Memorandum of Law, Salahuddin v. Hale

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MUSTAFA SALAHUDDIN : CIVIL ACTION NO.
Plaintiff, : 3:13CV00260 (RNC)
:
v. :
:
KEVIN HALE, ET AL. :
Defendants : APRIL 30, 2014

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
The Defendants, Kevin Hale, Andrew Cota, Wayne Williams, David Blackwell
and J oseph DiVencenzo respectfully submit this Memorandum of Law in support of their
Motion for Summary J udgment filed this day.
1
Summary judgment should enter in favor
of each of the Defendants because they are all entitled to qualified immunity from
Plaintiffs claims.
I. BACKGROUND
2

Plaintiff is a former police officer with the City of Ansonia. Kevin Hale is the Chief
of Police in Ansonia and held that position at all times relevant to this matter. Andrew
Cota and Wayne Williams are lieutenants in the Ansonia Police Department. David
Blackwell was a dispatcher working in the Ansonia Police Department building at the
1
During the course of a telephone status conference with the Court, Plaintiffs counsel indicated that Defendant
Anthony Buglione, a retired State Police Officer, was never served with the complaint. Defendants Hale, Cota,
Williams, Blackwell and DiVencenzo are all current or former employees of the City of Ansonia and, for ease of
reference, will be referred throughout this document as the Defendants.
2
Because, on a motion for summary judgment, the Court views the admissible evidence in the light most favorable
to the non-moving party, the Defendants have set forth the facts based on the admissible evidence and Plaintiffs
sworn testimony. In other words, these are the facts viewed in the light most favorable to Plaintiff. Defendants do
not necessarily agree that all of the facts recited herein are true or accurate and reserve the right to contest all of
these facts if a trial is necessary.

Case 3:13-cv-00260-RNC Document 26-1 Filed 04/30/14 Page 1 of 32
relevant time. J oseph DiVencenzo is a custodian employed by the City of Ansonia and
was assigned to the building that houses the police department at the relevant time. At
the relevant time, Anthony Buglione was a State Police Detective.
On or about May 14, 2008, Mr. DiVencenzo received two new garden hoses from
his supervisor for use at the police department building. Such hoses were kept in their
original packaging and left near the rear entrance to the building. Mr. DiVencenzo left
work that day at approximately 2:30 p.m. Plaintiff, who normally worked the 11:00 p.m.
to 7:00 a.m. shift, reported for work and went out on patrol. Plaintiff was a DARE officer
and has testified that he needed to perform some work associated with an upcoming
DARE graduation ceremony that night. When he came to the police department
building, Plaintiff testified that he was emptying trash from his cruiser and forgot that he
had left a full cup of coffee on his roof, which spilled over the cruiser when he started
driving. He drove to the front of building in order to wash off the car and noticed that
there was no hose attached to the faucet. He drove around the rear of the building and
went inside. Plaintiff noticed the two new hoses near the rear entrance but went and
had breakfast. After breakfast, Plaintiff said that he took one of the hoses and used it to
prop open the back door in order to move items associated with the DARE graduation in
and out of the building. He intended to also use the hose to wash off the cruiser.
Plaintiff testified that he worked on the DARE project, became tired and placed the hose
on a shelf/rack next to the DARE closet--rather than returning it to where he found it. By
the time he got around to dealing with the coffee on the cruiser, it had crystallized.
Plaintiff decided that rather than going through the effort of unraveling the new hose, he
2

