Opinion
No. CV 06-5000704
November 10, 2008
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (#199) AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DATED JULY 3, 2008
This case stems from an incident which occurred on a school bus on May 16, 2005. The plaintiff, Melvin Washington, a school bus driver for the city of New Britain, was accused of striking a student on the bus; the plaintiff claimed he had been assaulted by two students on the bus. One student was charged with breach of peace. The plaintiff was arrested for risk of injury to a minor, a felony, and breach of peace and assault in a third degree, both misdemeanors. After a jury trial, the plaintiff was acquitted of all charges. Following his acquittal, the plaintiff brought this action against the arresting officers, John Blackmore and John Gonzalez, as well as William Gagliardi, the acting chief of the City of New Britain Police Department, and the City of New Britain (hereinafter "the defendants"). The subject complaint in this action is an amended complaint dated July 17, 2008, which contains nine counts sounding in: (1) false imprisonment; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) equal protection violation under the Fourteenth Amendment; (5) Fourth Amendment right against unreasonable seizure violated; (6) due process violation under the Fourteenth Amendment; (7) malicious prosecution; (8) municipal liability; and (9) statutory costs, fees and double or treble damages.
The plaintiff filed a motion for summary judgment on May 19, 2008, and the defendants responded with their own motion for summary judgment dated July 3, 2008. The issue of whether the police officers had probable cause to arrest the plaintiff is central to both motions. For the reasons stated below, the court concludes that as a matter of law, the police officers had probable cause to arrest the plaintiff. This conclusion requires the court to deny the plaintiff's motion for summary judgment and grant the defendants' motion for summary judgment.
FACTS CT Page 17703
Based on the pleadings, affidavits and documentary evidence, the court finds that the following facts are not in dispute: On the afternoon of May 16, 2005, the plaintiff was driving a school bus in which Michael Medina and a juvenile were passengers. At some point on the bus route, the plaintiff suspected that these two individuals were not supposed to be on his bus. The plaintiff then stopped the bus and confronted the students. An altercation ensued wherein the plaintiff claims he was assaulted by Medina and the juvenile. The plaintiff then drove the bus back to Slade Middle School, where he was interviewed on the bus by Officer Blackmore. Officer Blackmore asked for and received the plaintiff's driver's license. Officer Blackmore left the bus and Officer Gonzalez remained with the plaintiff.The following facts are found from the affidavit of Officer Blackmore dated November 6, 2007, and the New Britain Police Department incident report for case no. 05-19284, which both parties have submitted. Officer Blackmore was dispatched to Slade Middle School on an assault complaint. The dispatcher informed him that a student had called from his cell phone stating that the driver of bus number fifty-seven had assaulted a student. After speaking to the plaintiff, Officer Blackmore observed the juvenile student involved and found that the student had redness on his left cheek area and a scratch in his inner mouth that was bleeding. Thereafter, Officer Blackmore spoke with school principal Jim Collin, who reported that students exiting bus fifty-seven had been saying that their driver had punched a student. Thereafter, Officer Blackmore spoke with Nelson Pagan, the security guard for Slade Middle School, who had spoken to the students involved. Mr. Pagan told Officer Blackmore that one of those students had complained that the plaintiff had yelled at, spit, hit and punched him. Based on these findings, the plaintiff was placed under arrest at the scene for risk of injury to a minor, breach of peace and assault in the third decree.
DISCUSSION
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Hartford Accident Indemnity Co. v. Ace American ReInsurance Co., 284 Conn. 744, 754, 936 A.2d 224 (2007). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "Only one of [a] defendant's defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
"[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." Martin v. Westport, 108 Conn.App. 710, 721 (2008).
