United States District Court, D. Connecticut
RULING ON PENDING MOTIONS
Stefan
R. Underhill United States District Judge
Russel
Harvey (“Harvey”) initiated this 42 U.S.C. §
1983 action pro se against defendants Town of Greenwich
(“Greenwich”), Police Officer Mark Kordick
(“Kordick”), and State's Attorney Steven
Weiss (“Weiss”), in which he brings allegations
stemming from an incident in August of 1996. Am. Compl., Doc.
No. 11. He alleges that Kordick, among other non-party
Officers, “illegally entered [his] apartment,
wrongfully arrested [him], used excessive force to beat [him,
] … threatened [him] with additional bodily injury and
death, wrongfully jailed [him], and through perjurious
statements in their police reports and complaints, brought
criminal charges against [him].” Id. at ¶
1. The defendants moved to dismiss Harvey's claims, which
I granted in part. Conf. Memo. and Order, Doc. No. 38. The
only claims remaining are: (1) malicious prosecution against
Weiss; (2) false arrest against Kordick; and (3) malicious
prosecution against Kordick.
I
denied without prejudice Weiss' original Motion to
Dismiss (Doc. No. 19) and directed Harvey to provide the
document to Weiss upon which his claims against Weiss are
premised. Conf. Memo. and Order, Doc. No. 38. After receiving
the document, Weiss filed a Renewed Motion to Dismiss (Doc.
No. 40). For the reasons set forth below, Weiss' motion
is granted.
I also
held open Kordick's Motion to Dismiss (Doc. No. 26) and
requested supplemental briefing about whether Harvey's
claims of false arrest and malicious prosecution were
time-barred. Conf. Memo. and Order, Doc. No. 38. Kordick
filed a supplemental memorandum in support of his motion to
dismiss in which he alleges that Harvey's false arrest
claim is time-barred and that he failed to adequately plead
his malicious prosecution claim. See Supp. Mem. in
Supp. Mot. to Dism., Doc. No. 39. For the reasons set forth
below, Kordick's Motion to Dismiss (Doc. No. 26) is
granted in part and denied in part.
Further,
Harvey moves to add defendants to the case. See Mot.
to Add Def., Doc. No. 43. He seeks to add some named
defendants, multiple John and Jane Doe defendants, as well as
“each and every Town of Greenwich Police Officer
employed by the Town of Greenwich in August, 1996.”
Id. at 1, 9. For the reasons set forth below,
Harvey's Motion to Add Defendants (Doc. No. 43) is
denied.
I.
Background
Harvey
alleges the following facts in his Amended Complaint (Doc.
No. 11). Harvey moved to Greenwich in February of 1996 from
his hometown of Mamaroneck, New York. Id. at ¶
9. When he lived in New York the Police failed to stop an
attack against him, and when he spoke out against the
police's handling of the situation, he was beaten and
detained by the police. Id. He filed suit against
the department and received a substantial settlement.
Id. He then moved from Mamaroneck to avoid the
harassment by the police that followed his lawsuit, but as
soon as he moved to Greenwich, Kordick and other Greenwich
officers began harassing him in retaliation for his lawsuit
against the Mamaroneck Police. Id. at ¶¶
9, 11-12. Kordick and other Greenwich Police Officers
harassed him multiple times in July and August of 1996, both
at his home and in public and although Harvey complained to
supervisors at the Police Department, nothing was ever done
to stop the harassment. Id. at ¶ 15, 18.
Further, the Police broke into Harvey's house at one
point while he was not home, and on two occasions, August 13
and 19, 1996, police came to his house in the middle of the
night to investigate an alleged noise complaint made by one
of his neighbors. Id. at ¶ 16, 19, 25.
On
August 13, Harvey woke up around 4:00 in the morning to find
Greenwich Police Officers inside his home, and on August 19,
Kordick and others came to his front door but would not leave
after Harvey repeatedly asked them to because he was not
making any noise and he did not want them to come inside.
Id. at ¶¶ 16, 19, 25-37, 39-44. Harvey was
fearful at the time and Kordick threatened him with a gun.