would drive the cruiser to a local business that granted police use of a hot water hose to
wash off the crystallized coffee.
In the morning, Mr. DiVencenzo could not find the hose and looked for it. He
mentioned to Lieutenant Cota that the hose was missing. Lieutenant Cota and Mr.
DiVencenzo did a thorough search of the department and could not find the hose
anywhere. Lieutenant Cota then viewed video surveillance of the department and
discovered Plaintiff placing his jacket/coat over the hose, picking up the hose and
walking out of view towards the back door. Lieutenant Cota then notified Chief Hale
who was off-duty and out of state. When Chief Hale returned, he viewed the video and
agreed that it appeared to show Plaintiff stealing the hose. Chief Hale decided to ask
the State Police to investigate to ensure that an impartial investigation occurred.
On May 20, 2008, Mr. DiVencenzo found the hose under a Tupperware top in a
box containing toilet paper. Mr. DiVencenzo did not place the Tupperware top there
and felt that this was an attempt by someone to cover up the taking of the hose.
State Police Detective Buglione conducted the investigation and interviewed
Plaintiff as well as a number of witnesses. There is no dispute that Plaintiff picked up
the hose and moved it on the night in question. Plaintiff testified that he used it to prop
open the back door as he was moving items in and out of the back door. Plaintiff further
testified that he placed the hose on the rack/shelf next to the DARE closet. Lieutenant
Cota and Mr. DiVencenzo did not find it there in the morning when they searched.
Plaintiff testified that he told Mr. DiVencenzo on a subsequent night where he could find
the hose. Mr. DiVencenzo denied this in the investigation. Mr. Blackwell was
3

interviewed and provided hearsay statements regarding what he had heard. Lieutenant
Williams is not mentioned at all in the investigation. Lieutenant Cota was interviewed
and related what he was informed of and what he did regarding the hose.
On J uly 11, 2008, Detective Buglione prepared an Arrest Warrant Application
and provided the affidavit for such application. In his affidavit, Detective Buglione
supplied facts based on his interviews of Plaintiff, Lieutenant Cota, Mr. Blackwell and
Mr. DiVencenzo, as well as others who are not named as defendants in this action. On
J uly 14, 2008, the Arrest Warrant Application was signed by Ansonia/Milford States
Attorney Kevin Lawlor. On that same date, J udge J ohn Ronan found probable cause
for an arrest of Plaintiff and signed the application. Plaintiff was arrested on J uly 15,
2008 by Detective Buglione. The State brought a single count information charging
Plaintiff with violating Connecticut General Statutes 53a-125b, larceny in the sixth
degree. Plaintiff went to trial and was acquitted of such charge.
None of the Defendants conducted the investigation of the case. None of the
Defendants charged Plaintiff with a crime and none of the Defendants prosecuted
Plaintiff.
On or around February 26, 2013, Plaintiff commenced this action by filing a one-
count complaint alleging a Section 1983 malicious prosecution claim against the
Defendants and Buglione.
3
Again, Mr. Buglione was never served. The Defendants
now move for summary judgment.
3
Paragraph 13 of the complaint states: In the manner described above, the defendants subjected the plaintiff to
malicious prosecution in violation of the Fourth Amendment to the United States Constitution as enforced through
Sections 1983 and 1988 of Title 42 of the United States Code. No other claim is made.
4

II. DISCUSSION
A. Summary J udgment Standard.
Summary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that the moving party is entitled
to a judgment as a matter of law. Fed. R. Civ. P. 56(c). A party opposing a motion for
summary judgment may not rest upon the mere allegations or denials of [his] pleading,
but [his] response, by affidavits or otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). In
determining when a party has raised a genuine issue of material fact, the Supreme
Court has stated, there is no issue for trial unless there is sufficient evidence favoring
the non-moving party for a jury to return a verdict for that party. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986) (citations omitted).
Indeed, a plaintiff may not get to a jury without any significant probative evidence
tending to support the complaint. Anderson, 477 U.S. at 249 (quoting, First Nat'l Bank
of Arizona v. Cities Servs. Co., 391 U.S. 253, 290 (1968)). The moving partys burden
may be fulfilled by pointing out to the District Court--that there is an absence of
evidence to support the nonmoving partys case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
The Second Circuit has stated that the mere existence of a scintilla of evidence
in support of the [non-movants] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant]. Yerdon v. Henry, 91 F.3d
5

