United States District Court, D. Connecticut
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 ...