I. PLAINTIFF'S CLAIM THAT DEFENDANTS HAD NO PROBABLE CAUSE IN MAKING ARREST
The plaintiff maintains that he was arrested without probable cause. It is his position that the only information known to Officer Blackmore at the time of the arrest was the plaintiff's statement that he had been assaulted by two students. The plaintiff states in his affidavit that he was arrested before Officer Blackmore personally questioned the students involved. This claim has a basis in fact, as the police report indicates that Officer Blackmore interviewed the students, in the presence of their mother, approximately forty minutes after the plaintiff was arrested. The plaintiff's claim, however, ignores the fact that Officer Blackmore personally observed the student's injury, and that he had also spoken to the security guard, Mr. Pagan, who had learned of the students' complaints. The plaintiff is correct that Mr. Pagan's statement is hearsay, however, it may be considered by Officer Blackmore. "Police officers arrest and charge suspects frequently based on hearsay evidence of victims and witnesses." (Internal quotation marks omitted.) State v. McCullough, 88 Conn.App. 110, 120, 868 A.2d 757 (2005). It is understandable that the plaintiff does not acknowledge or contradict the information Officer Blackmore learned while the plaintiff remained on the bus; however, that does not mean the events described by Officer Blackmore did not take place.
Officer Blackmore states in his affidavit, and in the police report, that the plaintiff admitted to punching the juvenile in the face. In an affidavit dated July 9, 2008, the plaintiff states he "never confessed anything" to Officer Blackmore. Because of these contradictory statements, tins court must determine if this factual dispute precludes summary judgment. This issue was considered by the Appellate court in a case that is factually similar to this one.
In Crone v. Connelly, 74 Conn.App. 788, 813 A.2d 1084 (2003), aff'd 267 Conn. 581, 840 A.2d 552 (2004), seven fifth grade students complained that the plaintiff, their gym teacher, pushed and shoved them, physically injuring them. The school conducted internal discipline of the teacher, and a parent of one of the students complained to the Bridgeport police department. After conducting their investigation, the Bridgeport police submitted an application for an arrest warrant and included summaries of their interviews with the victims, as well as a summary of the school nurse's report. The arrest warrant application also included a partial statement by Susan Spivack, a friend of the plaintiff who was meeting him for lunch and witnessed the incident. In her account, Spivack stated that she saw the students play fighting, punching at, and kicking one another, and that she saw the plaintiff yell at the students to get into line. The warrant application omitted a statement by Spivack that she did not see the plaintiff grab, punch or hit any of his students. On the basis of this omission, the plaintiff alleged that "(1) the defendants conspired to arrest the plaintiff falsely and to prosecute him, and (2) the defendant members of the police department violated the plaintiff's civil rights pursuant to 42 U.S.C. § 1983 by subjecting him to false arrest and malicious prosecution." Id., 795-96.
The court observed: "The plaintiff's allegations against the defendants as individuals, excluding Connelly, involve claims of a violation of his civil rights pursuant to 42 U.S.C. § 1983, false arrest and malicious prosecution. At the core of those allegations is the lack of probable cause to seek an arrest warrant and the partial exclusion of Spivack's full statement concerning the alleged events. Essentially, the plaintiff claims that the defendants explicitly should have stated that Spivack observed that the plaintiff did not touch, hit or push his students instead of stating only her observations of the students having been disorderly and the plaintiff having raised his voice to the students." (Emphasis in original.) Id., 797-98.
In this case, the plaintiff claims that there was no admission or confession by the plaintiff, consequently none should be considered by the court in these proceedings. The Crone court provides guidance in such a situation. "[I]n the context of a § 1983 claim, and for purposes of deciding whether to grant a motion for summary judgment or to direct a verdict, the determination of whether factual disputes are material to the resolution of the issue of qualified immunity is made by applying the same affidavit correction test used in a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under that test, factual disputes are extraneous to the resolution of the issue of qualified immunity if the affidavit accompanying the warrant is sufficient, after correcting for material misstatements or omissions, to support a reasonable officer's belief that probable cause existed . . . Only if the corrected affidavit did not support an objective finding of probable cause would the factual disputes be material to resolving the issue of probable cause. In that case, summary judgment [appropriately would] be denied and [the] factual issues involving the immunity doctrine would be submitted to the jury . . . Therefore, before taking the issue of qualified immunity away from the jury as a matter of law, the trial court must first determine that there are no material issues of fact relevant to the existence of probable cause." Crone v. Connelly, supra, 74 Conn.App. 800, citing Ham v. Greene, 248 Conn. 508, 521-22, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999).
