United States District Court, D. Connecticut
GEORGE S. HARASZ, and DOUGLAS A. WIRTH, Plaintiffs,
JOETTE KATZ, ELIZABETH FERREIRA, TOWN OF GLASTONBURY, JAMES A. KENNEDY, and WILLIAM TRANTALIS, Defendants.
RULING ON MOTIONS TO DISMISS
CHARLES S. HAIGHT, JR. Senior United States District Judge
commenced this civil rights action in Connecticut Superior
Court. Defendants removed the case to this Court. Federal
question jurisdiction under 28 U.S.C. § 1331 stems from
Plaintiffs' claims that their rights conferred by the
United States Constitution were violated by Defendants'
conduct. Plaintiffs assert that Defendants acted under color
of state law, giving rise to this Court's original
subject matter jurisdiction under 42 U.S.C. § 1983 and
28 U.S.C. § 1331. Plaintiffs also allege state law
claims, which fall within this Court's pendent
jurisdiction. 28 U.S.C. § 1367.
Amended Complaint [Doc. 33] (sometimes hereinafter
"AC") is the operative pleading. All Defendants now
move to dismiss the Amended Complaint pursuant to
Rule12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiffs resist those motions. This Ruling resolves them.
the pertinent times, Plaintiffs George S. Harasz and Douglas
Wirth were citizens of the United States and the State of
Connecticut. They resided together in the Town of
Glastonbury, Connecticut. Plaintiffs advised the Connecticut
Department of Children and Families ("DCF") that
they were willing to take in foster children for adoption,
providing that none had past sex abuse issues. Over the
years, DCF was responsive to Plaintiffs' offer. Prior to
2011, Harasz and Wirth adopted nine children, who were born
during the years 1990 though 2006.
November 2011, Harasz and Wirth were arrested by the State of
Connecticut authorities on charges of misconduct with respect
to some of the adopted children in their care. Specifically,
the Plaintiffs were charged, inter alia, with sexual
assault, cruelty to persons, and risk of injury to a minor.
Plaintiffs denied all charges. In September 2014, following a
bench trial before a state court judge, Wirth was found not
guilty of all charges against him. In October 2014, Harasz
moved successfully for the dismissal of all charges against
him. Plaintiffs' state court exonerations on these
charges led directly to the federal constitutional and state
law claims they allege in the present action in this Court.
Joette Katz is the Commissioner of the Connecticut DCF,
having assumed that position in February 2011. Defendant
Elizabeth Ferreira was employed as a DCF social worker,
assigned to its Manchester, Connecticut office.
Town of Galstonbury, Connecticut is a municipality which
operates, directs and controls the Glastonbury Police
Department. Defendants James Kennedy and William Trantalis
are Glastonbury police officers.
Amended Complaint alleges eight counts, which may be
One: against Katz pursuant to 42 U.S.C. § 1983 based
upon failure to train and supervise (violations of Fourth and
Two: against Kennedy and Trantalis pursuant to 42 U.S.C.
§ 1983 based upon malicious prosecution (violations of
Fourth and Fourteenth Amendments).
Three: against Katz pursuant to 42 U.S.C. § 1983 based
upon malicious prosecution (violations of Fourth and
Four: against Ferreira, Kennedy and Trantalis pursuant to 42
U.S.C. § 1983 based upon fabrication of evidence
(violation of constitutional due process).
remaining counts purport to assert state law claims similar
to, if not exactly duplicative of, the first four federal
Five: against Kennedy and Trantalis based upon malicious
prosecution (violations of state law and constitution).
Six: against Katz based upon malicious prosecution (violation
of state tort law).
Seven: against Ferreira, Kennedy and Trantalis based upon
fabrication of evidence (violation of constitutional due
Eight: against Town of Glastonbury claiming that the Town
must indemnify Kennedy and Trantalis pursuant to the
applicable state statute.
individual Defendants are sued in their individual capacities
only. Appearing through different counsel, the DCF Defendants
and the Glastonbury Defendants move to dismiss all claims in
the Amended Complaint. Plaintiffs resist the motions.
factual recitations appearing in this Part are derived
principally from the Amended Complaint. However, the manner
in which that document is drafted requires this preliminary
consideration of the standard of review the Court must apply
on these defense motions to dismiss.
base their motions to dismiss upon Fed.R.Civ.P. 12(b)(6),
relief to which they are entitled if Plaintiffs' Amended
Complaint "fail[s] to state a claim upon which can be
granted." In deciding that motion, the district judge
looks to what the complaint says (or
"states") is the plaintiff's claim.
