was never served with the complaint. Defendants Hale, Cota, Williams, Blackwell and DiVencenzo are all current or former employees of the City of Ansonia and, for ease of reference, will be referred throughout this document as the “Defendants.” 2 Because, on a motion for summary judgment, the Court views the admissible evidence in the light most favorable to the non-moving party, the Defendants have set forth the facts based on the admissible evidence and Plaintiff’s sworn testimony. In other words, these are the facts viewed in the light most favorable to Plaintiff. Defendants do not necessarily agree that all of the facts recited herein are true or accurate and reserve the right to contest all of these facts if a trial is necessary.

Case 3:13-cv-00260-RNC Document 26-1 Filed 04/30/14 Page 1 of 32

relevant time. Joseph DiVencenzo is a custodian employed by the City of Ansonia and

was assigned to the building that houses the police department at the relevant time. At

the relevant time, Anthony Buglione was a State Police Detective.

On or about May 14, 2008, Mr. DiVencenzo received two new garden hoses from

his supervisor for use at the police department building. Such hoses were kept in their

original packaging and left near the rear entrance to the building. Mr. DiVencenzo left

work that day at approximately 2:30 p.m. Plaintiff, who normally worked the 11:00 p.m.

to 7:00 a.m. shift, reported for work and went out on patrol. Plaintiff was a DARE officer

and has testified that he needed to perform some work associated with an upcoming

DARE graduation ceremony that night. When he came to the police department

building, Plaintiff testified that he was emptying trash from his cruiser and forgot that he

had left a full cup of coffee on his roof, which spilled over the cruiser when he started

driving. He drove to the front of building in order to wash off the car and noticed that

there was no hose attached to the faucet. He drove around the rear of the building and

went inside. Plaintiff noticed the two new hoses near the rear entrance but went and

had breakfast. After breakfast, Plaintiff said that he took one of the hoses and used it to

prop open the back door in order to move items associated with the DARE graduation in

and out of the building. He intended to also use the hose to wash off the cruiser.

Plaintiff testified that he worked on the DARE project, became tired and placed the hose

on a shelf/rack next to the DARE closet--rather than returning it to where he found it. By

the time he got around to dealing with the coffee on the cruiser, it had crystallized.

Plaintiff decided that rather than going through the effort of unraveling the new hose, he

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would drive the cruiser to a local business that granted police use of a hot water hose to

wash off the crystallized coffee.

In the morning, Mr. DiVencenzo could not find the hose and looked for it. He

mentioned to Lieutenant Cota that the hose was missing. Lieutenant Cota and Mr.

DiVencenzo did a thorough search of the department and could not find the hose

anywhere. Lieutenant Cota then viewed video surveillance of the department and

discovered Plaintiff placing his jacket/coat over the hose, picking up the hose and

walking out of view towards the back door. Lieutenant Cota then notified Chief Hale

who was off-duty and out of state. When Chief Hale returned, he viewed the video and

agreed that it appeared to show Plaintiff stealing the hose. Chief Hale decided to ask

the State Police to investigate to ensure that an impartial investigation occurred.

On May 20, 2008, Mr. DiVencenzo found the hose under a Tupperware top in a

box containing toilet paper. Mr. DiVencenzo did not place the Tupperware top there

and felt that this was an attempt by someone to cover up the taking of the hose.

State Police Detective Buglione conducted the investigation and interviewed

Plaintiff as well as a number of witnesses. There is no dispute that Plaintiff picked up

the hose and moved it on the night in question. Plaintiff testified that he used it to prop

open the back door as he was moving items in and out of the back door. Plaintiff further

testified that he placed the hose on the rack/shelf next to the DARE closet. Lieutenant

Cota and Mr. DiVencenzo did not find it there in the morning when they searched.

Plaintiff testified that he told Mr. DiVencenzo on a subsequent night where he could find

the hose. Mr. DiVencenzo denied this in the investigation. Mr. Blackwell was

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interviewed and provided hearsay statements regarding what he had heard. Lieutenant

Williams is not mentioned at all in the investigation. Lieutenant Cota was interviewed

and related what he was informed of and what he did regarding the hose.

On July 11, 2008, Detective Buglione prepared an Arrest Warrant Application

and provided the affidavit for such application. In his affidavit, Detective Buglione

supplied facts based on his interviews of Plaintiff, Lieutenant Cota, Mr. Blackwell and

Mr. DiVencenzo, as well as others who are not named as defendants in this action. On

July 14, 2008, the Arrest Warrant Application was signed by Ansonia/Milford State’s

Attorney Kevin Lawlor. On that same date, Judge John Ronan found probable cause

for an arrest of Plaintiff and signed the application. Plaintiff was arrested on July 15,

2008 by Detective Buglione. The State brought a single count information charging

Plaintiff with violating Connecticut General Statutes §53a-125b, larceny in the sixth

degree. Plaintiff went to trial and was acquitted of such charge.

None of the Defendants conducted the investigation of the case. None of the

Defendants charged Plaintiff with a crime and none of the Defendants prosecuted

Plaintiff.

On or around February 26, 2013, Plaintiff commenced this action by filing a one-

count complaint alleging a Section 1983 malicious prosecution claim against the

Defendants and Buglione.3 Again, Mr. Buglione was never served. The Defendants

now move for summary judgment.

3 Paragraph 13 of the complaint states: “In the manner described above, the defendants subjected the plaintiff to malicious prosecution in violation of the Fourth Amendment to the United States Constitution as enforced through Sections 1983 and 1988 of Title 42 of the United States Code.” No other claim is made.