"In this regard, the materiality of a misrepresentation or an omission is a mixed question of law and fact . . . But the weight that a neutral magistrate would likely have given such information is a question for the finder of fact, so that summary judgment is inappropriate in doubtful cases . . . Nonetheless, if the evidence, viewed in the light most favorable to the [plaintiff], discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the corrected affidavits, then under the ordinary standard for summary judgment . . . a qualified immunity defense must be upheld." (Citations omitted; internal quotation marks omitted.) Ham v. Greene, supra, 248 Conn. 522.
In order to view the evidence in a light most favorable to the plaintiff, the court will not consider the plaintiff's claimed admission. It is helpful to review the law regarding the determination of probable cause to arrest. "In order for a warrantless felony arrest to be valid, it must be supported by probable cause . . . We consistently have held that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence . . . Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred . . . The probable cause determination is, simply, an analysis of probabilities . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act . . . Probable cause is not readily, or even usefully, reduced to a neat set of legal rules . . . Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause." (Emphasis added; internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 435, 944 A.2d 297 (2008).
"The determination of whether probable cause exists under the fourth amendment to the federal constitution . . . is made pursuant to a totality of circumstances test . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed . . . The probable cause test then is an objective one." (Citations omitted; internal quotation marks omitted.) State v. Johnson, supra, 286 Conn. 435-36. "Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. . . . We also note that the issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties." (Emphasis added; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 54 Conn.App. 127, 134, 733 A.2d 892 (1999).
After excluding the plaintiff's alleged admission, and applying the totality of circumstances test, the court concludes that as a matter of law, Officer Blackmore had probable cause to arrest the plaintiff. These circumstances include the following information which was known to Officer Blackmore before he arrested the plaintiff. Officer Blackmore had been dispatched to Slade Middle School on a complaint from a student on bus fifty-seven. The complaint was that the driver had assaulted a student. He observed that the student had redness on his cheek and was bleeding from a scratch in his mouth. Students exiting the bus reported to the school principal that the driver had punched a student. The student involved in the altercation reported to the security guard that the plaintiff had yelled at, spit at, and punched him These facts and circumstances are sufficient to allow a reasonable man to conclude that the plaintiff had committed an offense.
II. PLAINTIFF'S CONSTITUTIONAL CLAIMS: FALSE IMPRISONMENT (COUNT ONE), EQUAL PROTECTION (COUNT FOUR), UNREASONABLE SEIZURE (COUNT FIVE) DUE PROCESS (SIXTH COUNT)As to the plaintiff's claims based in constitutional law, the defendants argue that they are protected from suit by the doctrine of qualified immunity "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
"[I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city . . . The deployment of officers is particularly a governmental function . . . We conclude that the general deployment of police officers is a discretionary governmental action as a matter of law." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 545 A.2d 1185 (1988). "`The Superior Court has . . . determined that [t]he investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function.' (Internal quotation marks omitted.) Escobales v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 351), quoting Skrobacz v. Sweeney, 49 Conn.Sup. 15, 32, 858 A.2d 899 (2003); see also Mikita v. Barre, Superior Court, judicial district of New Haven, Docket No. CV 99 0430564 (May 22, 2001, Munro, J.) (defendants' actions were discretionary because `the facts related to the misidentification and subsequent detainment of plaintiff as alleged in the complaint required, in some measure, an exercise of judgment by the individual police officers'); Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147192 (January 2, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 671, 674) (`acts or omissions of police officers in the exercise of their duties are discretionary in nature'); Elinsky v. Marlene, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0557659 (October 31, 1997, Hale, J.T.R.) (individual defendant's alleged actions were discretionary because arresting plaintiff, submitting false statements in affidavit in support of arrest warrant, and improperly interviewing witnesses and investigating `require, in some measure, an exercise of judgment by the individual municipal employees'); Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 88 253464 (June 4, 1993, Fuller J.) [ 9 Conn. L. Rptr. 202] (specifically holding that an officer's decision to arrest is discretionary)." Thomes v. Duong, Superior Court, judicial district of Hartford, Docket No. CV 05 5001223 (March 12, 2008, Bentivegna, J.).