370, 374 (2d Cir. 1996), quoting, Anderson, 477 U.S. at 252; see also, Bickerstaff v.
Vassar College, 196 F.3d 435, 448 (2d Cir. 1999), cert. denied, 530 U.S. 1242 (2000)
(An inference is not a suspicion or guess. It is a reasoned, logical decision to conclude
that a disputed fact exists on the basis of another fact that is known to exist.). Further,
the Second Circuit has stated that the non-movant cannot rely on inadmissible hearsay
in opposing a motion for summary judgment. Burlington Coat Factory Warehouse
Corp. v. Espirit de Corp., 769 F.2d 919, 924 (2d Cir. 1985). Thus, even in the
discrimination context, a plaintiff must provide more than conclusory allegations of
discrimination to defeat a motion for summary judgment. Meiri v. Dacon, 759 F.2d 989,
998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). In fact, the plaintiffs evidence must be
precise and specific, and may not be based on conjecture and surmise. Bickerstaff, 196
F.3d at 451 (affidavits must be based upon concrete particulars, not conclusory
allegations.); Lisas Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir.
1999); see also, McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (plaintiffs
rationalizations are insufficient to create genuine issues of material fact). In this case,
plaintiff has failed to raise a genuine issue of material fact necessitating a trial.
A. Defendants Are Entitled to Qualified Immunity.
The Defendants are protected from liability and damages by the doctrine of
qualified immunity. The Supreme Court has summarized the qualified immunity
doctrine as follows:
The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known. Qualified immunity balances two important interests--
the need to hold public officials accountable when they exercise power
6

irresponsibly and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably. The protection of
qualified immunity applies regardless of whether the government officials
error is a mistake of law, mistake of fact, or a mistake based on mixed
questions of law and fact.
Because qualified immunity is an immunity from suit rather than a mere
defense of liability . . . it is effectively lost if a case is erroneously permitted
to go to trial. Indeed, we have made clear that the driving force behind
creation of the qualified immunity doctrine was a desire to ensure that
insubstantial claims against government officials [will] be resolved prior to
discovery. Accordingly, we have repeatedly stressed the importance of
resolving immunity questions at the earliest possible stage in litigation.
In Saucier, this Court mandated a two-step sequence for resolving
government officials qualified immunity claims. First, a court must decide
whether the facts that a plaintiff has alleged (see, Fed. R. Civ. P. 12(b)(6),
(c)) or shown (see Rules 50, 56) make out a violation of a constitutional
right. Second, if the plaintiff has satisfied this first step, the court must
decide whether the right at issue was clearly established at the time of
the defendants alleged misconduct. Qualified immunity is applicable
unless the officials conduct violated a clearly established constitutional
right.
Pearson v. Callahan, 555 U.S. 223, 231-232, 129 S. Ct. 808, 815-816 (2009) (multiple
citations omitted). In Pearson, the Court concluded that while the sequence set forth
[in Saucier] is often appropriate, it should no longer be regarded as mandatory. 555
U.S. at 236; 129 S. Ct. at 818. In this case, Plaintiff cannot establish a violation of his
constitutionally protected rights by the Defendants.
1. Lack of State Action.
The facts, when viewed in the light most favorable to Plaintiff, reveal that he
cannot make out a constitutional claim against some or all of the Defendants because
he cannot establish state action by the Defendants. In the usual case, there would be
no question that municipal police officers investigating a potential crime and making an
7