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II. DISCUSSION

A. Summary Judgment Standard.

Summary judgment “shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue of material fact and that the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party opposing a motion for

summary judgment “may not rest upon the mere allegations or denials of [his] pleading,

but [his] response, by affidavits or otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In

determining when a party has raised a genuine issue of material fact, the Supreme

Court has stated, “there is no issue for trial unless there is sufficient evidence favoring

the non-moving 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986) (citations omitted).

Indeed, a plaintiff may not get to a jury without “any significant probative evidence

tending to support the complaint.” Anderson, 477 U.S. at 249 (quoting, First Nat'l Bank

of Arizona v. Cities Servs. Co., 391 U.S. 253, 290 (1968)). The moving party’s burden

may be fulfilled by “pointing out to the District Court--that there is an absence of

evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986).

The Second Circuit has stated that 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 [non-movant].” Yerdon v. Henry, 91 F.3d

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370, 374 (2d Cir. 1996), quoting, Anderson, 477 U.S. at 252; see also, Bickerstaff v.

Vassar College, 196 F.3d 435, 448 (2d Cir. 1999), cert. denied, 530 U.S. 1242 (2000)

(“An inference is not a suspicion or guess. It is a reasoned, logical decision to conclude

that a disputed fact exists on the basis of another fact that is known to exist.”). Further,

the Second Circuit has stated that the non-movant “cannot rely on inadmissible hearsay

in opposing a motion for summary judgment.” Burlington Coat Factory Warehouse

Corp. v. Espirit de Corp., 769 F.2d 919, 924 (2d Cir. 1985). Thus, “even in the

discrimination context, a plaintiff must provide more than conclusory allegations of

discrimination to defeat a motion for summary judgment.” Meiri v. Dacon, 759 F.2d 989,

998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). In fact, the plaintiff’s evidence must be

precise and specific, and may not be based on conjecture and surmise. Bickerstaff, 196

F.3d at 451 (“affidavits must be based upon ‘concrete particulars,’ not conclusory

allegations.”); Lisa’s Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir.

1999); see also, McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (plaintiff’s

rationalizations are insufficient to create genuine issues of material fact). In this case,

plaintiff has failed to raise a genuine issue of material fact necessitating a trial.

A. Defendants Are Entitled to Qualified Immunity.

The Defendants are protected from liability and damages by the doctrine of

qualified immunity. The Supreme Court has summarized the qualified immunity

doctrine as follows:

The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Qualified immunity balances two important interests--the need to hold public officials accountable when they exercise power

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irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is “a mistake of law, mistake of fact, or a mistake based on mixed questions of law and fact.”

Because qualified immunity is “an immunity from suit rather than a mere defense of liability . . . it is effectively lost if a case is erroneously permitted to go to trial.” Indeed, we have made clear that the “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that “insubstantial claims’ against government officials [will] be resolved prior to discovery.” Accordingly, “we have repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”

In Saucier, this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see, Fed. R. Civ. P. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of the defendant’s alleged misconduct. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.

Pearson v. Callahan, 555 U.S. 223, 231-232, 129 S. Ct. 808, 815-816 (2009) (multiple

citations omitted). In Pearson, the Court concluded that “while the sequence set forth

[in Saucier] is often appropriate, it should no longer be regarded as mandatory.” 555

U.S. at 236; 129 S. Ct. at 818. In this case, Plaintiff cannot establish a violation of his

constitutionally protected rights by the Defendants.

1. Lack of State Action.

The facts, when viewed in the light most favorable to Plaintiff, reveal that he

cannot make out a constitutional claim against some or all of the Defendants because

he cannot establish “state action” by the Defendants. In the usual case, there would be

no question that municipal police officers investigating a potential crime and making an

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arrest are state actors of Section 1983 purposes. However, this case is different. The

Defendants did not investigate the alleged crime and did not arrest Plaintiff.

Additionally, not all of the Defendants are municipal police officers. Some or all of the

Defendants do not qualify as state actors in this case.

“In order to state a claim under §1983, a plaintiff must allege that he was injured

by either a state actor or a private party acting under color of state law.” Ciambriello v.

County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). “Because the United States

Constitution regulates only the Government, not private parties, a litigant claiming that

his constitutional rights have been violated must first establish that the challenged

conduct constitutes ‘state action.’ To qualify as state action, the conduct in question

‘must be caused by the exercise of some right or privilege created by the State or by a

rule of conduct imposed by the State or by a person for whom the State is responsible,’

and ‘the party charged with the [conduct] must be a person who may fairly be said to be

a state actor.’" United States v. Internat’l. Bhd. of Teamsters, 941 F.3d 1292, 1296 (2d

Cir. 1991) (citations omitted).

Mr. DiVencenzo is a custodian employed by the City. As a custodian, Mr.

DiVencenzo is not invested with any police powers and certainly does not have the

authority to investigate crimes, arrest anyone or charge anyone with a crime. In this

case, he went looking for a missing hose on May 15, 2008. He reported that the hose

was missing to Lieutenant Cota who helped him search the building for the hose. On

May 20, 2008, he found the missing hose. He was subsequently interviewed by the

State Police in connection with an investigation that they were conducting. Under these

circumstances, Mr. DiVencenzo cannot be said to be a state actor.

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Likewise, Mr. Blackwell is a dispatcher with no police powers and no authority to

investigate, arrest or prosecute anyone. According to the Arrest Warrant Application

submitted by State Police Detective Buglione, Mr. Blackwell was interviewed and

provided a statement. The Arrest Warrant Application recites that Mr. Blackwell

provided information to Detective Buglione regarding statements that he heard from Mr.

DiVencenzo and dispatcher Patty Rowland. Salahuddin Tr. at Exhibit 5 at p. 3 of 5. In

short, Mr. Blackwell’s contribution to the Arrest Warrant Application consisted of

hearsay statements. Under these circumstances, Mr. Blackwell cannot be considered a

state actor.