FALSE IMPRISONMENT (COUNT ONE)
In the first count of his complaint, the plaintiff brings a claim of false imprisonment. False imprisonment can be either a claim under § 1983 (See; Lounsbury v. Jeffries, 25 F.3d 131 (2d Cir. 1994)) or a common-law tort (See; Schnabel v. Tyler, 230 Conn. 735, 742, 646 A.2d 152 (1994) ("First, the issue of the application of federal qualified immunity to Tyler's § 1983 claims does not affect the judgments rendered on the common law causes of actions for false imprisonment, intentional infliction of emotional distress and abuse of process")). "Qualified immunity may serve as a defense to civil suits brought pursuant to § 1983, but not to common law actions predicated on intentional torts." Schnabel v. Tyler, supra, 230 Conn. 742. Because the plaintiff states that he was falsely imprisoned "depriving him of well established 4th and 14th amendment rights to the constitution of the United States due to racial profiling," it is assumed that he intended a § 1983 action.
42, U.S.C. § 1983 provides in relevant part: "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 . . ."
"Not every tort claim translates into a violation of federal rights, privileges and immunities. Government officials such as the police who perform discretionary functions are generally shielded from civil liability except where their conduct violates clearly established Constitutional rights of which a reasonable person would have known." Weyel v. Catania, Superior Court, judicial district of New Haven, Docket No. CV 94 0361996 (July 17, 1997, Barnett, J.). As previously noted, the court finds that the defendant officers had probable cause when arresting the plaintiff, even when the plaintiff's alleged confession is disregarded. While the plaintiff alleges that the defendant officers failed to fully investigate the matter by interviewing himself as well as the students, before arresting the plaintiff, the court finds that such actions were not necessary before arresting the plaintiff. Between the dispatcher's information regarding an assault, the officers' observations of the student's red cheek and bloody mouth, and the interviews of the school principal and security guard, which recounted the students' accounts of what happened, it is found that the officers had sufficient facts to establish probable cause. Consequently, the court finds that no clear constitutional violation occurred, and as such, the plaintiff has failed to present a viable § 1983 claim. It is for these reasons that the court denies the plaintiff's motion for summary judgment and simultaneously grants the defendants' motion for summary judgment as to count one.
EQUAL PROTECTION (COUNT FOUR)
In the fourth count of his complaint, the plaintiff alleges a fourteenth amendment equal protection violation. "The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike." Alexander v. Commissioner, 86 Conn.App. 677, 684, 862 A.2d 851 (2004), quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 786, 313 (1985). "A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Alexander v. Commissioner, supra, 86 Conn. 684.
Here, not only has the plaintiff failed to provide a scintilla of evidence which might demonstrate selective treatment, but he has also failed to provide any factual allegations regarding how he was treated differently. Nor has the plaintiff shown how the alleged selective treatment was caused by any racial animus on the defendants' part. Based upon the undisputed evidence, the plaintiff was not the subject of selective and unfair treatment based upon his race, but rather, he was arrested when the defendant officers had probable cause that he had assaulted one of his passengers. Because the plaintiff has failed to establish a valid claim for an equal protection violation based upon the evidence, and because the court finds that the defendants are entitled to qualified immunity, the plaintiff's motion for summary judgment should be denied and the defendants' motion for summary judgment should be granted as to the fourth count.
UNREASONABLE SEIZURE (COUNT FIVE) DUE PROCESS (COUNT SIX) CT Page 17711
The plaintiff alleges in his fifth and six counts that his arrest was an unreasonable seizure in violation of the fourth amendment of the U.S. Constitution and in violation of his due process rights under the fourteenth amendment. However, because the court finds that the defendant officers had probable cause when making the subject arrest, the defendants are entitled to qualified immunity. It is for these reasons that the court denies the plaintiff's summary judgment and grants the defendants' motion for summary judgment as to counts five and six.III. PLAINTIFF'S REMAINING CLAIMS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COUNT TWO)
To prevail on a claim of intentional infliction of emotional distress, "[i]t must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280 (2007).
