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Harasz v. Katz

United States District Court, D. Connecticut

March 3, 2017



          CHARLES S. HAIGHT, JR. Senior United States District Judge

         Plaintiffs 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.

         An 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.


         During 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.

         In 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.

         Defendant 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.

         Defendant 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.

         The Amended Complaint alleges eight counts, which may be summarized thus:

         Count One: against Katz pursuant to 42 U.S.C. § 1983 based upon failure to train and supervise (violations of Fourth and Fourteenth Amendments).

         Count Two: against Kennedy and Trantalis pursuant to 42 U.S.C. § 1983 based upon malicious prosecution (violations of Fourth and Fourteenth Amendments).

         Count Three: against Katz pursuant to 42 U.S.C. § 1983 based upon malicious prosecution (violations of Fourth and Fourteenth Amendments).

         Count Four: against Ferreira, Kennedy and Trantalis pursuant to 42 U.S.C. § 1983 based upon fabrication of evidence (violation of constitutional due process).

         The remaining counts purport to assert state law claims similar to, if not exactly duplicative of, the first four federal claims.

         Count Five: against Kennedy and Trantalis based upon malicious prosecution (violations of state law and constitution).

         Count Six: against Katz based upon malicious prosecution (violation of state tort law).

         Count Seven: against Ferreira, Kennedy and Trantalis based upon fabrication of evidence (violation of constitutional due process).

         Count Eight: against Town of Glastonbury claiming that the Town must indemnify Kennedy and Trantalis pursuant to the applicable state statute.

         The 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.


         A. Preliminary Considerations

         The 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.

         Defendants 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.

         The 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 marks omitted).

         On a 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.

         Given 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.

         One 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 conceivable consequence.

         In 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.

         B. Allegations of Fact

         The "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.

         Over a 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.

         Plaintiffs 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."

         Earlier 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.

         In 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 conduct.

         In 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.

         During 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 household.

         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.

         In 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.

         Soon 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.

         In 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.

         The 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 Trantalis.

         Plaintiffs 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 statements.

         In 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.

         On May 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 to peers.

         In 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, [1] 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.

         Doe #9 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.

         Plaintiff 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.

         After 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.

         Plaintiffs 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 visited frequently.

         On 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.

         On 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 his arrest.

         On 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.

         On 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.

         Initially, 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.

         At the 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 ¶ 136.

         On June 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 child's interests.

         On July 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.

         On 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.

         On 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.

         Thereafter, 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.

         As a 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.


         This Part partially reiterates the discussion appearing in Part II.A.

         A 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.

         Furthermore, 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, the-defendant-unlawfully-harmed-me accusation[s]." 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 suffice." Id.


         Plaintiffs 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.

         Under 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.

         Plaintiffs 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.

         Plaintiffs 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.[2]


         In 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.

         The 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.

         A. Preliminary Considerations

         Count 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.

         Among 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.

         Defendant 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.

         I am 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.

         Insulating 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).[3] 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.

         It is 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).

         To the 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.

         B. Alleged Malice on the Part of Katz

         I begin 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.[4] 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 ...

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