As to Defendants Hale, Cota and Williams, they did not conduct the investigation,

arrest Plaintiff or charge him with anything. Rather, Chief Hale asked the State Police

to investigate Plaintiff’s actions. Such conduct does not constitute “state action” for

§1983 purposes. The “state actor” in this scenario is State Police Detective Buglione.

Therefore, some or all of the Defendants are entitled to qualified immunity because they

are not state actors for purposes of Section 1983 and Plaintiff cannot establish any

constitutional violation.

2. The Defendants Have No Liability for Malicious Prosecution.

Even if the Court were to find that some or all of the Defendants were “state

actors” for §1983 purposes, the Plaintiff still cannot establish a constitutional violation

because the Defendants’ actions cannot fairly be characterized as causing the arrest

and prosecution of Plaintiff.

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“A successful section 1983 claim for malicious prosecution under the Fourth

Amendment requires that the plaintiff show: (1) a violation of his rights under the Fourth

Amendment, and (2) that he can establish the elements of a malicious prosecution

claim under state law. Under Connecticut law, a plaintiff must demonstrate the following

four elements: (1) that the defendant initiated or procured criminal proceedings against

the plaintiff; (2) that the criminal proceedings terminated in the plaintiff's favor; (3) that

the defendant acted without probable cause; and (4) that the defendant acted with

malice, i.e., for a purpose other than bringing an offender to justice.” Acevedo v. Sklarz,

553 F. Supp. 2d 164, 172 (D. Conn. 2008) (citations omitted).

Under Connecticut law, the plaintiff has the burden of establishing the absence of

probable cause. Garcia v. Hebert, 2013 U.S. Dist. LEXIS 42872 at *23 (D. Conn. March

27, 2013) (citing, inter alia, Bhatia v. Debek, 287 Conn. 397, 410 (2008)). Thus, the

existence of probable cause is a complete defense to a malicious prosecution claim in

Connecticut. In assessing the existence of probable cause, the Second Circuit has

stated:

Probable cause requires an officer to have “knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” “When determining whether probable cause exists courts must consider those facts available to the officer at the time of the arrest and immediately before it,” as “[p]robable cause does not require absolute certainty.” Courts should look to the ‘totality of the circumstances’ and ‘must be aware that probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ Nevertheless, an officer may not disregard plainly exculpatory evidence.

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When making a probable cause determination, police officers are “entitled to rely on the allegations of fellow police officers.” “Absent significant indications to the contrary, an officer is entitled to rely on his fellow officer’s determination that an arrest was lawful.” “[T]he determination of probable cause does not turn on whether [the fellow agent’s] observations were accurate, but on whether [the arresting agent] was reasonable in relying on those observations.”

Moreover, information gleaned from informants can be sufficient to justify the existence of probable cause. . . .

Furthermore, “’[t]he fact that an innocent explanation may be consistent with the facts alleged . . . does not negate probable cause and an officer’s failure to investigate an arrestee’s protestations of innocence generally does not vitiate probable cause.” . . .

Once an officer has probable cause, he or she is “neither required nor allowed” to continue investigating, sifting and weighing information.

Panetta v. Crowley, 460 F.3d 388, 395-398 (2d Cir. 2006) (multiple citations omitted).

In this case, Plaintiff was charged with violating Connecticut General Statutes

§53a-125b, which states in relevant part: “(a) A person is guilty of larceny in the sixth

degree when he commits larceny as defined in section 53a-119 and the value of the

property or service is five hundred dollars or less.” Connecticut General Statutes §53a-

119 states, in part: “A person commits larceny when, with intent to deprive another of

property or to appropriate the same to himself or a third person, he wrongfully takes,

obtains or withholds such property from an owner.” Plaintiff does not contest the fact

that the hose belonged to the City and that its value was less than $500. There is also

no dispute that he picked up the hose and moved it out of view of the camera.

In the present case, there was a finding of probable cause when Judge Ronan

signed the Arrest Warrant Application submitted by State Police Detective Buglione.

Given this finding of probable cause, Plaintiff will find it very difficult to prove the

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absence of probable cause. Nonetheless, in his Complaint, Plaintiff alleges that the

Defendants: acted jointly and in concert with the unlawful purpose of causing Plaintiff to

be arrested and prosecuted on criminal charges (¶6); on July 11, 2008, Detective

Buglione prepared, signed and swore to an affidavit and knowingly included in such

affidavit false and malicious statements by the Defendants (¶7); on the basis of the

affidavit, Judge Ronan signed a warrant for Plaintiff’s arrest (¶8); Buglione arrested

Plaintiff (¶9); a State’s Attorney signed a criminal information charging Plaintiff with

larceny in the sixth degree (¶10); and Plaintiff was acquitted of such charges (¶11).

Thus, Plaintiff’s claim is essentially that the Defendants provided knowingly false

information to Detective Buglione and in the absence of such allegedly knowingly false

information, Judge Ronan could not have found probable cause to support Plaintiff’s

arrest. This narrow theory of liability has found some support in the law but is very

difficult for a plaintiff to prove.

“Ordinarily, an arrest or search pursuant to a warrant issued by a neutral

magistrate is presumed reasonable because such warrants may only issue upon a

showing of reasonable cause.” Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012)

(quotation marks and citations omitted). However, “[w]here an officer knows, or has

reason to know, that he had materially misled a magistrate on the basis for a finding of

probable cause, the shield of qualified immunity is lost.” Velardi v. Walsh, 40 F.3d 569,

573 (2d Cir. 1994) (quotation marks omitted). In order to state a claim based on a

misleading warrant, Plaintiff must establish that each Defendant “intentionally or

recklessly made false statements in the warrant application” and “those statements

were necessary to the finding of reasonable cause.” Loria v. Gorman, 306 F.3d 1271,

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1289 (2d Cir. 2002). The Second Circuit has relied upon the “corrected affidavit

doctrine” under which any errors in the arrest warrant affidavit “are not material if, after

crossing out any allegedly false information and supplying any omitted facts, the

‘corrected affidavit’ would have supported a finding of probable cause.” Velardi, 40 F.3d

at 573.