While an arrest absent probable cause might be sufficiently outrageous to give rise to a claim for intentional infliction of emotional distress, the plaintiff has not offered any allegations that the arrest was any more outrageous than a standard arrest. The plaintiff merely alleges that he was handcuffed, escorted to a nearby cruiser, brought to the police station where he was charged and placed in a cell until the next morning, when he was brought to the courthouse and arraigned. The court finds that the defendants are entitled to summary judgment on the plaintiff's claim of intentional infliction of emotional distress, since it has determined that the defendant officers had probable cause when arresting the plaintiff. Because it is found that the defendant officers had probable cause when arresting the plaintiff, the defendants' conduct in making the arrest lacks the severity or outrageousness that a viable claim for intentional infliction of emotional distress requires. It is for these reasons that the plaintiff's motion for summary judgment is denied and the defendants' motion for summary judgment is granted as to count two.
See; Balogh v. Shelton, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 0067521 (March 18, 2002, Alander, J.) ( 31 Conn. L. Rptr. 566, 570) (defendants' motion for summary judgment denied in action for intentional infliction of emotional distress based on arrest of plaintiff without probable cause, use of excessive force, and filing of a false police report).
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (COUNT THREE)
"[I]n order to state . . . a claim [for negligent infliction of emotional distress], the plaintiff has the burden of pleading that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). "[R]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. Nevertheless, we recognize that the protection the law accords to the interest in one's peace of mind . . . must be limited so as not to open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law." (Citation omitted; internal quotation marks omitted.) Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
In Shattuck v. Stratford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 0080465 (March 22, 2005, Shluger, J.), the plaintiffs brought an action sounding in negligent infliction of emotional distress against Stratford police detective Arnold Blauvert, who arrested the plaintiffs after they allegedly falsified tax documents to obtain a reimbursement. Id. The court granted the defendants' motion for summary judgment. As to detective Blauvert, the court noted: "Similarly, it cannot be said that Detective Blauvert did anything but acted reasonably under the circumstances. He took a criminal complaint, investigated it, invited the suspects in to present their side of the story and present their supporting documents (which they declined to do). He conferred with his colleagues and superiors before he requested an arrest warrant from an assistant state's attorney which was ultimately signed by an assistant state's attorney and a judge of the Superior Court. Clearly, it cannot be said under any stretch of the imagination that their conduct created an unreasonable risk of causing emotional distress. Their actions were entirely reasonable." CT Page 17713 Id.
Because the court finds that the actions of Officer Blackmore were similarly reasonable and founded in probable cause, the defendants were not negligent in making their arrest. Further, the court finds that their conduct did not create an unreasonable risk of causing emotional distress. It is for these reasons that the court denies the plaintiff's motion for summary judgment and grants the defendants' motion for summary judgment as to the negligent infliction of emotional distress count.
MALICIOUS PROSECUTION (COUNT SEVEN)
An action for malicious prosecution requires that the plaintiff prove that "(1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff, (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." Giannamore v. Shevchuk, 108 Conn.App. 303, 310, 947 A.2d 1012 (2008). "Our Supreme Court has described these elements of the tort as the `stringent requirements' . . . Gallo v. Barile, 284 Conn. 459, 475, 935 A.2d 103 (2007); 52 Am. Jur.2d 143, supra, § 5 (`Actions for malicious prosecution are not favored by the courts. Thus, a malicious prosecution action is subject to limitations that are more stringent than those surrounding other kinds of actions, and recovery is allowed only if the requirements have been fully complied with')." (Internal quotation marks omitted.) Giannamore v. Shevchuk, supra, 108 Conn.App. 310-11.
The focus of inquiry is the third element of malicious prosecution; that is, whether the defendant acted without probable cause. "Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he has reasonable grounds for prosecuting an action . . . Mere conjecture or suspicion is insufficient . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable . . . Although want of probable cause is negative in character, the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding." (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 410-11 (2008). It is well established in our jurisprudence that "[t]he existence of probable cause is an absolute protection against an action for malicious prosecution . . ." (Internal quotation marks omitted.) Bhatia v. Debek, supra, 287 Conn. 411.