Evidence does not enter into Rule 12(b)(6) analysis. That
comes later, during Rule 56 summary judgment practice, after
completion of discovery.
trial judge's principal function on a defense motion to
dismiss is to read the complaint and decide if it states a
viable claim under governing law: a reading subject to
clearly defined instructions laid down by appellate
authority. The district judge must accept as true "all
of the factual allegations of the complaint." Hill
v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). However,
"the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions, " Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), or to "conclusory allegations or legal
conclusions masquerading as factual conclusions, " which
"will not suffice to prevent a motion to dismiss."
Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d
236, 240 (2d Cir. 2002) (citation and internal quotation
Rule 12(b)(6) motion to dismiss, the trial judge owes
deference to well-pleaded allegations of fact, but disregards
conclusions and arguments, no matter how the pleader captions
them. The Supreme Court made that limitation explicit in
Iqbal: Justice Kennedy's opinion gives district
judges practical advice: "[A] court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the presumption of truth." 556 U.S. at 679. The Court
added: "While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Id. Only "[w]hen there are
well-pleaded factual allegations" should a court
"assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief."
Id. at 679.
the manner in which the Plaintiffs at bar have composed their
Amended Complaint, I must keep Iqbal's
strictures very much in mind. Section III of the Amended
Complaint, imprecisely captioned "Statement of Facts,
" consists of 29 single-spaced pages and 163 numbered
paragraphs. The text contains a number of factual
allegations, some requiring a charitable reading to be
characterized as "well-pleaded." But the Amended
Complaint is also replete with conclusory, argumentative or
subjective assertions. For example: paragraph 89 of the
Amended Complaint, which purports to describe a forensic
interview of the child Doe #9 on August 11, 2011, states that
when Doe #9
refused to give the "disclosure" DCF needed in
order to prosecute Harasz and Wirth, the interviewer stepped
out of the room, to consult with the observers, DCF handlers
and Glastonbury Agent Kennedy. Then the interviewer came back
in the room and kept at Doe #9 with a repeated barrage of
bullying and leading questioning. In short, it was appalling.
would be hard pressed to find a well-pleaded factual
allegation in this passage. Indeed, the last quoted sentence
abandons any effort to plead them. The reader is told that
someone, seemingly not present during this incident, feels
that the events as described are "appalling."
Whether Harasz, Wirth, or their attorney, or all of them were
"appalled" is not clear, but it is of no
portions such as these, the "Amended Complaint" is
more a polemic than a pleading. For purposes of these motions
to dismiss, I accept the factual allegations in the complaint
and entirely disregard the polemic. That task has required a
considerable effort at editing. The "Allegations of
Fact" that follow in this Ruling are intended to
reflect, for the most part, the mandated distinction between
pleading and polemic. The Court may not have succeeded
entirely in separating wheat from chaff. At the end of the
day, the reader should disregard any chaff that survived the
process, as will the Court in making its Ruling.
Allegations of Fact
"Allegations of Fact" in this Part are adopted from
the numbered paragraphs in the "Statement of Facts"
in the Amended Complaint. Quotation marks in what follows
indicate quotations from the Amended Complaint.
number of years, Harasz and Wirth adopted nine children: John
Doe #1, born in 1990; John Doe #2, born in 1992; John Doe #3,
born in 1993; John Doe #4, born in 1995; John Doe #5, born in
2000; John Doe #6, born in 2003; John Doe #7, born in 2000;
John Doe #8, born in 2004; and John Doe #9, born in 2006.
allege that one of their adoptive children, Doe #4, suffered
from Post Traumatic Stress Disorder ("PTSD") and
Reactive Attachment Disorder ("RAD"), among other
diagnoses. RAD is a disorder associated with children who
have suffered abuse. RAD can result in attempts to sabotage
relationships through lying and other socially destructive
behaviors. In May 2005, Doe #4 was admitted to Saint Francis
Hospital due to auditory hallucinations. Doe #4 reported
hearing voices telling him to kill himself. During this
visit, Doe #4 was evaluated by a psychiatrist, Dr. Richard B.