Judge Newman, in Velardi, 40 F.3d at 573-74, explained further:

A section 1983 plaintiff challenging a warrant on this basis must make the same showing that is required at a suppression hearing under Franks v. Delaware, 438 U.S. 154, 155-56 (1978): the plaintiff must show that the affiant knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause. Unsupported conclusory allegations of falsehood or material omission cannot support a Franks challenge; to mandate a hearing, the plaintiff must make specific allegations accompanied by an offer of proof. Moreover, when police officers move for summary judgment on the basis of qualified immunity, "plaintiffs may not unwrap a public officer's cloak of immunity from suit simply by alleging even meritorious factual disputes relating to probable cause, when those controversies are nevertheless not material to the ultimate resolution of the immunity issue." Disputed issues are not material if, after crossing out any allegedly false information and supplying any omitted facts, the "corrected affidavit" would have supported a finding of probable cause.

. . .

In sum, to survive the defendants' motion for summary judgment on this issue, the plaintiffs must satisfy three conditions: they must have made an offer of proof supporting specific allegations of deliberate or reckless misrepresentation, as required by Franks; the alleged misrepresentations must be legally relevant to the probable cause determination; and there must be a genuine issue of fact about whether the magistrate would have issued the warrant on the basis of "corrected affidavits."

(citations omitted). In this case, Plaintiff cannot make anything more than a feeble offer

of proof of “deliberate or reckless misrepresentation” by the Defendants. Further,

Plaintiff cannot show that the alleged “deliberate or reckless misrepresentation” by each

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Defendant was material or relevant to the probable cause determination. Finally,

Plaintiff cannot demonstrate a genuine issue of material fact about whether Judge

Ronan would have issued the warrant on the basis of the “corrected affidavits.”

Judge Ronan’s probable cause determination was based on the submission of

the Arrest Warrant Application by State Police Detective Buglione. Thus, the Arrest

Warrant Application is the operative document in determining whether any false

statements were submitted to Judge Ronan and whether any such allegedly false

statements were material to the determination of probable cause. It is not enough for

Plaintiff to show that Detective Buglione made any false statements, knowingly or

unknowingly, in his affidavit. Rather, Plaintiff first must prove, with respect to each

Defendant, that they made a knowingly false statement to Detective Buglione and that

such statement(s) made it into the Arrest Warrant Application that Judge Ronan

reviewed in finding probable cause.4 If he is able to do so, Plaintiff then has the burden

of proving that such knowingly false statements of the Defendants appearing in the

affidavit are material to the probable cause determination. Plaintiff cannot do so.

In addition to being required to establish that the alleged knowingly false

misrepresentations of the Defendants were legally relevant to the probable cause

determination, Plaintiff is also required to prove, with respect to each of the Defendants,

that such Defendant initiated a proceeding against him. The Acevedo court explained:

"A person is deemed to have initiated a proceeding if his direction or request, or pressure of any kind by him, was the determining factor in the officer's decision to commence the prosecution . . . [or] the defendant's request might reasonably have been found to be the proximate and

4 Any opinions held by any of the Defendants and reflected in the Arrest Warrant Affidavit should be irrelevant to the probable cause determination.

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efficient cause of the arrest." Zenik v. O'Brien, 137 Conn. 592, 596, 79 A.2d 769 (1951). Where a complaining witness has merely provided potentially incriminating information to the police, he cannot be liable for malicious prosecution. McHale, 187 Conn. at 448. "[I]f the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution." Id.

553 F. Supp. 2d at 172.

To recap, with respect to this motion, the Court is called upon to evaluate, while

viewing the admissible evidence in the light most favorable to the Plaintiff: (a) whether

Plaintiff has proven that the Defendants made any knowingly false statements that are

contained in the Arrest Warrant Application; (b) whether any such knowingly false

statements are material to the probable cause determination; and (c) whether the

Defendant’s direction, request or pressure was the determining factor in Detective

Buglione’s decision to apply for the arrest warrant and to arrest Plaintiff.

According to the Arrest Warrant Affidavit, Chief Hale contacted the State Police

and “requested assistance with a larceny involving one of his officers. Chief Hale

advised that Officer Mustafa Salahuddin was captured on a department surveillance

camera during his shift on May 15, 2008, stealing a garden hose from the rear stairwell

of the department.” Salahuddin Tr. at Exhibit 5 (p. 1 of 5). In the Arrest Warrant

Application, Chief Hale is not alleged to have stated anything further. State Police

Detective Buglione swore that he commenced his investigation and viewed the

videotape. Detective Buglione recorded his own observations of what was depicted on

the videotape. Salahuddin Tr. at Exhibit 5 (pp. 1-2 of 5). Plaintiff objects to Chief Hale’s

characterization of what he observed on the video--specifically, that Plaintiff was

involved in a possible larceny. If Chief Hale’s opinion based on his observation of the

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video were eliminated from the Arrest Warrant Application, such omission would be

inconsequential and would have no impact on the Arrest Warrant Application. Detective

Buglione made his own review and reached his own conclusions. Chief Hale made no

misrepresentations of fact and his opinion was inconsequential to the probable cause

determination. Additionally, while Chief Hale requested that the State Police conduct an

investigation of what appeared to be a larceny, such request does not appear to be the

determinative factor in Detective Buglione’s decision to apply for an arrest warrant or to

arrest Plaintiff. The record reveals no evidence that Chief Hale directed or even

requested that State Police Detective Buglione apply for an arrest warrant. Therefore,

Chief Hale is entitled to the protections of qualified immunity.