As the Bhatia Court makes clear, a finding of probable cause is an absolute protection against a malicious prosecution action. Because this court finds that Officer Blackmore acted with probable cause in making his arrest of the plaintiff, the plaintiff has failed to satisfy the third element of a malicious prosecution action. In order to successfully bring about a malicious prosecution action, it is not enough that the plaintiff was found not guilty on all counts in the subsequent trial; the plaintiff must also show that the defendant's arrest was completely devoid of probable cause and that the defendant's actions were motivated by malice. Consequently, the court denies the plaintiff's motion for summary judgment and grants the defendants' motion for summary judgment.
MUNICIPAL LIABILITY (COUNT EIGHT)
In the eighth count of his complaint, the plaintiff alleges that the malicious arrest and prosecution of the plaintiff initiated by the Defendant demonstrates a failure of the city of New Britain and its police chief to train officers to investigate and make warrantless arrests of minorities without racial prejudice. The case of Coletosh v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 97 0573462 (April 13, 1999, Wagner, J.T.R.) ( 24 Conn. L. Rptr. 399), is instructive. "The acts or omissions alleged in the plaintiff's complaint — negligent failure to instruct, supervise, control and discipline Hartford police officers — appear to be discretionary or governmental acts as a matter of law. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 179-80 (noting that the operation of a police department, including discipline of officers, is a discretionary, governmental function); Stiebitz v. Mahoney, 144 Conn. 443, 446, 448, 134 A.2d 71 (1957) (determining that discharge of duties as chief of police, a public officer, in appointing individuals to police force and suspending or disciplining them `required the use of a sound discretion' which would not subject chief to liability as long as discretion was exercised in good faith, with honest judgment and not maliciously or wantonly); Hubbard v. City of New Britain, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 469204 (January 30, 1996, Arena, J.) (Granting motion to strike complaint alleging negligent training of police officer regarding high speed chases because such action is clearly discretionary and, thus, protected by governmental immunity); Doe v. Nunes, Superior Court, judicial district of Hartford New Britain at New Britain, Docket No. 463832 (April 15, 1995, Handy, J.) (granting motion to strike complaint alleging negligent hiring, supervising and firing of officer because such actions are discretionary duties protected by governmental immunity); Cook v. City of Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 362482 (August 21, 1992, Aurigemma, J.) ( 7 C.S.C.R. 1096) [ 7 Conn. L. Rptr. 270] (`The act of training and supervising police officers is clearly a discretionary governmental function. Consideration of who to hire, how to train such people, and how to supervise police officers on the job are decisions requiring the use of judgment and discretion. A municipality cannot employ a standard list of actions which must be taken in utilizing its police department')." Id.
Since our sister courts have consistently held that the training of police officers is a matter of discretion, and because there has been no finding of wrongful behavior in the arrest of the plaintiff, the court finds that the city of New Britain is protected from a municipal liability claim, as they are entitled to the protection of governmental immunity. Consequently, the plaintiff's motion for summary judgment is denied and the defendants' motion for summary judgment is granted as to the municipal liability count.
STATUTORY COSTS UNDER C.G.S. § 52-251b (COUNT NINE)
Finally, the plaintiff alleges in his ninth count that because he was deprived of his civil rights, in violation of Connecticut General Statutes § 46a-58, he is entitled to double costs and reasonable attorneys fees under § 52-251b. Section 52-251b provides in relevant part: "(a) In any civil action to recover damages for injury to the person or to real or personal property arising out of a violation of section 46a-58, the court may allow the prevailing party his costs, together with a reasonable attorneys fee to be taxed by the court . . ." Because the court finds that the defendant officers acted with probable cause and that consequently, the plaintiff was not deprived of any civil rights, the court further finds that as a result, the plaintiff is not entitled to recover double damages and attorneys fees under § 52-251b.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for summary judgment is denied and the defendants' motion for summary judgment is granted as to all nine counts.