Id. at ¶ 40-41, 31. The Officers then left
Harvey's home but returned twenty minutes later, pushed
open the door, grabbed Harvey and pulled him out of the
house. Id. at ¶ 45. The Officers “choked
… and handcuffed” him, “tossed [him]
around like a rag doll, ” and “threw [him] to the
ground, ” even though Harvey was not resisting and said
he would cooperate. Id. He “begged them to
stop” because he was in pain but the officers
“hit [him] with their fists and their
flashlights” and kicked and spit on him, and Kordick
“held [Harvey] down with the full weight of his body,
first with his knee in [Harvey's] back, and then, by
laying on top of” him. Id. The “beating
caused [him] to have great pain, and resulted in contusions,
scrapes, pain in [his] back and arm, etc.” and required
him to go to the emergency room for treatment. Id.
The officers then “[took] turns going in and out of
[his] apartment” without permission. Id. at
¶ 46. He “feared for [his] life” and
“thought [the officers] were going to kill” him,
and Kordick threatened him when he was in the police car on
the way to the station. Id. at ¶ 45, 47.
Harvey
was charged with Disorderly Conduct and Interfering with
Officers/Resisting Arrest for the August 19 incident, and
Kordick was listed as the “Arresting Officer.”
Id. at ¶ 49. Further, Harvey was given a
“Notice of Rights” and “Uniform Arrest
Report, ” and states that “[n]either of these
papers, nor any reports that [he] ever received or [saw],
remotely satisfie[d] the [Sixth] Amendment Right ‘to be
informed of the nature and cause of the
accusation.'” Id. at ¶ 50. Further,
Harvey was never made aware “in any way whatsoever
… which of the six (6) subsections of the Disorderly
Conduct statute [he] was alleged to have committed.”
Id. at ¶ 53. Harvey also states that he could
not have committed the crime of Interfering with Officers
because “the officers were acting illegally” and
Kordick and others “fabricated the charge.”
Id. at ¶ 54-55. He alleges multiple times that
the officers “violated [his] Fourth Amendment rights by
making an unlawful entry into [his] home without a warrant,
to arrest [him] without a warrant in the dead of night, for
the (false) allegation that [he] had committed the most
trivial of misdemeanors: a noise violation that they did not
hear (and which they fabricated).” Id. at
¶ 54. When Harvey returned home after being released
from jail, his door was open and a “valuable and
irreplaceable book was missing, ” though he does not
allege that the police took it. Id. at ¶ 56.
The Greenwich Post reported on his arrest on Friday, August
23, and Harvey alleges that “all the statements by the
police about [his] behavior in the report (as repeated and
published by the Greenwich Post), were completely false,
malicious, and defamatory.” Id. at ¶ 58.
When
Harvey appeared with counsel in court on August 26, 1996, he
entered a not guilty plea and the prosecutor “indicated
he was willing to admit that the police acted improperly in
entering [his] apartment and arresting [him] in the middle of
the night without a warrant and would dismiss” the
charges. Id. at ¶ 60. Harvey's attorney
(unnamed), though, suggested that he sign up for Accelerated
Pretrial Rehabilitation, but Harvey did not want to pursue
that option. Id. Throughout the pendency of
Harvey's criminal case, Kordick and others continued to
harass him and his attorney told him “it was likely
Kordick and the others would follow through on their
threats” and “might even kill” Harvey and
encouraged Harvey to move because he, Harvey's lawyer,
“didn't want to feel responsible if [Harvey] stayed
in Greenwich and the police killed [him].” Id.
at ¶ 62. Harvey then moved and his attorney appeared on
his behalf on a number of court dates. Id. at ¶
65-66.
Harvey
states that Weiss “made a terrible decision to
prosecute” him and Weiss knew or should have known the
following: “the charges were bogus and the police had
engaged in misconduct, entered [Harvey's] home and
arrested [him] without a warrant or probable cause, lied and
fabricated the charges;” “the police were wrong
to violate [Harvey's Fourth] Amendment rights by entering
[his] apartment in the middle of the night to arrest [him]
for something as trivial as making too much noise, even if it
were true;” “even if [Harvey] had resisted such
an arrest, under those circumstances, it would have been
[his] common law right to protect [himself] and [his]
home;” and Harvey “had never been arrested,
charged, or convicted of any crime.” Id. at
¶ 69. Harvey acknowledges that Weiss is protected by
prosecutorial immunity in his role as a prosecutor, but sues
him for malicious prosecution for allegedly signing his name
on the charging documents as the “Complaining
Witness.” Id.