Salder, who noted that: "The patient has been making
multiple false statements. The Patient reported his parents
to the Department of Children and Families, who found no
justification for the report."
in the spring, Doe #4 broke a window of a shed out of anger.
He was instructed to remove the rocks from the area using a
bucket and then to clean up the glass that fell between the
rocks. He told a neighbor that he was being made to carry
rocks as punishment for breaking a window, that he had been
locked out and left alone at the house, and that there was a
baby in the house unattended. The neighbor called the police,
but also told the police that Doe #4's story had changed.
The police returned Doe #4 to his house and found the family
at home and the doors unlocked. Plaintiffs also allege that
Doe #4 had a history of making false sexual allegations. In
2008, Doe #3 and Doe #4 made sexual allegations against a
dentist, which were ultimately found to be untrue.
2010, Doe #4 threatened suicide a second time, resulting in a
call to the police. DCF became involved; and Doe #4 stated
that while he did not want to stop seeing his fathers, he did
not want to live in the house anymore. DCF did not find any
evidence of neglect or abuse, but placed Doe #4 with a foster
family. In September 2010, Doe #4 began to have serious
behavioral issues in school, including aggressive behavior
against other students, stealing, and other disruptive
January 2011, DCF took custody of both Doe #3 and #4 because
they complained of neglect and mean treatment. At that time
there were no allegations of sexual abuse. In late January
2011, Doe #4 reportedly inappropriately touched a female
student. The vice-principal of the school told Plaintiff
Harasz that Doe #4 would have to be evaluated and might be
placed in an alternative learning environment.
the evaluation required by the school after Doe #4
inappropriately touched another student, Doe #4 made
allegations of sexual misconduct by Harasz. Shortly
thereafter, on February 8, 2011, DCF removed the five younger
boys from the Harasz-Wirth household (Does #5-#9). On that
same day, DCF interviewed the youngest children. During the
interview, Doe #9 did not disclose any inappropriate sexual
conduct by Harasz or Wirth and referred to his penis as his
"weiner." AC ¶ 47. Doe #2 and Doe #3 were also
interviewed at the local high school. Doe #2 stated that he
had never seen or experienced anything inappropriate in the
next day, DCF arranged for a forensic interview of Doe #4 at
the Children's Advocacy Center at St. Francis Hospital.
Plaintiffs allege that in this interview, Doe #4 made
numerous statements that were found to be inaccurate or not
credible. Doe #4 stated that he had previously disclosed the
alleged sexual abuse to a doctor; however, this generally was
found to not be credible. Additionally, Doe #4 stated that he
had never met his parents, that his mother was dead, and that
his father had been put to death in Connecticut for raping
women. These statements were untrue. Finally, Plaintiff
alleges that Doe #4 said that "the other day, when that
psychiatrist lady come and asked questions, I answered. But
she put words in my mouth." AC ¶ 54.
February 2011, Joette Katz became the Commissioner of the
Department of Children and Families. Plaintiffs allege that
Katz began to take an active role in the case after her
appointment. Plaintiffs further allege that Katz is
responsible for the failure to train DCF staff in recognizing
symptoms of RAD.
after Doe #4 made the allegations against Harasz and Wirth, a
therapist who had previously treated Doe #4 for RAD, Laurie
R. Landry, LMFT, LPC, called Elizabeth Ferreira, a social
worker with DCF, to express her view that Doe #4 was not
telling the truth in regards to the allegations. Landry
persisted, and was ultimately given a meeting with two
lawyers in the Manchester office of DCF; however, DCF still
pursued the allegations.