Lieutenant Cota was interviewed as part of Detective Buglione’s investigation.

According to the Arrest Warrant Affidavit, the following statements are attributed to

Lieutenant Cota:

a. On May 14, 2008, the City’s Public Works Department purchased two

new hoses for the police department for $24.99 each;

b. DiVencenzo put the hoses behind the double doors that lead to the

rear stairwell of the building;

c. On May 15, 2008, he was notified by DiVencenzo that one of the

hoses had been stolen;

d. He and DiVencenzo thoroughly searched the department but could not

locate the hose;

e. A review of the department’s surveillance video revealed that Plaintiff

had taken the hose;

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f. On the video, Plaintiff is seen covering the hose with a jacket, picking it

up and walking toward the rear stairwell and out of view of the camera;

g. On May 20, 2008, DiVencenzo found the hose hidden in a cardboard

box in the basement of the building;

h. On May 15, 2008, Plaintiff was assigned to the local patrol which

includes the police department and officers in that assignment

commonly drive through the department’s parking lot without

requesting permission;

i. According to dispatch records, no other patrol officer was at the police

department at that time;

j. He spoke to Blackwell who related that Plaintiff had advised

dispatchers that he used the hose to prop open the door to bring in or

out DARE bags;

k. This did not make sense to him since there is a pushbar on the inside

of the door and there was no need to keep the door propped open;

l. Every officer has an access card assigned to them to open the door

from the outside and a record is maintained of the activity of the door;

m. The back door has an internal alarm set to 1.5 minutes before dispatch

is notified that the back door has been open too long;

n. On May 15, 2008, department records indicated that Plaintiff was the

only person to activate the back door (at 5:18 a.m. and 5:44 a.m.) and

there was no indication that the door was open for more than 1.5

minutes; and

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o. The hose was not on the shelf when he searched the department on

May 15, 2008.

To date, Plaintiff has not claimed that any of these statements are false. Plaintiff has no

basis to challenge such facts because he admits that he did not speak to Lieutenant

Cota about the incident. Because Lieutenant Cota’s statements are not claimed to be

false, there would be no need to go through the exercise of eliminating them from the

affidavit and examining a “corrected affidavit.” To the extent that Plaintiff claims that

Lieutenant Cota expressed an opinion that the video indicated that Plaintiff appeared to

steal the hose,5 such opinion is immaterial to the affidavit because Detective Buglione

observed the video for himself and conducted his own investigation. Further, there is no

evidence to suggest that Lieutenant Cota initiated any criminal proceedings against

Plaintiff. Certainly, Lieutenant Cota helped search the department after learning from

Mr. DiVencenzo that the hose was missing and he also looked at the video to see if

anyone was depicted as having taken the hose. However, he turned any determination

as to whether an investigation should be commenced over to Chief Hale, who called the

State Police. As the Arrest Warrant Affidavit makes clear, Lieutenant Cota provided

facts in response to the investigation conducted by Detective Buglione. There is no

evidence that Lieutenant Cota made any request or applied any pressure to Detective

Buglione that was the determining factor in Detective Buglione’s decision to apply for an

arrest warrant for Plaintiff. There is no evidence to suggest that Lieutenant Cota did

anything further than cooperate with the State Police investigation as a witness. As

5 In the Arrest Warrant Application, there does not appear to be a mention of any opinion expressed by Lieutenant Cota--just the facts.

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such, there is no basis upon which to hold Lieutenant Cota liable for malicious

prosecution.

Lieutenant Wayne Williams is not mentioned in the Arrest Warrant Application at

all.6 There are no statements made by Lieutenant Williams that formed the basis for the

finding of probable cause. There is no evidence at all that Lieutenant Williams initiated

any charges against Plaintiff. In short, there is no possible basis upon which Lieutenant

Williams could be held liable for malicious prosecution.

In the Arrest Warrant Application, Dispatcher David Blackwell is credited with

making the following statements:

a. he arrived for work at 0800 hours on Thursday, May 15, 2008. During

the early morning hours, Mr. DiVencenzo came into dispatch and

asked him if he took a garden hose. Blackwell said that he thought it

was a joke but DiVencenzo told him that someone must have stolen

the hose. Blackwell thought that Lieutenant Cota overheard this,

seemed upset and threatened to pull an internal affairs investigation if

the hose was not returned;

b. On Monday, May 19, 2008, Blackwell reported back to work and

relieved Patty Rowland, who told him that during the shift she had

been speaking to Plaintiff. According to Rowland, Plaintiff said that if

management had video, he would be suspected because he had used

the hose to prop open the back door in order to bring in DARE supplies

6 Plaintiff further testified that Wayne Williams did not testify at the criminal trial.

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and then threw it in the hall. Blackwell stated that this sounded hard to

believe because there is a chair near the door that is used to prop

open the door.

In short, Mr. Blackwell submitted to questioning by State Police and relayed hearsay

statements. The Arrest Warrant Application recounts the statements made by

DiVencenzo and Rowland to State Police. Thus, the statements attributed to Mr.

Blackwell are simply corroboration of the statements made by others. If Mr. Blackwell’s

statements were eliminated completely from the Arrest Warrant Application, it would

have no effect on the probable cause determination. Mr. Blackwell’s hearsay

statements appear to add no value. Additionally, there is no evidence to suggest that

Mr. Blackwell made any request or exerted any pressure on Detective Buglione that

was a determinative factor in Detective Buglione’s decision to apply for an arrest

warrant. Blackwell certainly did not initiate any criminal proceedings against Plaintiff.

