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Silano v. Hammel

United States District Court, D. Connecticut

March 26, 2019

VIRGINIA SILANO Plaintiff,
v.
KEVIN HAMMEL Defendant.

          MEMORANDUM OF DECISION RE: THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 48]

          KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE

         This case arises out of the arrest of the pro se plaintiff, Virginia Silano, (the “Plaintiff” or “Silano”) on November 23, 2011 for harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183(a). Silano was arrested by defendant Detective Kevin Hammel (the “Defendant” or “Hammel”), formerly, of the Trumbull Police Department. The operative complaint asserts a claim for malicious prosecution based on the federal constitution and Connecticut common law. Pending before the Court is the Defendant's motion for summary judgment. For the reasons stated herein, the motion for summary judgment is GRANTED.

         Facts [1]

         The situation leading to the Plaintiff's arrest began with a dispute between Silano and her neighbor George Cooney (“Cooney”). During the relevant time period, Silano and Cooney were members of a private recreational community managed and maintained by the Pinewood Lake Association (“PLA”) through a Board of Governors, of which Cooney was the president. (Def.'s SMF at ¶ 3.) At this time, Cooney also worked for Hemlock Manor, LLC (“Hemlock Manor”), [2] which contracted with various PepsiCo., Inc., organizations and affiliates (individually and collectively, “Pepsi”) to perform investigations and audits of Pepsi products. (Id. at ¶ 4; see also Def.'s Ex. B at 1, 4; Def.'s Ex. C at 1-2; Def.'s Ex. E; Def.'s Ex. F-1.)

         In 2010, Silano alleges that she complained to Cooney about the sale of “unredeemable” Pepsi products on PLA grounds. (Plf.'s SMF at ¶ 5.) Thereafter, Silano contacted the Connecticut Department of Environmental Protection concerning this issue. (Def.'s Ex. A at 70:2-8; Def.'s Ex. B at 190:6-9.) In December 2010, Silano further contacted Pepsi's corporate offices in Waterbury to complain about dirty and expired Pepsi products being sold in Connecticut. (Rev. Compl. at ¶ 6; Def.'s SMF at ¶ 11; Def.'s Ex. A at 69:1-9.) The Plaintiff was referred to the legal department of Pepsi in New York, which in turn referred her to Pepsi-Cola Bottling Company of New York (“Pepsi Bottling Company”). (Def.'s SMF at ¶ 11; see Def.'s Ex. A at 69:20-70:1.) In early January 2011, Silano again contacted Pepsi Bottling Company and reported that Cooney was reselling Pepsi through the PLA without authorization. (Rev. Compl. at ¶ 7; see Def.'s SMF at ¶ 11; Plf.'s Ex. 1 at ¶¶ 4, 7, 8.) Silano alleges that Cooney subsequently contacted the Trumbull The Plaintiff's failures to comply with Local Rule 56(c) “frustrate [Local] Rule 56(a)'s purpose of clarifying whether a genuine dispute of material facts exists.” Zamichiei v. CSAA Fire & Cas. Ins. Co., No. 3:16-cv-00739 (VAB), 2018 WL 950116, at *1 (D. Conn. Feb. 20, 2018) (quoting Liston-Smith v. CSAA Fire & Cas. Ins. Co., 287 F.Supp.3d 153, 157, n.2 (D. Conn. 2017)). The Court therefore deems admitted all qualified admissions and denials that do not comply with Local Rule 56 for purposes of resolving this motion. See D. Conn. L. Civ. R. 56(a)(3) (“Failure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming admitted certain facts that are supported by the evidence in accordance with Local Rule 56(a)1. . . .”). Accordingly, all of the facts set forth herein are undisputed unless otherwise indicated. Police Department concerning her complaints to Pepsi, and Hammel contacted Silano in response to that complaint in January 2011. (Rev. Compl. at ¶ 8; Plf.'s SMF at ¶ 13; Plf.'s Ex. 1 at ¶ 8.) At that time, Silano alleges that she confirmed to Hammel that she had complained to Pepsi about Cooney's sale of expired Pepsi. (Id.)