March, Sergeant William Trantalis of the Glastonbury Police
Department took a statement from Joanne Devine, a friend of
the Harasz-Wirth family. She stated that, in late February,
Doe #2 had contacted her because he was going to the theater
to meet Doe #4 and wanted a third party there given the
ongoing legal situation. Devine arrived, and went to the
Texas Roadhouse grill with Doe #2, Doe #4, and their
girlfriends. She reported that during the conversation, Doe
#4 was asked why he said "those things" about
Harasz and Wirth. Doe #4 reportedly responded that he did not
say "those things" (meaning the sexual assault
disclosure); rather Doe #3 had said those things. AC ¶
60. Devine left and Doe #2 then brought Doe #4 to the police
department to recant. However, Doe #4 did not mention
withdrawing the sexual assault allegations to the police
officer he spoke with; instead he asked about taking a
restraining order out on Doe #3. Sergeant Trantalis then
spoke with Doe #4, who said he went to the movies with
friends and saw Doe #2 there, but did not speak to him, and
then he went to the Texas Roadhouse grill with friends, but
again did not see Doe #2 there. The police officer tried to
verify with Texas Roadhouse using their surveillance system,
but the footage had already been overwritten. The report was
approved by Agent James Kennedy.
report also included a statement that "[p]revious to
this there was information provided through DCF that Doe #4
had recanted his allegations." AC ¶ 60. The report
provided no further detail on this statement. The police did
not interview Doe #4, his girlfriend, or Doe #2's
girlfriend. A further supplemental police report states,
"[o]n the morning of 3/21/11, I received a voice mail
message from [Doe #4]. [Doe #4] reiterates the fact that all
through this case he has told the truth and he does not want
to discuss it any further as he wants to move forward. Based
on this message, I will not be re-contacting him at this
point." AC ¶ 64. This report was also signed by
allege that in early March, Doe #9 stated that he was afraid
Doe #4 was going to kill him. It is unclear from the
Complaint who Doe #9 made this statement to. Three days
later, during a visit, Doe #4 was given alone time with Doe
#9 while taking Doe #9 to the car to put him in a car seat. A
week later, during a visit, Doe #9 made repeated attempts to
leave and said "Doe #4 was going to kill him"
because "he loves Dad and Daddy and doesn't love
[Doe #4] so much." AC ¶ 66. It is unclear from the
Complaint who Doe #9 was speaking to when he made these
mid-April, the prosecutor submitted to a Judge the arrest
warrant prepared by Sergeant Trantalis. The judge was
concerned that Doe #4 refused to be interviewed again; and on
May 5, 2011, the judge refused to sign the warrant and sent
it back to the prosecutor. The prosecutor then decided not to
pursue the case any further and not to resubmit the warrant.
In late July, the police also decided not to pursue Doe
#4's allegations of sexual abuse because they believed he
was not credible.
5, 2011, Doe #9 began to see Dr. Carol M. Kagel, Ed.D.,
psychologist, for therapy. He had ongoing sessions with her
and another therapist, Kathi Legare, LCSW, who is a trauma
therapist. At the time, Doe #9 was four years old and had
learning disabilities. Two months earlier, he received a goal
in his Individualized Education Plan, put into place by the
Glastonbury school system's special education department,
that he should be able to form a short sentence when speaking
early August 2011, DCF claimed Doe #9 made a disclosure of
sexual abuse to Dr. Carol Kagel. Shortly thereafter, a
forensic interview of Doe #9 was conducted. The forensic
interview was conducted at the Children's Advocacy Center
by Ann Glazer, who was hired by DCF. Plaintiffs allege, upon
information and belief,  that the interview was part of the
Multidisciplinary Team ("MDT") investigation, which
is and was in turn part of the Governor's Task Force on
Justice for Abused Children. The Task Force has established
best practices for forensic interviews. These best practices
suggest that the interview be conducted in a neutral,
fact-finding manner, anatomically detailed interview aides
such as dolls and drawings should be used with caution, and
any interviewer that uses dolls should have received training
in the use of anatomical tools. Plaintiff also alleges, upon
information and belief, that Trantalis, Kennedy, and Ferreira
were part of the MDT for this case, and the interview was set
up at their request.
was interviewed by Ann Glazer, and the interview was observed
by Ferreira, another DCF employee, Shannon Kiss, and Agent
Kennedy. The observers could communicate with Glazer through
an ear piece.
alleges that, though DCF claimed that the forensic interview
of Doe #9 supported a disclosure of sexual abuse, it in fact
did not. Plaintiff alleges that the recording of the DCF
interview does not support the statements that DCF claims Doe
#9 made, or the statements contained in the arrest warrants
prepared by Agent James Kennedy. Plaintiff alleges that Doe
#9 only said that his brother, Doe #5, touched him
inappropriately, and did not say anything about his father.
