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Nowacki v. Town of New Canaan

United States District Court, D. Connecticut

March 28, 2017

TOWN OF NEW CANAAN, et al., Defendants.


          Jeffrey Alker Meyer United States District Judge

         Because there are no grounds for plaintiff's federal claims, the Court lacks federal-question jurisdiction, and I will decline to exercise supplemental jurisdiction over plaintiff's numerous state law claims. Plaintiff may consider whether to seek further relief in the state courts of Connecticut.


         Plaintiff's second amended complaint (Doc. #94) and its attached exhibits set forth the following facts, which are accepted as true for purposes of this motion to dismiss. Many of these facts are also set forth in the state appellate court decision in plaintiff's criminal case. See State v. Nowacki, 155 Conn.App. 758 (2015) (attached to complaint as Doc. #95-3).

         Beginning in late 2009, plaintiff and his ex-wife, Suzanne Sullivan, employed a nanny, Katelyn Waters, to provide childcare for their two children. In December 2009, plaintiff and Waters (but not Sullivan) signed an agreement detailing the terms of Waters's employment. See Doc. #96-12. Under the contract, Waters was provided with a leased car, paid for by plaintiff and Sullivan.

         On February 21, 2010, plaintiff and Waters had a dispute about the leased car, which needed its tires replaced. Plaintiff wanted to transfer the tires from his own car (a similar model) onto the leased car, and then put new tires on his own car. Plaintiff tried to coordinate with Waters to accomplish the tire exchange. According to plaintiff, Waters refused to cooperate, despite plaintiff's attempts to coordinate with her by phone. Plaintiff then drove to the location where Waters was working at her second job. He informed Waters that she had a responsibility to maintain the leased car under the employment agreement. Because Waters still refused to cooperate, plaintiff took the leased car back to his house. At the time, he did not realize that the car contained some of Waters's personal property, including her wallet.

         That night, Sullivan and Waters contacted the New Canaan Police Department and requested a police escort to retrieve Waters's property from the leased car. Two officers accompanied Waters and Sullivan to plaintiff's house. The officers retrieved Waters's property from the car and returned the property to Waters, who was waiting with Sullivan outside the house.

         The next morning, February 22, 2010, plaintiff followed Waters, Sullivan, and plaintiff's daughter on their drive to school, in another unsuccessful effort to coordinate the tire exchange with Waters. A few hours later, plaintiff drove to Sullivan's house to return one of the cars to Waters. This prompted Waters to call the police, and defendant Kevin Casey, an New Canaan police officer, responded to the call. Officer Casey warned plaintiff not to contact Sullivan or Waters again by phone, email, or in person, or he would be arrested.[1]

         Officer Casey applied for an arrest warrant in response to the events of February 22, seeking to arrest plaintiff for disorderly conduct in violation of Conn. Gen. Stat. § 53a-182 and illegal use of a motor vehicle with intent to harass or intimidate in violation of Conn. Gen. Stat. § 14-240a. Doc. #97-1 at 2-5. The arrest warrant was signed and approved by a judge of the Connecticut Superior Court. Id. at 2. Plaintiff was arrested pursuant to this warrant on February 24, 2010. Doc. #95-1 at 12.

         In the meantime, on the evening of February 23, 2010, plaintiff had emailed Waters. In the email, he informed her that she was violating the terms of her employment agreement. He threatened legal action against her due to her violation of the agreement, and he warned her that the statement she gave to police the previous day could qualify as perjury. See Doc. #95-1 at 4. The next day, Waters contacted the police and submitted a written statement stating that “I received an email from [plaintiff] threatening me” and that she had been unable to sleep because she “was in fear of what [plaintiff] would do next.” Id. at 5.

         On the basis of this new information, the police decided to pursue a new arrest warrant. The police submitted an application for a warrant to arrest plaintiff on a charge of harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183(a)(2).[2] Attached to the arrest warrant application was a copy of the email that plaintiff sent to Waters. The arrest warrant was signed and approved by a judge of the Connecticut Superior Court. Doc. #95-1 at 1-6. Plaintiff was arrested pursuant to this warrant on February 25, 2010.