arrest are state actors of Section 1983 purposes. However, this case is different. The
Defendants did not investigate the alleged crime and did not arrest Plaintiff.
Additionally, not all of the Defendants are municipal police officers. Some or all of the
Defendants do not qualify as state actors in this case.
In order to state a claim under 1983, a plaintiff must allege that he was injured
by either a state actor or a private party acting under color of state law. Ciambriello v.
County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Because the United States
Constitution regulates only the Government, not private parties, a litigant claiming that
his constitutional rights have been violated must first establish that the challenged
conduct constitutes state action. To qualify as state action, the conduct in question
must be caused by the exercise of some right or privilege created by the State or by a
rule of conduct imposed by the State or by a person for whom the State is responsible,
and the party charged with the [conduct] must be a person who may fairly be said to be
a state actor." United States v. Internatl. Bhd. of Teamsters, 941 F.3d 1292, 1296 (2d
Cir. 1991) (citations omitted).
Mr. DiVencenzo is a custodian employed by the City. As a custodian, Mr.
DiVencenzo is not invested with any police powers and certainly does not have the
authority to investigate crimes, arrest anyone or charge anyone with a crime. In this
case, he went looking for a missing hose on May 15, 2008. He reported that the hose
was missing to Lieutenant Cota who helped him search the building for the hose. On
May 20, 2008, he found the missing hose. He was subsequently interviewed by the
State Police in connection with an investigation that they were conducting. Under these
circumstances, Mr. DiVencenzo cannot be said to be a state actor.
8

Likewise, Mr. Blackwell is a dispatcher with no police powers and no authority to
investigate, arrest or prosecute anyone. According to the Arrest Warrant Application
submitted by State Police Detective Buglione, Mr. Blackwell was interviewed and
provided a statement. The Arrest Warrant Application recites that Mr. Blackwell
provided information to Detective Buglione regarding statements that he heard from Mr.
DiVencenzo and dispatcher Patty Rowland. Salahuddin Tr. at Exhibit 5 at p. 3 of 5. In
short, Mr. Blackwells contribution to the Arrest Warrant Application consisted of
hearsay statements. Under these circumstances, Mr. Blackwell cannot be considered a
state actor.
As to Defendants Hale, Cota and Williams, they did not conduct the investigation,
arrest Plaintiff or charge him with anything. Rather, Chief Hale asked the State Police
to investigate Plaintiffs actions. Such conduct does not constitute state action for
1983 purposes. The state actor in this scenario is State Police Detective Buglione.
Therefore, some or all of the Defendants are entitled to qualified immunity because they
are not state actors for purposes of Section 1983 and Plaintiff cannot establish any
constitutional violation.
2. The Defendants Have No Liability for Malicious Prosecution.
Even if the Court were to find that some or all of the Defendants were state
actors for 1983 purposes, the Plaintiff still cannot establish a constitutional violation
because the Defendants actions cannot fairly be characterized as causing the arrest
and prosecution of Plaintiff.
9

A successful section 1983 claim for malicious prosecution under the Fourth
Amendment requires that the plaintiff show: (1) a violation of his rights under the Fourth
Amendment, and (2) that he can establish the elements of a malicious prosecution
claim under state law. Under Connecticut law, a plaintiff must demonstrate the following
four elements: (1) that the defendant initiated or procured criminal proceedings against
the plaintiff; (2) that the criminal proceedings terminated in the plaintiff's favor; (3) that
the defendant acted without probable cause; and (4) that the defendant acted with
malice, i.e., for a purpose other than bringing an offender to justice. Acevedo v. Sklarz,
553 F. Supp. 2d 164, 172 (D. Conn. 2008) (citations omitted).
Under Connecticut law, the plaintiff has the burden of establishing the absence of
probable cause. Garcia v. Hebert, 2013 U.S. Dist. LEXIS 42872 at *23 (D. Conn. March
27, 2013) (citing, inter alia, Bhatia v. Debek, 287 Conn. 397, 410 (2008)). Thus, the
existence of probable cause is a complete defense to a malicious prosecution claim in
Connecticut. In assessing the existence of probable cause, the Second Circuit has
stated:
Probable cause requires an officer to have knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable
caution in the belief that an offense has been committed by the person to
be arrested. When determining whether probable cause exists courts
must consider those facts available to the officer at the time of the arrest
and immediately before it, as [p]robable cause does not require absolute
certainty. Courts should look to the totality of the circumstances and
must be aware that probable cause is a fluid conceptturning on the
assessment of probabilities in particular factual contextsnot readily, or
even usefully, reduced to a neat set of legal rules. Nevertheless, an
officer may not disregard plainly exculpatory evidence.
10