The interviewer then began to use anatomical dolls with Doe
#9, who was interested only in playing with the dolls.
the interview, Ferreira claimed that Doe #9 made a disclosure
to her in her office when they were alone. Plaintiff alleges
that DCF's policy is that a second witness be called in
during a disclosure. Ferreira allegedly wrote the report
after being the only witness to the statement.
also allege that the police made no effort to interview their
live-in housekeeper, Harasz's brother Richard, who lived
with the family for two years, Harasz's mother, who lived
with the family the entire time, or Wirth's parents, who
September 1, 2011, Agent Kennedy submitted and swore to a
revised arrest warrant and Sergeant Trantalis signed the
jurat. The arrest warrant included a paragraph on the
disclosure made to Dr. Kagel on August 3, 2011: "The
victim said, 'Daddy', [meaning Harasz] . . . 'put
it in my butt.' The victim indicated that it hurt. The
doctor asked what was put into his butt and the victim said,
'penis.' The victim went on to explain that he was
sleeping and screamed real loud." AC ¶ 108. It also
included descriptions of the August 2011 forensic interview
disclosure and the subsequent disclosure made to Ferreira.
November 30, 2011, Harasz and Wirth were arrested. Harasz was
charged with two counts of first-degree sexual assault,
aggravated first-degree sexual assault, three counts of risk
of injury to a minor, third-degree sexual assault,
fourth-degree sexual assault, and cruelty to persons. Wirth
was charged with third-degree sexual assault and risk of
injury to a minor. Wirth was put on unpaid administrative
leave by his employer, The Hartford insurance company, after
December 1, 2011, Doe #2 allegedly said that having lived
with Harasz and Wirth for over ten years, he had never
witnessed or experienced the abuse of which they were
accused. He also said that he and his siblings had been moved
around to various foster families, and that they were
suffering from RAD, which led to the allegations against
Harasz and Wirth. It is unclear from the Amended Complaint to
whom he made these statements.
December 2, 2011, Katz was quoted in the news as saying that
the allegations against Wirth and Harasz were "shocking
and appalling." AC ¶ 122. She also stated that she
"hope[d] that going forward, we can make horrible
incidents like this as rare as humanly possible."
Id. An article in the "Hartford
Courant" recounted that she said "[w]e
immediately removed the children from the home and ordered a
close examination of our involvement and ensured that we
would fully cooperate with police." AC ¶ 124. She
also stated that she "was horrified that adopted
children could be so terribly abused by adults responsible
for their care." Id.
because of concerns within the State's Attorney Office,
the state offered Harasz and Wirth a plea deal. Both would
plead guilty to risk of injury to a child, and would receive
a suspended sentence of five to ten years, be on probation
for five years, and would not be required to register on the
Sexual Offender Registry. Plaintiffs allege that DCF staff
"had a difficult time with the fact that there would be
no jail time." AC ¶ 129. Katz allegedly agreed and
made calls to the Hartford State's Attorney Gail Hardy
regarding the plea offer. Katz ultimately met with
State's Attorney Hardy on Monday, December 10, 2012.
Additionally, at some point during 2012, Harasz's and
Wirth's parental rights to the adoptive children were
terminated and the children were removed from their home.
plea hearing, held on January 4, 2013, the Assistant
State's Attorney David Zagaja said that the state pursued
a plea agreement because the State's Attorneys Office
thought they would not be successful at trial in establishing
many of the allegations. Katz attended this hearing.
Thereafter, at the sentencing hearing on April 5, 2013, the
plea deal was withdrawn because new charges were filed.