         A state court judge entered a formal protective order against plaintiff on February 24, 2010. The protective order barred plaintiff from contacting Sullivan in any manner, including by written, electronic, or telephone contact. Docs. #97-5 at 12-13; #97-10 (modifying protective order with respect to plaintiff's contact with his children). On June 15, 2010, plaintiff violated the protective order when he copied Sullivan on an email that he sent expressing his views about some kind of a dispute involving the Freedom of Information Commission. See Nowacki, 155 Conn.App. at 764 n.4. The email was addressed to an attorney for the Town of Darien, with “cc” to Sullivan, as well as to the editor of the Darien Times newspaper. The email did not concern or relate to Sullivan, although Sullivan would later testify that it was routine for plaintiff to send her emails concerning subjects not related to her. See id. at 764.

         Sullivan told the police that plaintiff had contacted her, and the police again applied for an arrest warrant to charge plaintiff with criminal violation of a protective order, in violation of Conn. Gen. Stat. § 53a-223.[3] The police officer's application for the arrest warrant described the information received from Sullivan and included a copy of the email that had been sent by plaintiff to Sullivan. Doc. #95-4 at 2-3, 7.

         The application further stated that “this has been an ongoing issue between Nowacki and Sullivan and this is the 8th family dispute we have investigated since 2005.” Id. at 3. According to the application, Sullivan told the police that she had been in family court with plaintiff that day and that a judge had denied plaintiff's request for unsupervised visitation with his children on Father's Day. Sullivan said that plaintiff was “visibly agitated in court, ” and “[s]he further stated that his overall demeanor is becoming more aggressive and she is concerned with Father's Day approaching.” Ibid. As with the previous warrants, this arrest warrant was approved and signed by a Connecticut Superior Court judge.

         The police arrested plaintiff pursuant to the arrest warrant on June 17, 2010. According to plaintiff, he told the police upon his arrest that he had accidentally copied Sullivan on his email, when in fact he had meant to copy a different person-Susan Schultz, a reporter for a local newspaper-whose name appeared alphabetically next to Sullivan's on plaintiff's drop-down menu for email contacts. See Nowacki, 155 Conn.App. at 766; Doc. #95-4 at 4 (“Notice of Rights” form with plaintiff's explanation about his mistake); Doc. #95-4 at 33-34 (plaintiff's letter of complaint to the New Canaan police asserting that he was arrested on the basis of his mistake in sending the email to Sullivan rather than to Schultz). Plaintiff's explanation was evidently not credited by the police.

         In short, plaintiff was arrested three times in 2010. Each time, he was arrested pursuant to an arrest warrant that was supported by an affidavit of a New Canaan police officer and that was approved by a state court judge. First, he was arrested on February 24, 2010, for disorderly conduct and illegal use of a motor vehicle with intent to harass. Second, he was arrested on February 25, 2010, for harassment in the second degree. Third, he was arrested on June 17, 2010, for criminal violation of a protective order.

         All four of the underlying charges were eventually consolidated in a single charging information, and plaintiff went to trial on all four charges in January 2012. The trial jury acquitted plaintiff on the charges of disorderly conduct and illegal use of a motor vehicle with intent to harass; on the other hand, the trial jury rendered guilty verdicts against plaintiff for harassment and criminal violation of a protective order. Doc. #96-3 at 4-5; Nowacki, 155 Conn.App. at 764.

         Plaintiff was sentenced in principal part to a term of five years of incarceration, suspended after 15 months. Plaintiff served about three weeks of this sentence before being released on bond pending appeal in late May or early June 2012. Doc. #94 at 45-46.

         Nearly three years later, plaintiff largely won his appeal before the Connecticut Appellate Court on March 10, 2015. As to the charge of criminal violation of a protective order, the Appellate Court initially ruled that the evidence was sufficient to support the charge. Notwithstanding plaintiff's claim that he had mistakenly sent the email to Sullivan (rather than Schultz), the Appellate Court ruled that the evidence of plaintiff's intent to send the email to Sullivan was sufficient in light of Sullivan's testimony that plaintiff often inundated her with hundreds of emails, and because a “reasonable juror could also credit Sullivan's testimony that frequently those e-mails were about matters that had nothing to do with her and that these emails caused her severe distress.” Nowacki, 155 Conn.App. at 767. Despite the Appellate Court's conclusion that the evidence was legally sufficient, the court concluded that the trial court erred when it precluded plaintiff from calling Susan Schultz as a witness and precluded plaintiff from testifying about his relationship with Schultz and the context in which he had intended to send the email to her. Id. at 767-77.