When making a probable cause determination, police officers are entitled
to rely on the allegations of fellow police officers. Absent significant
indications to the contrary, an officer is entitled to rely on his fellow
officers determination that an arrest was lawful. [T]he determination of
probable cause does not turn on whether [the fellow agents] observations
were accurate, but on whether [the arresting agent] was reasonable in
relying on those observations.
Moreover, information gleaned from informants can be sufficient to justify
the existence of probable cause. . . .
Furthermore, [t]he fact that an innocent explanation may be consistent
with the facts alleged . . . does not negate probable cause and an officers
failure to investigate an arrestees protestations of innocence generally
does not vitiate probable cause. . . .
Once an officer has probable cause, he or she is neither required nor
allowed to continue investigating, sifting and weighing information.
Panetta v. Crowley, 460 F.3d 388, 395-398 (2d Cir. 2006) (multiple citations omitted).
In this case, Plaintiff was charged with violating Connecticut General Statutes
53a-125b, which states in relevant part: (a) A person is guilty of larceny in the sixth
degree when he commits larceny as defined in section 53a-119 and the value of the
property or service is five hundred dollars or less. Connecticut General Statutes 53a-
119 states, in part: A person commits larceny when, with intent to deprive another of
property or to appropriate the same to himself or a third person, he wrongfully takes,
obtains or withholds such property from an owner. Plaintiff does not contest the fact
that the hose belonged to the City and that its value was less than $500. There is also
no dispute that he picked up the hose and moved it out of view of the camera.
In the present case, there was a finding of probable cause when J udge Ronan
signed the Arrest Warrant Application submitted by State Police Detective Buglione.
Given this finding of probable cause, Plaintiff will find it very difficult to prove the
11

absence of probable cause. Nonetheless, in his Complaint, Plaintiff alleges that the
Defendants: acted jointly and in concert with the unlawful purpose of causing Plaintiff to
be arrested and prosecuted on criminal charges (6); on J uly 11, 2008, Detective
Buglione prepared, signed and swore to an affidavit and knowingly included in such
affidavit false and malicious statements by the Defendants (7); on the basis of the
affidavit, J udge Ronan signed a warrant for Plaintiffs arrest (8); Buglione arrested
Plaintiff (9); a States Attorney signed a criminal information charging Plaintiff with
larceny in the sixth degree (10); and Plaintiff was acquitted of such charges (11).
Thus, Plaintiffs claim is essentially that the Defendants provided knowingly false
information to Detective Buglione and in the absence of such allegedly knowingly false
information, J udge Ronan could not have found probable cause to support Plaintiffs
arrest. This narrow theory of liability has found some support in the law but is very
difficult for a plaintiff to prove.
Ordinarily, an arrest or search pursuant to a warrant issued by a neutral
magistrate is presumed reasonable because such warrants may only issue upon a
showing of reasonable cause. Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012)
(quotation marks and citations omitted). However, [w]here an officer knows, or has
reason to know, that he had materially misled a magistrate on the basis for a finding of
probable cause, the shield of qualified immunity is lost. Velardi v. Walsh, 40 F.3d 569,
573 (2d Cir. 1994) (quotation marks omitted). In order to state a claim based on a
misleading warrant, Plaintiff must establish that each Defendant intentionally or
recklessly made false statements in the warrant application and those statements
were necessary to the finding of reasonable cause. Loria v. Gorman, 306 F.3d 1271,
12