Harvey's
criminal case was not dismissed until August 20, 2015 because
of “the misconduct by the Greenwich Police and the
Prosecutor.” Id. at ¶ 1, 87. While the
case was pending, Harvey was subjected to other hardships
including an arrest in California, requested by Greenwich for
extradition purposes; defamatory statements made to
California authorities that led to further harassment; an
eight-month incarceration in California; and being told he
could not remain in Canada. Id. at ¶ 87-93.
In the
“Conclusion and Claims” section of his Amended
Complaint, Harvey states that he is suing Kordick and
Greenwich “[i]n their roles as ‘State Actors'
… for violating [his] Constitutional [r]ights.”
Id. at ¶ 95. Harvey alleges that Kordick
violated his Fourth, Fifth, and Fourteenth Amendment rights
by: (a) entering his home without a warrant; (b) arresting
him without a warrant; (c) using excessive force against him;
and (d) threatening him. Id. at ¶ 96. Further,
he alleges that Kordick defamed him to his neighbors and to
other jurisdictions, stating that Harvey was a criminal,
dangerous, and mentally ill. Id. at ¶ 97, 102.
Harvey alleges that Greenwich violated his Fourth, Fifth, and
Fourteenth Amendment rights because it “failed to
train, supervise and/or set policy for its police officers,
including” Kordick. Id. at ¶ 98. Further,
Harvey alleges that Greenwich defamed him by
“communicat[ing] to other jurisdictions false and
defamatory statements” regarding the alleged charges.
Id. at ¶ 102. Lastly, Harvey alleges that Weiss
violated his Fourth, Fifth, and Fourteenth Amendment rights
by maliciously prosecuting him. Id. at ¶ 103.
Harvey seeks $2, 000, 000 in damages. Id. at ¶
106.
Weiss
moved to dismiss the malicious prosecution claim against him
on the grounds of prosecutorial immunity. See Weiss
Mot. to Dism., Doc. No. 19. Harvey sues Weiss only for his
act of signing a charging document as the “Complaining
Witness” in which he “complains, deposes, and
alleges that he has reason to believe and does believe that
[Harvey] committed the two crimes” as charged. Am.
Compl., Doc. No. 11 at ¶ 69. Harvey did not submit the
form to which he was referring. In a hearing on the Motion to
Dismiss on July 17, 2018, I denied Weiss' motion
“because Weiss's actions as alleged in the
complaint, taken as true, are not entitled to
immunity.” Conf. Memo. and Order, Doc. No. 38. Further,
I directed Harvey to provide Weiss' attorney with the
relevant court document signed by Weiss, and stated that
“after reviewing the document, [Weiss' attorney]
can file an additional motion challenging the claim against
Weiss, should he feel that is necessary.” Id.
Harvey provided Weiss' attorney with the operative
document, and Weiss filed a Renewed Motion to Dismiss. Weiss
Mot. to Dism., Doc. No. 40.
With
respect to Greenwich, I dismissed with prejudice all of the
claims against it[1] “as each claim was either
time-barred by the applicable statute of limitations and/or
Harvey failed to state a claim under Monell v. Department
of Social Services of the City of New York, 436 U.S. 658
(1978).” Conf. Memo. and Order, Doc. No. 38.
With
respect to Kordick, I dismissed with prejudice two of
Harvey's claims against him because they were
time-barred: Excessive Force (Count Two); and Slander (Count
Seven). Id. at 2. I held open two claims against
Kordick and requested supplemental briefing: False Arrest
(Count One); and Malicious Prosecution (Count Three).
Id. Kordick filed a supplement to his original
motion to dismiss (Doc. No. 39), which Harvey has opposed
(Doc. No. 51).
Accordingly,
the only remaining counts are: Malicious Prosecution against
Weiss; False Arrest and Malicious Prosecution against
Kordick. Further, Harvey has moved to add defendants to the
case. See Mot. to Add Def., Doc. No. 43.
II.
Motions to Dismiss
A.
Stand ...