Thus, Blackwell cannot be held liable for malicious prosecution.7

The statements attributable to Mr. DiVencenzo contained in the Arrest Warrant

Application are as follows:

a. Two Green Thumb Never Kink hoses were purchased on May 14,

2008 and supervisor Judd Glaze dropped them off at the police

department that afternoon;

7 Plaintiff also complains about Mr. Blackwell’s alleged trial testimony in which he allegedly testified that Plaintiff gave him a ride home from work one night and Plaintiff admitted to transporting the hose to a different location to wash off the cruiser. Such statement does not appear in the Arrest Warrant Application and is irrelevant to this inquiry. By the time of trial, Judge Ronan had already made the probable cause determination. Such trial testimony goes toward a finding of guilt or acquittal--not probable cause.

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b. He left the police department at approximately 2:30 p.m. and left the

hoses, in their original packaging, behind the double doors in the rear

stairwell;

c. The next morning, one of the hoses was missing;

d. He searched the building but could not find the hose;

e. He eventually told Lieutenant Cota and Sergeant Owens about the

missing hose;

f. He spoke to Blackwell who related that Patty Rowland had said that

Plaintiff had used the hose to prop open the back door;

g. He heard Plaintiff say to Blackwell and Rowland that he used the hose

to prop open the back door;

h. On May 20, 2008, he was cleaning a bathroom and noticed that more

toilet paper was needed and went to the hallway where he keeps an

open cardboard box of toilet paper on top of a table. He found a

plastic Tupperware type of lid on the cardboard box. He reached in the

box to get the toilet paper and found the missing hose;

i. He said that he never puts a plastic lid on the cardboard box and the

last time he had seen the lid, it had been on an empty shelf at the

bottom of the stairs. He said it was obvious that someone was

intentionally trying to hide the hose;

j. Plaintiff never told him that he had put the hose on a shelf in the

basement. The shelf is located along the wall in the basement at the

bottom of the rear stairs and is completely empty. If Plaintiff had told

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him that the hose was on the shelf, he would have found it. The hose

was not on the shelf when he searched for it on May 15, 2008.

As the Arrest Warrant Application makes clear, Mr. DiVencenzo was aware that Plaintiff

said that he used the hose to prop open the back door of the building. Plaintiff claims

that, in addition to saying that he used the hose to prop open the back door, he also told

Mr. DiVencenzo where the hose could be found--on the racks next to the DARE closet.

According to the Arrest Warrant Application, Mr. DiVencenzo said that Plaintiff “never

told him that he put the hose on the shelf in the basement. DiVencenzo said the shelf is

located along the wall in the basement at the bottom of the rear stairs and is completely

empty. He said if Salahuddin told him the hose was on the shelf he would have found it

and it would not have been an issue.” Salahuddin Tr. at Exhibit 5 (p. 4 of 5). Thus,

according to Plaintiff, Mr. DiVencenzo’s above statement that Plaintiff did not tell him

where the hose was located was knowingly false.8 Plaintiff also appears to claim that

Mr. DiVencenzo’s statement that the hose was not on the shelf the next morning and his

statement that he found the hose in the toilet paper box are false. However, Plaintiff

concedes that it is possible that someone could have moved the hose from where he

allegedly left it to the toilet paper box. Thus, Plaintiff cannot establish that Mr.

DiVencenzo’s statements about where the hose was found are false. In sum, the only

factual statements attributable to Mr. DiVencenzo that Plaintiff can legitimately claim to

be knowingly false is the statement that Plaintiff never told him that he put the hose on

the shelf in the basement.

8 Along the same lines, Plaintiff complains that Mr. DiVencenzo never got back to him about the hose and never told him that he could not find the hose in the basement. Obviously, the Defendants disagree with Plaintiff’s contentions.

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In order to determine whether such alleged knowingly false statement by Mr.

DiVencenzo was material to Judge Ronan’s probable cause determination, additional

inquiry into what was contained in the Arrest Warrant Application is necessary. The

Arrest Warrant Application reflects that Plaintiff made the following statements:

a. He has been a police officer in Ansonia since 1994 and was a DARE

officer;

b. On May 15, 2008, at the end of rollcall, he asked Sgt. Flynn if he could

get Sgt. Owens’ keys to the DARE closet from his office since Plaintiff

and Owens work opposite shifts;

c. he used the keys in Sgt. Owens’ office to unlock the DARE closet in

the basement and returned the keys to Sgt. Owens’ office;

d. he and Patty Rowland had an agreement to get the DARE graduation

bags together during the shift;

e. While on patrol, he spilled coffee on the roof of his cruiser. He decided

to go to the police department, wash the car and get the DARE bags

ready;

f. When he arrived at the department, he noticed no hose attached to the

building, parked in the back and went inside;

g. He noticed two garden hoses in the back stairwell;

h. He was carrying his jacket and, in order to free up his hands, he threw

the jacket on the hose and picked the hose and jacket up and used the

hose to prop open the door while he went to the DARE closet. He

decided not to prepare the bags. He also decided not to use the hose

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to wash the cruiser and, instead to wash the cruiser at the cleaners’

next to the Roma restaurant;

i. He put the hose that he had been using to prop the door open on the

shelf downstairs;

j. He said that he used the hose for about 5 minutes to prop the door

open;

k. The next day, he was speaking with Patty Rowland who related that a

hose had been stolen and it was on videotape. He told Rowland and

DiVencenzo that he had used the hose to prop open the back door.