1289 (2d Cir. 2002). The Second Circuit has relied upon the corrected affidavit
doctrine under which any errors in the arrest warrant affidavit are not material if, after
crossing out any allegedly false information and supplying any omitted facts, the
corrected affidavit would have supported a finding of probable cause. Velardi, 40 F.3d
at 573.
J udge Newman, in Velardi, 40 F.3d at 573-74, explained further:
A section 1983 plaintiff challenging a warrant on this basis must make the
same showing that is required at a suppression hearing under Franks v.
Delaware, 438 U.S. 154, 155-56 (1978): the plaintiff must show that the
affiant knowingly and deliberately, or with a reckless disregard of the truth,
made false statements or material omissions in his application for a
warrant, and that such statements or omissions were necessary to the
finding of probable cause. Unsupported conclusory allegations of
falsehood or material omission cannot support a Franks challenge; to
mandate a hearing, the plaintiff must make specific allegations
accompanied by an offer of proof. Moreover, when police officers move
for summary judgment on the basis of qualified immunity, "plaintiffs may
not unwrap a public officer's cloak of immunity from suit simply by alleging
even meritorious factual disputes relating to probable cause, when those
controversies are nevertheless not material to the ultimate resolution of
the immunity issue." Disputed issues are not material if, after crossing out
any allegedly false information and supplying any omitted facts, the
"corrected affidavit" would have supported a finding of probable cause.
. . .
In sum, to survive the defendants' motion for summary judgment on this
issue, the plaintiffs must satisfy three conditions: they must have made an
offer of proof supporting specific allegations of deliberate or reckless
misrepresentation, as required by Franks; the alleged misrepresentations
must be legally relevant to the probable cause determination; and there
must be a genuine issue of fact about whether the magistrate would have
issued the warrant on the basis of "corrected affidavits."
(citations omitted). In this case, Plaintiff cannot make anything more than a feeble offer
of proof of deliberate or reckless misrepresentation by the Defendants. Further,
Plaintiff cannot show that the alleged deliberate or reckless misrepresentation by each
13

Defendant was material or relevant to the probable cause determination. Finally,
Plaintiff cannot demonstrate a genuine issue of material fact about whether J udge
Ronan would have issued the warrant on the basis of the corrected affidavits.
J udge Ronans probable cause determination was based on the submission of
the Arrest Warrant Application by State Police Detective Buglione. Thus, the Arrest
Warrant Application is the operative document in determining whether any false
statements were submitted to J udge Ronan and whether any such allegedly false
statements were material to the determination of probable cause. It is not enough for
Plaintiff to show that Detective Buglione made any false statements, knowingly or
unknowingly, in his affidavit. Rather, Plaintiff first must prove, with respect to each
Defendant, that they made a knowingly false statement to Detective Buglione and that
such statement(s) made it into the Arrest Warrant Application that J udge Ronan
reviewed in finding probable cause.
4
If he is able to do so, Plaintiff then has the burden
of proving that such knowingly false statements of the Defendants appearing in the
affidavit are material to the probable cause determination. Plaintiff cannot do so.
In addition to being required to establish that the alleged knowingly false
misrepresentations of the Defendants were legally relevant to the probable cause
determination, Plaintiff is also required to prove, with respect to each of the Defendants,
that such Defendant initiated a proceeding against him. The Acevedo court explained:
"A person is deemed to have initiated a proceeding if his direction or
request, or pressure of any kind by him, was the determining factor in the
officer's decision to commence the prosecution . . . [or] the defendant's
request might reasonably have been found to be the proximate and
4
Any opinions held by any of the Defendants and reflected in the Arrest Warrant Affidavit should be irrelevant to
the probable cause determination.
14