During the sentencing hearing, Doe #4 met privately with Katz
and made another disclosure. He claimed "that he had
scars on his legs from being held down, raped and cut with a
belt buckle, coat hanger and box cutter." AC ¶ 134.
Doe #2 also testified at the sentencing hearing and noted he
had not witnessed or experienced any neglect or abuse during
his time living in the Harasz-Wirth household. He also
testified that his brothers had RAD. Katz spoke at the
hearing, and stated that "the younger boys were starting
to make 'disclosures' to their therapists." AC
25, 2013, Katz emailed the Chief State's Attorney Kevin
Kane regarding additional information that "resulted in
an arrest warrant application that the state's attorney
never signed." AC ¶ 139. The additional warrants
would add charges of sexual assault in the first degree,
conspiracy to commit sexual assault in the first degree, and
two counts of risk of injury to a minor for Douglas Wirth.
The warrants would also add conspiracy to commit sexual
assault in the first degree and risk of injury to a minor for
George Harasz. The next day, Kane responded by stating that
the State's Attorney's Office would reconsider the
affidavits. Katz, through Matthew LaRock, Assistant Agency
Legal Director for DCF, followed up on July 2, 2013. On
September 9, 2013, the "Hartford Courant"
reported that the State's Attorney's Office had
rejected the new warrants because it was "not adequately
investigated." On November 17, 2013, a psychologist
employed by DCF, Dr. Suzanne Ciaramella, Psy. D., completed a
psychological testing evaluation of Doe #4. She found that
Doe #4 had a history of lying, inventing stories, and
embellishing stories. There was also concern that Doe #9 was
too fragile to testify, but DCF refused to agree to appoint
an independent guardian ad litem, citing Katz's
involvement in the case as sufficient to protect the
18, 2014, a plastic surgeon, Dr. Alan Babligan, M.D.,
examined the scars on Doe #4's legs, and determined that
they were stretch marks. The doctor concluded that the scars
could not have been the result of the abuse alleged by Doe #4
during the sentencing hearing on January 4, 2013.
September 9, 2014, the bench trial in State v. Wirth
began before Judge Dewey, a Connecticut judge. The trial
testimony concluded on September 17, 2014. One of the
witnesses was Dr. Candra Smith-Slatas, a pediatrician who had
treated the Harasz-Wirth family for ten years. She testified
that the scars on Doe #4 were stretch marks, rather than
scars from physical abuse. She also testified that she and
another doctor in her practice were not interviewed by DCF,
which was unusual given the allegations of sexual abuse.
September 29, 2014, Judge Dewey found Wirth not guilty of all
charges. She noted that right before trial, DCF handed over
between ten and twelve thousand documents to the court
pursuant to a subpoena, which contained exculpatory
information. The court gave defense counsel approximately two
thousand pages of documents. Additionally, more material was
revealed during trial. The Judge noted that neither
side's attorneys had access to the pre-adoption records
for Doe #4, which contained "extraordinarily exculpatory
information." AC ¶ 162. She ultimately found that
Doe #4 was not a credible witness. The Judge found that
"the complainant's disclosure was more opportunistic
than therapeutic." Id.
on October 14, 2014, Harasz filed a motion to dismiss and a
motion for a hearing in State v. Harasz. The motion
was filed on the grounds that there was insufficient evidence
to justify putting Harasz on trial, that there were
"defects in the institution of the prosecution and
failure to disclose exculpatory materials." AC ¶
163. On October 16, 2014, there was a pretrial hearing in
State v. Harasz. Dr. Leslie Lothstein, a forensic
psychologist interviewed Doe #9 and testified that
"[w]hatever memory [Doe #9] had has been influenced by
repeated narratives presented to him by forensic evaluations
and treatment. . . . It seemed to me that the ground rules
for the interview were compromising to any forensic approach,
asking direct questions to [Doe #9]." AC ¶ 164. On
October 28, 2014, all charges against Harasz were dismissed.
result of the allegations against them, Plaintiffs allege
that they lost their jobs, businesses, and children.
Additionally, they had to pay for costly legal services.