He told Rowland and DiVencenzo that he never took the hose out of

the building and put it on a shelf;

l. When told that his account differed from that of DiVencenzo and

Rowland, he said that he told both of them that the hose was in the

basement and never left the building;

m. When asked why he did not return the hose to the back stairwell

(where he found it) or tell Lieutenant. Cota, Plaintiff had no answer;

n. When confronted with revelation that the door was alarmed, Plaintiff

changed his story from 5 minutes to 2 minutes;

o. Plaintiff agreed to prepare a written statement for the State Police and

left a voicemail indicating that he had done so but never turned in the

statement.

As noted in the Statement of Facts Not in Dispute, Plaintiff takes issue with some of the

facts and conclusions that Detective Buglione attributed to Plaintiff. However, that is

24


irrelevant to the examination of whether Mr. DiVencenzo’s statement that Plaintiff did

not tell him that he left the hose on the basement shelf was material to the probable

cause determination.

If Mr. DiVencenzo’s statement (that he said that Plaintiff “never told him that he

put the hose on the shelf in the basement. DiVencenzo said that the shelf is located

along the wall in the basement at the bottom of the stairs and is completely empty. He

said if Salahuddin told him the hose was on the shelf he would have found it and it

would not have been an issue.”) were eliminated from the Arrest Warrant Application,

Judge Ronan would have been left with facts that established: the hoses were

purchased and left in the back stairwell; Plaintiff picked up one of the hoses along with

his jacket and moved towards the back door; Plaintiff said that he used it to prop open

the back door and left it on a shelf in the basement; Plaintiff changed his estimate of the

amount of time that the rear door was open when confronted with evidence as to the

door being alarmed; the next morning, Mr. DiVencenzo and Lt. Cota searched the

building but could not find the hose; the video revealed Plaintiff as having picked up the

hose and carried it off; on May 19, 2008, Chief Hale contacted the State Police to

conduct an investigation; on May 20, 2008, the hose reappeared concealed under a

Tupperware lid in a box of toilet paper; and Detective Buglione represented that Plaintiff

did not have answers to certain questions. Detective Buglione included facts in his

affidavit that cast doubt on Plaintiff’s story and suggested that Plaintiff was less than

credible. To put it more succinctly, Judge Ronan was presented with a sworn affidavit

showing: a brand new hose was purchased; Plaintiff was caught on video picking up

the hose and moving it; although Plaintiff claims he left it on a shelf in the department,

25


the hose was gone the next day; and the hose only reappeared after the State Police

were contacted. This is enough for a reasonable person to believe that Plaintiff had

wrongfully taken the hose--which cost less than $500. Such facts are sufficient for a

finding of probable cause to believe that Plaintiff violated Connecticut General Statutes

§53a-125b. Therefore, Mr. DiVencenzo’s statement was not material to the probable

cause determination. Because his statement was not material to the probable cause

determination, Mr. DiVencenzo cannot be held liable for malicious prosecution.

Additionally, the record reflects that Mr. DiVencenzo did nothing to request an

investigation of Plaintiff or the initiation of criminal charges against Plaintiff. He was the

custodian and it was not his place to initiate any such charges. Rather, Mr. DiVencenzo

was obviously miffed at the disappearance of a brand new hose and wanted to get it

back. He cooperated with Detective Buglione and related what he knew. No

reasonable juror could conclude that Mr. DiVencenzo initiated the charges against

Plaintiff. Therefore, to the extent that he may be found to be a state actor, Mr.

DiVencenzo is entitled to qualified immunity.

3. Insufficient Personal Involvement.

In addition to the reasons stated above, Plaintiff cannot establish a Constitutional

violation against some or all of the Defendants because of a lack of personal

involvement. Second Circuit law establishes that “personal involvement of defendants

in alleged constitutional deprivations is a prerequisite to an award of damages under

§1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). “Section 1983 imposes

liability only on the official causing the violation.” Camacho v. Fairfield County, 2004

U.S. Dist. LEXIS 4296 at *18 (D. Conn. March 12, 2004). “Generally, ‘[a] supervisor

26


may not be held liable under section 1983 merely because his subordinate committed a

constitutional tort.’ However, a supervisor may be found liable for a subordinate’s action

when he (1) directly participated in the action; (2) failed to remedy the wrong after

learning of the violation through a report or appeal; (3) ‘created a policy or custom under

which unconstitutional practices occurred, or allowed such a policy or custom to

continue;’ or (4) ‘was grossly negligent in managing subordinates who caused the

unlawful condition or event.’” Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 251 (D.

Conn. 2008)(citing, Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).

In this case, the Defendants provided statements to the State Police in

connection with the State Police’s investigation. Because the State Police conducted

the investigation, none of the Defendants could have supervisory liability because they

do not supervise the State Police. They were not involved in the investigation,

assessment of the evidence, the application for an arrest warrant, the arrest or the

prosecution of Plaintiff. In short, none of the Defendants had sufficient personal

involvement in the prosecution of Plaintiff to sustain civil liability. The independent

actions of the State Police broke any chain of causation between the actions of the

Defendants and Plaintiff’s arrest and prosecution. Thus, all of the Defendants should be

found to have insufficient personal involvement in this case.

Additionally, the evidence in this case reveals that Lieutenant Wayne Williams is

not mentioned at all in the Arrest Warrant Application. The record does not reveal any

statement that he made with respect to this investigation. Lieutenant Williams certainly

has no personal involvement in any malicious prosecution of Plaintiff and is entitled to

summary judgment on that basis.

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Further, Dispatcher Blackwell related some hearsay statements to Detective

Buglione in response to Detective Buglione’s questioning. Mr. Blackwell’s involvement

is tangential at best and is insufficient to create liability for the alleged malicious

prosecution of Plaintiff.

