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Raffone v. Weihe

United States District Court, D. Connecticut

May 9, 2016

PASQUALE RAFFONE, Plaintiff,
v.
EDWARD WEIHE, LANCE NEWKIRCHEN, and FAIRFIELD POLICE DEPARTMENT, Defendants

MEMORANDUM OF DECISION

Vanessa L. Bryant, United States District Judge.

Pasquale Raffone, pro se and incarcerated, brings this civil rights action against two police officers and a police department. He conclusorily asserts that the police officers conducted an unlawful search and seizure and later perjured themselves at an in rem proceeding. Defendants move to dismiss on the basis that the police officers are absolutely immune for their testimony, that the police department is a non-suable entity, and that the claims for unlawful search and seizure are time-barred. Raffone moves to add another officer (based on his purportedly false testimony) and an assistant state’s attorney (for unarticulated reasons). As explained below, the Court GRANTS the motion to dismiss and DENIES the motion to amend.

Factual and Procedural Background

In a complaint dated June 10, 2015, Raffone brought an action in Connecticut Superior Court against Officer Edward Weihe, Officer Lance Newkirchen, and Fairfield Police Department (collectively, “Defendants”). ECF No. 1-2. The complaint contains the following allegations. On May 19, 2012, Officer Newkirchen “provided false information within his police report stating, ‘this plaintiff admitted to using a bogus receipt to get items, ’” but Raffone never admitted to doing so. Id. at ¶ 4. On the same date, Officers Weihe and Newkirchen conducted “an illegal search and seizure” of Raffone’s vehicle. Id. at ¶¶ 1, 6. In 2014, Officer Weihe “gave false testimony at [Raffone’s] in rem hearing regarding the search of [his] vehicle within the order of events as they actually occurred.” Id. at ¶ 3. At the same hearing, Officer Newkirchen “gave false testimony as to confessing to the alleged shoplifting incident by [Raffone], ” which resulted in Raffone’s vehicle being turned over to the Fairfield Police Department. Id. at ¶¶ 5, 7. The judgment is being appealed. Id. at ¶ 8. Raffone seeks only monetary damages. Id. at 3 (.pdf pagination).

Defendants properly removed here and now move to dismiss for failure to state a claim. See ECF Nos. 1 (Notice of Removal); 20 (Mot.). Defendants raise the following three arguments. ECF No. 20-1. Defendants Weihe and Newkirchen are absolutely immune from damages based on their testimony during the in rem proceeding. Id. at 7-9. The Fairfield Police Department is a non-suable entity. Id. at 4-5. The remaining claims for unlawful search and seizure are barred by the three-year limitations period. Id. at 5-7.

Raffone opposes the first ground for dismissal on the basis that the doctrine of absolute immunity applies only to criminal trials. ECF No. 26-1 at 5-6. Raffone does not oppose the second ground and states that he reserves the right to refile an action against the Town of Fairfield. Id. at 9. Raffone challenges the third basis for dismissal on two grounds. Id. at 2-5. He first challenges the date on which the cause of action accrued, arguing that it accrued when he learned that the search and seizure were unlawful. Id. at 4-5. He also seeks equitable tolling on the following grounds: the existence of two prior pending actions, his ignorance of the law, and Defendants’ fraudulent concealment.[1] Id. at 2-5.

In a filing dated more than 21 days after Defendants moved to dismiss, Raffone moves to add two new parties: Sargeant Fred Hine, based on his “perjured testimony” during the in rem proceedings, and Assistant State’s Attorney Tatiana Messina, for unexplained reasons. ECF No. 38. In Raffone’s sur-reply, he alleges that Messina should be held liable for failing to object to the officers’ false testimonies. ECF No. 36. Defendants oppose. ECF No. 41 (Opp’n).

Legal Discussion

I. Subject-Matter Jurisdiction A defense based on common law immunity is properly asserted pursuant to Federal Rule of Civil Procedure 12(b)(1). See Giammatteo v. Newton, 452 F. App’x 24, 28 (2d Cir. 2011) (reviewing prosecutorial immunity defense). When ruling on a Rule 12(b)(1) motion, a court may consider evidence outside the pleadings. Dukes v. New York City Employees’ Ret. Sys., & Bd. of Trustees, 581 F. App’x 81, 82 (2d Cir. 2014) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). A defendant bears “the burden of showing that an exemption from personal liability is justified . . . by a tradition of common law practice existing at the time of the enactment of Section 1983.” Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988) (citing Pulliam v. Allen, 466 U.S. 522, 529 (1984); Tower v. Glover, 467 U.S. 914, 920 (1984)).

Raffone seeks monetary damages from Officers Weihe and Newkirchen for providing false testimony during an in rem proceeding. ECF No. 1-2 at ¶¶ 3, 5. Raffone correctly observes that Briscoe v. LaHue, 460 U.S. 325 (1983), addressed criminal proceedings, but its reasoning has far greater implications. The Supreme Court reasoned that “[t]he immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.” Id. at 330-31 (emphasis added). And the concern animating this common law immunity-that is, “the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible, ” id. at 332-33-is equally applicable to all judicial proceedings. See Rolon v. Henneman, 517 F.3d 140, 145 (2d Cir. 2008) (“The policy rationale for witness immunity, as articulated by the Supreme Court in Briscoe, applies with equal or near equal force in the arbitral context.”). This immunity thus applies to civil as well as criminal proceedings. Bilal v. Wolf, 2009 WL 1871676, at *7 (N.D. Ill. June 25, 2009).

The claims for false testimony also implicate the Rooker-Feldman doctrine, which is “a bundle of rules named after the Supreme Court’s decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), limiting federal appellate jurisdiction over state court decisions to the United States Supreme Court.” Canning v. Admin. for Children’s Servs., 588 F. App’x 48, 49 (2d Cir. 2014) (citation and internal quotation marks omitted). It bars a plaintiff from seeking relief in federal court when he “(1) lost in state court, (2) seeks redress for injuries caused by a state court judgment, (3) invites district court review and rejection of that judgment, and (4) files suit after judgment has been entered in the parallel state proceedings.” Id. The doctrine may be raised sua sponte because it goes to subject-matter jurisdiction. Omotosho v. Freeman Inv. & Loan, 2016 WL 1072208, at *4 (D. Conn. Mar. 9, 2016).

Rooker-Feldman applies. Raffone lost a property interest in the vehicle during in rem proceeding. Id. at ¶ 7. He now seeks monetary relief based on the “resulting in the loss of [the] vehicle” and the “value of vehicle and rental fees.” Id. at 3 (.pdf pagination). Raffone invites review and rejection of the judgment in the in rem proceeding because “the relief sought may be granted only on the federal court’s finding that the state court determined the issues before it erroneously.” Inkel v. Connecticut Dep’t of Children & Families, 421 F.Supp.2d 513, 522 (D. Conn. 2006) (addressing false testimony claims). Raffone filed this action ten months after appealing, which Raffone could only have done after the entry of a final judgment. See State v. Curcio, 191 Conn. 27, 30 (1983) (“The statutory right to appeal is limited to appeals by aggrieved parties from final judgments.”).

II. Failure to State a Claim

When reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court “accept[s] all factual allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.” Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the ...


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