Wirth was terminated from his job as an IT Manager at The
Hartford. Wirth and Harasz also lost their dog breeding
business. Additionally, they used much of their savings to
pay for their defense, and they lost their home to
foreclosure in 2013.
Part partially reiterates the discussion appearing in Part
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) asks the court to dismiss counts in a complaint for
"failure to state a claim." Fed.R.Civ.P. 12(b)(6).
In analyzing whether a plaintiff has stated a claim upon
which relief can be granted, the court must accept as true
all facts alleged in the complaint. Hill, 657 F.3d
at 122. However, "the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions." Iqbal, 556
U.S. at 678. Moreover, "[c]onclusory allegations or
legal conclusions masquerading as factual conclusions will
not suffice to prevent a motion to dismiss."
Smith, 291 F.3d at 240 (citation and internal
quotation marks omitted). The Court must then determine if
the well-pleaded factual allegations give rise to a plausible
claim. Iqbal, 556 U.S. at 679.
claims set forth by the plaintiff in the complaint must be
facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim has "facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). A complaint does not need to put forth
"detailed factual allegations" to survive a
12(b)(6) motion, but must involve more than "unadorned,
Id. (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). Finally,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
assert that the Court should consider the video of the
forensic interview of Doe #9. That raises the question of the
extent to which a district court may consider evidence
outside the four corners of the complaint in evaluating a
motion to dismiss the complaint for failure to state a claim.
Rule 12(b)(6), the Court may only consider extrinsic
evidence, such as the video of the forensic interview of Doe
#9, in certain circumstances without converting the motion to
dismiss to a motion for summary judgment and giving both
parties further opportunity to submit evidence. See
Fed. R. Civ. P. 12(d); Global Network Commc'ns, Inc.
v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006). A
court may consider extrinsic information that is integral to
the Complaint, if the "plaintiff rel[ied] on the terms
and effect of [the] document in drafting the complaint . . .;
mere notice or possession is not enough." Global
Network, 458 F.3d at 156 (quoting Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002))
(internal quotation marks omitted). A court may also consider
extrinsic evidence where the document is subject to judicial
notice. Id. at 156.
argue that because they refer extensively to the forensic
interview in the Amended Complaint, the Court can review the
video. This argument is unpersuasive. Though the Amended
Complaint does reference and describe the video, it is not
something that the Court can take judicial notice of, nor is
it so integral to the Amended Complaint that the Amended
Complaint cannot be read or understood without also viewing
the video. Thus, the Court will not review the video at this
stage in the litigation.
next assert that the documents attached to Defendants'
Motions to Dismiss constitute an “inappropriate and an
attempt [sic] get highly prejudicial material before the
court in a sneaky fashion.” Doc. 37, at 5.
Defendants' Appendix included several orders of the
Juvenile Session of Superior Court regarding the juvenile
court proceedings. Defendants argue that these may be
considered because Plaintiffs reference and incorporate the
juvenile proceedings in their Amended Complaint. The Court
agrees. The Court may also take judicial notice of the orders
of another court. However, the Court will not consider any
findings of facts contained therein. See Cabrera v.
Schafer, 178 F.Supp.3d 69, 73 (E.D.N.Y. 2016).
Furthermore, these documents are not critical to the case,
and provide little relevant information that was not
contained in the Complaint. “The more critical an issue
is to the ultimate disposition of the case, the less
appropriate judicial notice becomes.” Pina v.
Henderson, 752 F.2d 47, 50 (2d Cir. 1985). Finally, it
is not disputed that the children were adjudicated neglected
and Harasz and Wirth's parental rights were terminated,
which is the primary value of the attached documents.
Plaintiffs do not challenge the other materials placed before
the Court, including the applications for arrest warrants for
Harasz and Wirth.
MALICIOUS PROSECUTION - DEFENDANT KATZ
Count Two of the Amended Complaint, Plaintiffs sue Kennedy
and Trantalis under 42 U.S.C. § 1983 for malicious
prosecution, in violation of the Fourth and Fourteenth
Amendments. Katz is sued for malicious prosecution under the
same provisions in Count Three. Plaintiffs also sue Kennedy
and Trantalis in Count Five, and Katz in Count Six, for
malicious prosecution under state law.
malicious prosecution claims against these three Defendants
will be considered separately. In this part of the Ruling, I
discuss the claim against Defendant Katz only.