For these reasons and the reasons stated above, Plaintiff cannot establish a

violation of his Constitutional rights by any of these Defendants. Consequently, the

Defendants are entitled to the protections of qualified immunity and the entry of

summary judgment in their favor.

5. Reasonable Officers in the Defendants’ Positions Would Find the Defendants’ Actions to Be Objectively Reasonable.

In the event that Plaintiff were found to have established a genuine issue of

material fact as to whether he suffered a violation of his Constitutionally protected rights

by one or more of the Defendants, the Court must move to the second step of the

qualified immunity analysis and determine whether the right he seeks to protect was

clearly established as of July 15, 2008--the date of his arrest. In “determining whether a

particular right was clearly established at the time defendants acted, [the Second

Circuit] has considered three factors: (1) whether the right in question was defined with

‘reasonable specificity’; (2) whether the decisional law of the Supreme Court and the

applicable circuit court support the existence of the right in question; and (3) whether

under preexisting law a reasonable defendant official would have understood that his or

her acts were unlawful.” Yorzinski v. Alves, 477 F. Supp. 2d 461, 469 (D. Conn. 2007)

(quoting, Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S.

962 (1992)). “[I]f plaintiff had a clearly established, constitutionally protected right that

28


was violated by the actions of the [defendants], [plaintiff] must demonstrate that

defendants’ actions were not objectively reasonable.” Yorzinski 477 F. Supp. 2d at 469

(citing, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “‘The objective reasonableness

test is met – and the defendant is entitled to immunity – if officers of reasonable

competence could disagree on the legality of defendant’s actions,’ taking into account

the ‘facts and circumstances of each particular case . . . .” Id. (citing, Thomas v. Roach,

165 F.3d 137, 143 (2d Cir. 1999)).

In this case, Chief Hale contacted the State Police to conduct an investigation in

order to eliminate any taint of bias or partiality. Such decision was objectively

reasonable. Plaintiff has argued that the State Police should not have been contacted

at all and that Ansonia should have done a preliminary investigation before turning it

over to the State Police. In Plaintiff’s view, the situation would have been cleared up

more quickly that way. However, Plaintiff cannot dispel qualified immunity by second-

guessing the decisions of the Defendants. A preliminary investigation posed the danger

of compromising the integrity of any later investigation. While Plaintiff may have

preferred that Chief Hale conduct a preliminary investigation, such preference does not

change the fact that calling upon an outside law enforcement agency to investigate a

potential crime committed by an officer is an objectively reasonable course of action.

No police chief in Chief Hale’s position would conclude that he or she was violating

Plaintiff’s Constitutionally protected rights by asking for the independent investigation.

Indeed, most would view such action as protecting Plaintiff’s Constitutional rights.

Once again, Lieutenant Williams is not mentioned in the Arrest Warrant

Application. The record does not reflect that he did anything in connection with the

29


arrest or prosecution of Plaintiff. Therefore, any reasonable officer in his position would

not think that his actions violated Plaintiff’s Constitutionally protected rights.

Lieutenant Cota helped Mr. DiVencenzo search the police department building

for the hose, viewed the video and reported his observations to Chief Hale. Thereafter,

he fully cooperated with the State Police investigation. Again, Plaintiff admits that he

never spoke to Lieutenant Cota about the incident. Plaintiff has not and cannot

challenge the factual statements of Lieutenant Cota that appeared in the Arrest Warrant

Application. No reasonable officer in Lieutenant Cota’s position would view his actions

as being objectively unreasonable.

Mr. Blackwell was a dispatcher and cooperated with the State Police

investigation. According to the Arrest Warrant Application, he related what he had

heard from others. Plaintiff has not challenged the veracity of Mr. Blackwell’s hearsay

statements.9 In other words, there is nothing objectively false or material in the

statements attributed to Mr. Blackwell in the Arrest Warrant Application.

Mr. DiVencenzo is a custodian who went looking for a missing hose. He

cooperated with the State Police investigation. Plaintiff claims that Mr. DiVencenzo

falsely told investigators that Plaintiff did not tell him where the hose could be found.

Mr. DiVencenzo did not recall Plaintiff saying such a thing. Once again, even if one

were to assume that such statement was false, it was not material to the probable

cause determination. No custodian in Mr. DiVencenzo’s position would believe that his

actions in answering the State Police’s questions violated Plaintiff’s Constitutionally

protected rights.

9 Again, Plaintiff complains about Mr. Blackwell’s alleged trial testimony which is irrelevant because it occurred after the probable cause decision.

30


Because all of the Defendants’ actions were objectively reasonable, they are

entitled to qualified immunity.

III. CONCLUSION

For the foregoing reasons, summary judgment should enter in favor of the

Defendants on Plaintiff’s Complaint.

DEFENDANTS, KEVIN HALE, ANDREW COTA, WAYNE WILLIAMS, DAVID BLACKWELL AND JOSEPH DIVENCENZO

By: /s/

Joseph W. McQuade, ct12121 Kainen, Escalera & McHale, P.C. 21 Oak Street, Suite 601 Hartford, CT 06106 Tel: (860) 493-0870 Fax: (860) 493-0871 E-mail: [email protected] Their Attorney

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CERTIFICATE OF SERVICE

The undersigned certifies that on this 30th day of April 2014, a copy of the

foregoing Memorandum of Law in Support of Defendant’s Motion for Summary

Judgment was filed electronically and served by mail on anyone unable to accept

electronic filing. Notice of this filing will be sent by email to all parties who have

appearances as of the time of this filing, by operation of the Court’s electronic filing

system or by mail to anyone unable to accept electronic filing as indicated on the Notice

of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.

/s/

Joseph W. McQuade, ct12121

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Documents

Memorandum Of Law, Salahuddin v. Hale