United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING SUMMARY JUDGMENT OF
PLAINTIFF'S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS [DKT. NO. 25]
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
Mark Minto (“Minto” or “Plaintiff”)
brought certain claims stemming from Minto's arrest and
the seizure of his weapon, weapon permit, and special police
powers, following an alteration with Jennifer Gruszczak.
After Defendant's Motion to Dismiss, Plaintiff's
remaining claims are Count Two, alleging unlawful seizure of
Plaintiff's firearm; Count Five, limited to alleging a
procedural due process violation with regard to revocation of
Plaintiff's special police powers and identification
card; and Count Seven, alleging intentional infliction of
emotional distress. Defendants Connecticut State Police, Major
Sarah Brusco, Sergeant Claudia Tino-Tomassetti, Sergeant
Michael P. Kostrzewa, and Trooper Matthew Herz
(“Defendants”) moved for summary judgment on
Plaintiff's Complaint Count Seven, Intentional Infliction
of Emotional Distress claim. For the reasons set forth below,
Defendants' motion is GRANTED.
brings a claim of intentional infliction of emotional
distress against Defendant Trooper Matthew Herz
(“Herz”). [Dkt. No. 1 (“Complaint”)
at 18-19]. His claim stems from his arrest by Hertz on May
29, 2012 following a road rage incident. Complaint at 3-7.
Plaintiff cites exclusively to Defendants' summary
judgment exhibits in opposition to Defendants' motion for
summary judgment, referenced as “Exhibit 1” and
“Exhibit 2.” The following facts are based on the
limited evidence available.
29, 2012, Plaintiff was driving home on Route 9 when he
observed the vehicle in front of him “sporadically and
repeatedly” apply its brakes, causing Plaintiff to
brake to avoid a rear-end collision. Ex. 2 at 22. Plaintiff
attempted to pass the vehicle illegally on the right, but the
operator, Jennifer Gruszczak, increased speed, preventing him
from passing. Id. at 22. At that point, Plaintiff
observed a young child in the rear passenger seat of the
other vehicle, which continued moving in an erratic manner,
increasing and decreasing speeds and pulling alongside of a
box truck traveling in the right lane to prevent the
Plaintiff from passing illegally on the right. Id.
at 22. The operator of the other vehicle made an obscene
gesture at the Plaintiff through her sunroof. Ex. 1 at 3.
After observing this gesture, the Plaintiff concluded the
driver was under the influence of drugs and/or alcohol and
decided to phone 911 to inform police of her actions.
Id. at 3. Plaintiff called 911 several times, but
the calls were dropped. Ex. 2 at 23. Plaintiff called 911 a
final time and made contact. Id. at 23.
the 911 operator was on the telephone, Plaintiff continued to
pursue the other vehicle, which exited the highway and
proceeded to a condominium complex where the driver parked
and exited her vehicle. Id. at 23. Plaintiff parked
his vehicle near the other vehicle and exited his vehicle in
order relay to the 911 operator his location and the license
plate number of the other vehicle. Id. at 23. While
he was speaking to the 911 operator, the other driver
confronted Plaintiff and asked him why he was following her
so closely. Id. at 24. The 911 operator Plaintiff
not to engage the other driver, to return to his vehicle and
wait for police to arrive. Id. at 24. Plaintiff
returned to his vehicle and the other driver returned to her
vehicle and drove away. Id. at 24.
law enforcement officers soon arrived on the scene.
Id. at 24. Two State Troopers arrived shortly
thereafter, including Defendant Herz. Id. at 24. The
State Troopers summoned Plaintiff's supervisor, Sergeant
John Rumley to respond to the scene, and he did so as well.
Id. at 25. Defendant Herz took written statements
from both the Plaintiff and the driver of the other vehicle.
Ex. 1 at 2-3. Defendant Herz observed that Plaintiff was
wearing a police uniform and badge. Id. at 2. He
also learned that the Plaintiff was a police officer for the
Department of Mental Health and Addiction Services stationed
at Connecticut Valley Hospital with police powers exercisable
on the property of the Hospital and that Plaintiff was en
route from work to his home when the incident occurred.
Id. at 2. After questioning and taking statements
from both the Plaintiff and the other driver, the Defendant
cited the Plaintiff for traffic violations, charged him with
several criminal offenses, seized his firearm, and took him
into custody. Id. at 3-4; Ex. 2 at 54-55. In
particular, the Defendant issued a misdemeanor summons to the
Plaintiff for Failing to Drive a Reasonable Distance Apart,
Intent to Harass or Intimidate, Criminal Impersonation of a
Police Officer, and Breach of the Peace in the Second Degree.
Id. at 1. Defendant Herz did not cite or charge the
other driver with any violations or offenses. Ex. 1 at 3-4;
Ex. 2 at 54.
to the incident, Plaintiff was placed on unpaid leave. Ex. 2
at 60 (unpaid leave). In the weeks following the incident,
Plaintiff went to therapy three to four times, once per week,
for 40 minutes to an hour each time. Ex. 2 at 30:2-32:18;
57:4-58:1. Defendant was not diagnosed with severe emotional
distress, a sleep disorder, a mental disorder, or any other
diagnosis as a result of the incident. Id. at
to May 29, 2012, Plaintiff and Defendant Herz had never met.