         In early 2011, Silano was arrested for, inter alia, an incident in which she allegedly pointed a firearm at another member of the PLA Board of Governors.[3] (Def.'s Ex. B. at 1; Def.'s Ex. C at 1; Plf.'s Ex., ECF No. 65, at 8; Silano v. Cooney, No. FBT-cv-14-6045374-S, 2017 WL 1194322, at *2 (Conn. Super. Ct. Feb. 22, 2017).) On May 31, 2011, Cooney called a PLA meeting to discuss suspending Silano's and her husband's membership with the PLA or expelling them from the PLA because of the firearm incident and other incidents as well. (Def.'s SMF at ¶ 6; Def.'s Ex. B at 1; Def.'s Ex. E.) Silano resigned prior to the meeting, but the Board of Governors continued to evaluate her husband's membership. (Def.'s Ex. E at 1.)

         In early June 2011, Silano contacted Pepsi again to complain about Cooney's alleged distribution of dirty and expired Pepsi in Connecticut. (Def.'s SMF at ¶¶ 14, 17.) On or about June 9, 2011, Cooney submitted a written complaint against Silano to Hammel. (Id. at ¶ 7; Def.'s Ex. E.) In that statement, Cooney provided background information concerning the relationship between himself, Silano, and the PLA. (Def.'s Ex. E.) Cooney explained that he had learned that Silano was contacting the corporate offices of Pepsi and its affiliates and making negative remarks about him. (Id.) Cooney felt that Silano's actions were in retaliation for her recent resignation from the PLA and were designed to intimidate him and the Board of Governor's with respect to the on-going proceedings concerning her husband. (Id.) Hammel noted that the matter appeared to be civil in nature but informed Cooney that he should file an additional report if the complaints by Silano continued. (Def.'s Ex. C at 1.)

         Around this time, Silano claims that Pepsi contacted her concerning Cooney. (Plf.'s Supp. Aff., ECF 65, at ¶ 7.) Because she was no longer a member of the PLA, Silano claims that she referred Pepsi to Michele Kingsbury, her long-time neighbor and the plan governor for the PLA.[4](Rev. Compl. at ¶¶ 6, 9; Plf.'s Ex. 8 at 14:19-24; Plf.'s Ex. 11 at ¶ 6; Plf.'s Supp. Aff., ECF 65, at ¶ 7.) Thereafter, Pepsi contacted Kingsbury twice in late June or early July 2011 to discuss Cooney. (Plf.'s SMF at ¶ 27; Plf.'s Ex. 8 at 25:9-25:16; Plf.'s Ex. 11 at ¶¶ 4, 6.) The Pepsi representative told Kingsbury that Silano had referred her to him and had given him her phone number. (Plf.'s Ex. 8 at 20:10-20:14, 21:16-21:25.) After speaking with the Pepsi representative, Kingsbury allegedly told Cooney about those conversations, although Cooney later testified he had no recollection of that alleged conversation. (Plf.'s SMF at ¶ 27; Plf.'s Ex. 11 at ¶ 5; Plf.'s Ex. 13 at 99:13-100:13.)

         On August 5, 2011, Cooney submitted a sworn statement to Hammel. (Def.'s SMF at ¶ 12; Def.'s Ex. C.) In that statement, Cooney again provided background information concerning his relationship with Silano, including the fact that he was a witness to the pending firearm case against Silano. (Def.'s Ex. C at 1.) Cooney also explained that he had recently learned that Silano had again contacted Pepsi Bottling Company on July 28, 2011 and once again made negative and false allegations against him. (Id.) Cooney asserted that Silano's conduct “serve[s] no legitimate purpose other than to repeatedly annoy and alarm myself and my business associates.” (Id. at 2) Cooney advised that Pepsi had threatened to cancel his contract with it due to Silano's conduct, which would result in a significant loss of revenue for his company, contractors, and family. (Id.)