         As to the charge of harassment, the Appellate Court ruled that the harassment statute as applied to plaintiff's case was unconstitutional in violation of the First Amendment. The court reasoned that plaintiff's conviction was impermissibly based on the content of the email that he had sent to Waters, rather than on the basis of any surrounding conduct by plaintiff. For this conclusion, the court heavily relied on what it called a “longstanding rule” that “if a prosecution of a defendant under § 53a-183(a) is based entirely on content, that application of the statute violates the first amendment and must be deemed unconstitutional as applied to that defendant's conduct.” 155 Conn.App. at 782-83. The court, however, acknowledged that “our Supreme Court has modified that rule” by a decision that issued in 2013 but concluded that the rule, even as modified, still applied to plaintiff's case. Id. at 783-86. The court rejected the state's argument that “sending the single e-mail was sufficiently threatening when placed in the context of his and Waters' verbal altercations before the e-mail was sent.” Id. at 786.

         Accordingly, the Appellate Court ordered a judgment of acquittal on the harassment charge and a new trial on the charge of criminal violation of a protective order. Id. at 789. The State eventually decided to dismiss the violation-of-protective-order charge rather than to re-try the case. On May 6, 2015, a state trial court officially entered a judgment of acquittal on the harassment charge and dismissed the violation of protective order charge. See Doc. #95-2.

         Plaintiff filed this federal lawsuit on March 10, 2016. In his second amended complaint- now the operative complaint in this action-plaintiff alleges a wide range of federal and state claims against the State of Connecticut as well as against the Town of New Canaan, ten individual officers of the New Canaan Police Department, and the chairman of the New Canaan Police Commission (collectively referred to as “the New Canaan defendants”). The complaint runs 72 pages long with more than 200 paragraphs of allegations. It alleges federal constitutional claims under 42 U.S.C. § 1983 for violations of the First, Fourth, Fifth, and Ninth Amendments (as well as a Monell claim against the Town); state constitutional claims under Article First, §§ 1, 4, 7, 8, 9, and 10 of the Connecticut Constitution; state law tort claims such as false imprisonment, abuse of process, malicious prosecution, and infliction of emotional distress; and a claim for indemnification under state law against the Town of New Canaan.[4]

         Plaintiff alleges that he has endured severe emotional, psychological, and financial distress as a result of being arrested, prosecuted, and convicted. In addition to spending three weeks incarcerated during 2012, he was required to liquidate substantial financial resources from his retirement account to cover his legal costs. He was prohibited from leaving Connecticut without the court's permission for five months. He was expelled from his country club after 27 years of membership. He suffered damage to his reputation, estrangement from his friends, and lost valuable time with his children. Doc. #94 at 46, 67-69.

         All the defendants have moved to dismiss the complaint. Docs. #106, #119. The Court has heard extensive oral arguments from plaintiff, counsel for the New Canaan defendants, and counsel for the State of Connecticut.


         The background principles governing a Rule 12(b)(6) motion to dismiss are well established. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013). Still, even a pro se complaint must plead enough facts-as distinct from threadbare legal conclusions-to state a plausible claim for relief. “We have noted our obligation to construe pro se complaints liberally, even as we examine such complaints for factual allegations sufficient to meet the plausibility requirement.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).

         In short, my role in reviewing the motion to dismiss is to determine whether the complaint-apart from any of its conclusory allegations and construing its pro se allegations liberally-sets forth sufficient facts to state a plausible claim for relief. The Court may also properly consider documents that have been referenced or appended to a plaintiff's complaint. N.Y. Pet Welfare Ass'n, Inc. v. City of N.Y., --- F.3d. ---, 2017 WL 816880, at *3 (2d Cir. 2017).

         A. Claims against the ...

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