Id. at 51:18-20. Plaintiff does not claim that the
Defendant said anything on May 29, 2012 suggestive of
personal animus. See generally, Id.
Herz now seeks summary judgment on Plaintiff's claim for
intentional infliction of emotional distress.
judgment is governed by Federal Rule of Civil Procedure
56(a), which provides that “the court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the
record the reasons for granting or denying the motion.”
A party asserting that a fact is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. Rule Civ. P. 56(c)(1). The Court need consider only the
cited materials, but it may consider other materials in the
record. Fed. Rule Civ. P. 56(c)(3). If a party fails to
support an assertion of fact with admissible evidence the
court may “grant summary judgment if the motion and
supporting materials - including the facts considered
undisputed - show that the movant is entitled to it.”
Fed. Rule Civ. P. 56(e)(3).
party moving for summary judgment bears the burden of proving
that no factual issues exist. Vivenzio v. City of
Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In
determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual
inferences that could be drawn in favor of the party against
whom summary judgment is sought.” Id. at 106
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (2d Cir. 2010); Matsushita Electric
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986)). “If there is any evidence in the record that
could reasonably support a jury's verdict for the
nonmoving party, summary judgment must be denied.”
Am. Home Assurance Co. v. Hapag Lloyd Container Linie,
GmbH, 446 F.3d 313, 315-16 (2d Cir.2006) (internal
quotation marks and citation omitted). In addition,
“[a] party opposing summary judgment cannot defeat the
motion by relying on the allegations in his pleading, or on
conclusory statements, or on mere assertions that affidavits
supporting the motion are not credible. At the summary
judgment stage of the proceeding, plaintiffs are required to
present admissible evidence in support of their allegations;
allegations alone, without evidence to back them up, are not
sufficient.” Welch-Rubin v. Sandals Corp.,
No.3:03cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004)
(internal quotation marks and citations omitted).
to materiality, the substantive law will identify which facts
are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted."
Anderson, 477 U.S. at 248 (1986). More important for
present purposes, summary judgment will not lie if the
dispute about a material fact is “genuine, ” that
is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Id. at
248. “[T]he inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus.
Co., 475 U.S. at 587-588 (citing U.S. v. Diebold,
Inc., 369 U.S. 654, 655 (1962)). However, a party
opposing summary judgment “may not rest upon the mere
allegations or denials of the adverse party's
pleading.” Lujan v. Nat'l Wildlife Fed.,
497 U.S. 871, 884 (1990).
Local Rules for the District of Connecticut require a party
moving for summary judgment to attach a “Local Rule
56(a)1 Statement” to the motion. D. Conn. L. Civ. R.
56(a)1. A Local Rule 56(a)1 Statement should “set [ ]
forth in separately numbered paragraphs . . . a concise
statement of each material fact as to which the moving party
contends there is no genuine issue to be tried.”
Id. Critically, each paragraph must contain specific
citation(s) “to (1) the affidavit of a witness
competent to testify as to the facts at trial and/or (2)
evidence that would be admissible at trial.”
Id. In responding to the motion, the non-movant must
also submit a “Local Rule 56(a)2 Statement”
admitting or denying the facts in the movant's Local Rule
56(a)1 Statement and providing a list of disputed material
facts with specific citations to the supporting evidence. D.
Conn. L. Civ. R. 56(a)2.
Plaintiff fails to comply with the rules by citing to
admissible evidence and instead cites to the complaint in his
memorandum in opposition to summary judgment, and to what
appear to be Defendants' 56(a)(1) exhibits in support of
his Rule 56(a)(2) statement. Plaintiff attaches no exhibits
to his Rule 56(a)(2) statement. “[F]ailure to provide
specific citations to evidence in the record as required by
this Local Rule may result in the court deeming certain facts
that are supported by the evidence admitted in accordance
with rule 56(a)(1) . . .” D. Conn. L. Civ. R. 56(a)(3).
The Second Circuit has indicated that district courts have
discretion in applying their local court rules. See Holtz
v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(citation omitted); see also Suares v. Cityscape Tours,
Inc., 603 F.App'x 16, 17 (2d Cir. 2015) (affirming a
district court's denial of summary judgment based on
failure to comply with court's local rules).
case, the Court can fairly and completely adjudicate summary
judgment in this matter without full compliance with the
District of Connecticut's Local Rules. Where parties
dispute what facts were known to police officers at
the time an individual was arrested, resolution is for the
jury; where, as here, the parties do not dispute what facts
were known to Defendants but dispute whether those facts
support probable cause, the disposition is a matter of law.
Walczyk v. Rio,496 F.3d 139, 157 (2d Cir.2007)
(“It has long been recognized that, where there is no
dispute as to what facts were relied on to demonstrate