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Parnoff v. Aquarion Water Company of Connecticut

Court of Appeals of Connecticut

March 5, 2019

LAURENCE V. PARNOFF
v.
AQUARION WATER COMPANY OF CONNECTICUT ET AL.

          Argued October 22, 2018

         Procedural History

         Action to recover damages for, inter alia, false arrest, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Radcliffe, J., granted the motion for summary judgment filed by the defendant Glynn McGlynn et al. and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          John R. Williams, for the appellant (plaintiff).

          John A. Florek, with whom was Alexander Florek, for the appellee (defendant Glynn McGlynn).

          Keller, Moll and Eveleigh, Js.

          OPINION

          KELLER, J.

         This appeal, and a related appeal, Parnoff v. Aquarion Water Co. of Connecticut, 188 Conn. App., A.3d (2019), which we also officially release today and which contains a recitation of the underlying facts, involve a challenge by the plaintiff, Laurence V. Parnoff, to the summary judgments rendered by the trial court in favor of the defendants. In the present appeal, the plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant Glynn McGlynn, a Stratford police officer.[1] The plaintiff claims that (1) ‘‘[t]he evidence before the court was sufficient to permit a jury to find that the force used by the defendant . . . was unreasonable under the fourth amendment, '' and (2) the ‘‘defendant's assertion of the affirmative defense of qualified immunity was unavailing at the summary judgment stage of this case'' because the defendant cannot reasonably contend that no objective police officer could have thought that the force used was reasonable. For the reasons set forth herein, we decline to review the plaintiff's claims.

         In the present appeal, the plaintiff appeals from the summary judgment rendered in favor of the defendant and, in setting forth the grounds for the appeal, he argues that an issue of material fact exists as to the force used by the defendant in effectuating the plaintiff's arrest. However, the theory he pursued in opposition to the defendant's motion for summary judgment was based not on the excessive use of force by the defendant but on the lack of probable cause for his arrest. The trial court construed the plaintiff's count directed against McGlynn to be a false arrest claim and determined that summary judgment on count twenty-two in favor of the defendant was appropriate because there was ‘‘no issue of material fact concerning the objective evidence of probable cause for the arrest of'' the plaintiff.

         At the outset, we note that the plaintiff's sixth revised complaint, which is the operative complaint in this case, is not a model of clarity. Count twenty-two is titled ‘‘Title 42 of the United States Code, Section 1983 as to Defendant Glynn McGlynn (Town of Stratford Police Officer).'' Therein, the plaintiff incorporated paragraphs 1 through 20 of count eighteen, titled ‘‘Tortious Conduct, '' which briefly described the events leading up to his arrest and the arrest itself, and then asserted broadly that the defendant deprived him of the rights, privileges, and immunities secured to him by the constitution and laws of the United States and the state of Connecticut. At no point in count twenty-two did he use the term ‘‘force'' or the phrase ‘‘excessive force'' to support his claim under 42 U.S.C. § 1983.[2] It is unclear on what exactly his § 1983 claim is based.

         In the defendant's memorandum of law in support of his motion for summary judgment, he argued that he was immune from liability under the doctrine of qualified immunity. The defendant set forth multiple bases for why he believed that the doctrine applied. First, the defendant argued that qualified immunity existed because the force used in effectuating the plaintiff's arrest was objectively reasonable given the situation he faced, but he contended that the plaintiff's ‘‘language used in count twenty-two is hardly fact specific'' and indicated that the plaintiff appeared also to complain about the arrest itself. The defendant then argued that it was clear that there was ‘‘probable cause to arrest the plaintiff'' at the time of his arrest, citing to case law supporting the contention that ‘‘the existence of probable cause to arrest is a complete defense to an action for false arrest.''

         In the plaintiff's memorandum of law in opposition to the motion for summary judgment, he spent the vast majority of his argument relating to count twenty-two, arguing that no probable cause existed for the arrest. The plaintiff began his argument by calling to the court's attention an ‘‘expert who [would] present evidence that the plaintiff's arrest on all charges was without probable cause'' and directed the court to his appendix, which contained an affidavit from an expert attesting that it was his opinion that no probable cause existed for the plaintiff's arrest. The plaintiff then recited law on the issue of qualified immunity. He argued that summary judgment was not appropriate because there were conflicting facts as to whether the defendant had probable cause to arrest the plaintiff and, in a conclusory manner, ‘‘whether [his] force was excessive.'' He does not, however, develop the excessive force statement or point to any evidence attached to his memorandum to support it. The plaintiff then set forth the facts leading up to his arrest. Our review of his memorandum of law in opposition to the defendant's motion for summary judgment reasonably suggests that he discussed these facts in order to persuade the court that there was no probable cause to arrest him. He then concluded his argument as follows: ‘‘Based upon this failure to investigate prior to making the arrest, a trier of fact could conclude that the [defendant's] actions were objectively unreasonable. It is almost absolute that the claim of lack of probable cause for the plaintiff's arrest, with evidence that such claim will be presented to the trier of fact, is sufficient to raise a significant issue as to whether the [defendant] would be able to pass the reasonableness test and prevail relative to [his] defense of qualified immunity. We believe that [he] cannot, and that our objection should be sustained.''

         On August 29, 2016, the court held a hearing on the motion for summary judgment. As to the counts pertaining to the defendant, the court first addressed count eighteen, which was the count the plaintiff incorporated entirely into count twenty-two to support his § 1983 claim against the defendant. The court stated: ‘‘[Count eighteen] is tortious conduct. I assume that that's false arrest.'' The defendant's counsel seemed to agree by stating that ‘‘[i]t seems to be some type of general tort theory'' and then proceeding to his governmental immunity argument. At no point during the proceeding did the plaintiff's counsel argue that count twenty-two, or count eighteen for that matter, was an excessive force claim rather than one alleging false arrest. Instead, the plaintiff's counsel began by saying that ‘‘[r]elative to the immunities, if the arrests were illegal, I question whether the immunities protect the police officer.'' He proceeded to argue that ‘‘when you arrest without probable cause, then I think you lose your immunities.'' He indicated to the court that ‘‘[w]e've briefed this thoroughly. I'm not going to waste a lot of the court's time. Arrests are discretionary acts, no question, if there's probable cause. The [§] 1983 action, that's a reasonable standard. Under all the facts that are presented to the court here, there's enough to raise a question of fact as to whether or not the actions of the police officer were reasonable.''

         On January 5, 2017, the court issued a memorandum of decision. It granted the motion for summary judgment as to count twenty-two recognizing ‘‘that the defense of qualified immunity, which protects public officials from civil actions where they are performing discretionary functions, precludes recovery under [42 U.S.C. §] 1983.'' It went on to state that ‘‘[l]ack of probable cause is a critical element of both a common-law false arrest claim and one brought pursuant to [§] 1983.'' It concluded that there was ‘‘no ...


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