         To investigate this complaint, Hammel contacted Silano; (Plf.'s Ex. 1 at ¶ 11); and Marc Aliberti, a business associate of Cooney and Pepsi Bottling Company; (Def.'s SMF at ¶ 18; Def.'s Ex. F at ¶ 3; Def.'s Ex. F-1). On August 8, 2011, Hammel interviewed Silano, who denied contacting Pepsi on July 28, 2011. (Plf.'s Ex. 1 at ¶ 11.C.) Hammel contacted Aliberti in September or October 2011 concerning Cooney's complaint. (Def.'s Ex. F at ¶ 3.) On October 2, 2011, Aliberti submitted a written statement concerning the events in question.[5] (Id. at ¶ 4; Def.'s Ex. F-1.) Aliberti related that he was informed by Pepsi Bottling Company on June 2, 2011 and July 28, 2011 that Silano had called and made certain negative allegations against Cooney. (Def.'s Ex. F-1.) Alberti noted that Pepsi Bottling Company told him that it deemed Silano's allegations to be unsubstantiated after speaking with her in June 2011 and that Silano was unable to provide further proof of her allegations in July 2011. (Id.) Nevertheless, Pepsi expressed its displeasure with these continued allegations and discussed terminating its contract with Hemlock Manor due to Silano's continuing allegations. (Id.)

         On October 19, 2011 and October 25, 2011, Hammel contacted Silano's attorney to arrange for another interview with her, but to no avail. (Def.'s SMF at ¶¶ 27-29; Def.'s Ex. B at 4.) On November 3, 2011, Hammel applied for an arrest warrant for Silano charging her with harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183. (Def.'s Ex. B.) The warrant application was reviewed and approved by a prosecutor on November 9, 2011 and by a superior court judge on November 22, 2011. (Id. at 4; Def.'s SMF at ¶ 31.) On November 23, 2011, Silano turned herself in to the Trumbull Police Department for arrest. (Def.'s SMF at ¶ 32.)

         During the pendency of her criminal prosecution, Silano, through counsel, informed the state that her complaints to Pepsi were merely consumer complaints. (Rev. Compl. at ¶ 12.) She further informed the state that she did not initiate any contact with Pepsi in July 2011 but rather referred a call from Pepsi to Kingsbury. (Id.) In August 2012, Kingsbury met with Hammel to discuss the pending harassment charge against Silano. (Plf's SMF at ¶ 26; Plf's Ex. 11 at ¶¶ 2- 3, 6.) Kingsbury stated that she spoke with Pepsi twice concerning Cooney after Silano referred Pepsi to her. (Plf's SMF at ¶ 26; Plf's Ex. 11 at ¶¶ 4, 6) Kingsbury also related the content of her conversations with Pepsi to Hammel. (Id.) The Plaintiff contends that Hammel did not thereafter attempt to amend his arrest warrant affidavit or bring an end to her harassment prosecution.

         Many months later, on October 18, 2013, a hearing was held in Silano's harassment case. (Def.'s SMF at ¶ 34; Def.'s Ex. H.) At that hearing, the state indicated that it planned to enter a nolle prosequi [6] concerning the harassment charge. (Def.'s Ex. H. at 1:21.) Silano then moved to dismiss the charge. (Id. at 2:22-23.) Thereafter, the court engaged in the following colloquy with Silano:

THE COURT: Are you willing to admit probable cause for that arrest?
MS. SILANO: Uhm, I have - yeah. No. Probable cause, I guess for the mock investigation that the cop engaged in and satisfies to his probable cause. All he had to do was just investigate and he would've found there was none. As a matter of fact there's a pending civil action against Mr. Cooney for false statement, for abusive process, and malicious prosecution, Your Honor.[7] So, I can't -
[PROSECUTOR]: Let me make a record on this, Your Honor.
MS. SILANO: - I can't - I don't believe there was culpability on the part of the police department and they have to go right there given a false statement, they have to act on it.
THE COURT: I would ask you whether you admit that the police had probable cause to make the arrest.
MS. SILANO: Yeah, I can - they were lied to, they were. They were lied to. They ...

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