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Minto v. Connecticut State Police

United States District Court, D. Connecticut

September 30, 2016




         Plaintiff 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.[1] 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.



         Plaintiff 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.”[2] The following facts are based on the limited evidence available.

         On May 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.

         While 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.

         Local 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.

         Subsequent 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 30:2-32:18; 57:4-58:1.

         Prior 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.

         Defendant Herz now seeks summary judgment on Plaintiff's claim for intentional infliction of emotional distress.

         II. Legal Standard

         Summary 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).

         The 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).

         "As 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).

         The 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.

         The 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).

         In this 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 ...

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