Three of the Amended Complaint asserts a claim against Katz
for malicious prosecution in violation of the Fourth and
Fourteenth Amendments to the United States Constitution.
Count Six asserts a claim against Katz for malicious
prosecution in violation of Connecticut law.
the necessary elements of the tort of malicious prosecution,
a plaintiff must show that the defendant in question
initiated or procured the institution of criminal proceedings
against the plaintiff, which were subsequently terminated in
favor of the plaintiff. In the case at bar, it is undisputed
that criminal proceedings were commenced against Harasz and
Wirth, which were terminated in their favor: Wirth was found
not guilty after a bench trial before state court Judge
Dewey. The charges against Harasz were then dropped.
Katz asserts that it is not plausible that she was
responsible for initiating the criminal cases against these
Plaintiffs because at the time of initiation, Katz was the
Commissioner of the Connecticut Department of Children and
Families, and under the state statutory scheme responsibility
for initiating criminal prosecutions rests with the Office of
the State's Attorney.
aware of Commissioner Katz's public office, and sensible
of the importance of her position. But I cannot discern a
reason why Katz's public office, standing alone, should
insulate her from liability for malicious prosecution if her
conduct satisfies the elements of that tort. The brief for
this Defendant does not suggest why Katz's office should
confer such an immunity.
Katz from liability for malicious prosecution solely because
she is the Commissioner would be counterintuitive to a tort
whose boundaries courts paint with a relatively broad brush.
The first element of malicious prosecution is satisfied if a
plaintiff proves that "the defendant initiated or
procured the institution of criminal proceedings against
the plaintiff." Turner v. Boyle, 116 F.Supp.3d
58, 85 (D. Conn. 2015) (quoting McHale v. W.B.S.
Corp., 187 Conn. 444, 448 (1982)) (emphasis
added). The emphasized phrase demonstrates that to
be liable for malicious prosecution, an individual need not
personally initiate a criminal proceeding against
the plaintiff; he or she may procure that initiation
by someone else.
of course inherent in the ordinary functions of the head of
an agency responsible for the safety of children to
"initiate or procure" on occasion prosecutions by
other public servants of those charged with abusing children.
But the procuror of a prosecution and its prosecutor need not
both be public servants in order to hold the former liable
for a malicious prosecution. What counts for the tort
liability is what a defendant did, not what his office or job
was. Thus it is clear under the Connecticut law of malicious
prosecution that "a private individual may be held
liable for initiating a criminal proceeding 'if he has
insisted that the plaintiff should be prosecuted'; for
example, by bringing 'pressure of any kind to bear upon
the public officer's decision to commence the
prosecution.'" Turner, 116 F.Supp.3d at 85
(quoting McHale, 187 Conn. at 448). Moreover,
"[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 efficient cause of the arrest." Acevedo v.
Sklarz, 553 F.Supp.2d 164, 172 (D. Conn. 2008) (quoting
Zenik v. O'Brien, 137 Conn. 592, 596 (1951))
(internal quotation marks omitted).
extent that defense counsel contend that Katz cannot be
liable for malicious prosecution solely as a matter of law
because she was Commissioner of the DCF, the contention has
no substance. Katz's office as Commissioner qua
office is not relevant to her liability vel non for
malicious prosecution of these Plaintiffs. The decisive
question is whether Plaintiffs' Amended Complaint
sufficiently alleges a plausible claim that Katz's
conduct vis-a-vis Plaintiffs amounted to their
malicious prosecution by Katz. I turn to that question.
Alleged Malice on the Part of Katz
the analysis of Plaintiffs' malicious prosecution claim
against Katz by taking judicial notice that the Connecticut
Senate confirmed her as Commissioner of the Department of
Children and Families by a unanimous vote on February 4,
2011. Prior to that date, Katz had no authority
over or responsibility for any action taken by any DCF staff
with respect to these Plaintiffs or indeed anyone else.
Governor Malloy ...