efficient cause of the arrest." Zenik v. O'Brien, 137 Conn. 592, 596, 79
A.2d 769 (1951). Where a complaining witness has merely provided
potentially incriminating information to the police, he cannot be liable for
malicious prosecution. McHale, 187 Conn. at 448. "[I]f the defendant has
made a full and truthful disclosure and has left the decision to prosecute
entirely in the hands of the public officer, he cannot be held liable for
malicious prosecution." Id.
553 F. Supp. 2d at 172.
To recap, with respect to this motion, the Court is called upon to evaluate, while
viewing the admissible evidence in the light most favorable to the Plaintiff: (a) whether
Plaintiff has proven that the Defendants made any knowingly false statements that are
contained in the Arrest Warrant Application; (b) whether any such knowingly false
statements are material to the probable cause determination; and (c) whether the
Defendants direction, request or pressure was the determining factor in Detective
Bugliones decision to apply for the arrest warrant and to arrest Plaintiff.
According to the Arrest Warrant Affidavit, Chief Hale contacted the State Police
and requested assistance with a larceny involving one of his officers. Chief Hale
advised that Officer Mustafa Salahuddin was captured on a department surveillance
camera during his shift on May 15, 2008, stealing a garden hose from the rear stairwell
of the department. Salahuddin Tr. at Exhibit 5 (p. 1 of 5). In the Arrest Warrant
Application, Chief Hale is not alleged to have stated anything further. State Police
Detective Buglione swore that he commenced his investigation and viewed the
videotape. Detective Buglione recorded his own observations of what was depicted on
the videotape. Salahuddin Tr. at Exhibit 5 (pp. 1-2 of 5). Plaintiff objects to Chief Hales
characterization of what he observed on the video--specifically, that Plaintiff was
involved in a possible larceny. If Chief Hales opinion based on his observation of the
15

video were eliminated from the Arrest Warrant Application, such omission would be
inconsequential and would have no impact on the Arrest Warrant Application. Detective
Buglione made his own review and reached his own conclusions. Chief Hale made no
misrepresentations of fact and his opinion was inconsequential to the probable cause
determination. Additionally, while Chief Hale requested that the State Police conduct an
investigation of what appeared to be a larceny, such request does not appear to be the
determinative factor in Detective Bugliones decision to apply for an arrest warrant or to
arrest Plaintiff. The record reveals no evidence that Chief Hale directed or even
requested that State Police Detective Buglione apply for an arrest warrant. Therefore,
Chief Hale is entitled to the protections of qualified immunity.
Lieutenant Cota was interviewed as part of Detective Bugliones investigation.
According to the Arrest Warrant Affidavit, the following statements are attributed to
Lieutenant Cota:
a. On May 14, 2008, the Citys Public Works Department purchased two
new hoses for the police department for $24.99 each;
b. DiVencenzo put the hoses behind the double doors that lead to the
rear stairwell of the building;
c. On May 15, 2008, he was notified by DiVencenzo that one of the
hoses had been stolen;
d. He and DiVencenzo thoroughly searched the department but could not
locate the hose;
e. A review of the departments surveillance video revealed that Plaintiff
had taken the hose;
16

f. On the video, Plaintiff is seen covering the hose with a jacket, picking it
up and walking toward the rear stairwell and out of view of the camera;
g. On May 20, 2008, DiVencenzo found the hose hidden in a cardboard
box in the basement of the building;
h. On May 15, 2008, Plaintiff was assigned to the local patrol which
includes the police department and officers in that assignment
commonly drive through the departments parking lot without
requesting permission;
i. According to dispatch records, no other patrol officer was at the police
department at that time;
j. He spoke to Blackwell who related that Plaintiff had advised
dispatchers that he used the hose to prop open the door to bring in or
out DARE bags;
k. This did not make sense to him since there is a pushbar on the inside
of the door and there was no need to keep the door propped open;
l. Every officer has an access card assigned to them to open the door
from the outside and a record is maintained of the activity of the door;
m. The back door has an internal alarm set to 1.5 minutes before dispatch
is notified that the back door has been open too long;
n. On May 15, 2008, department records indicated that Plaintiff was the
only person to activate the back door (at 5:18 a.m. and 5:44 a.m.) and
there was no indication that the door was open for more than 1.5
minutes; and
17

o. The hose was not on the shelf when he searched the department on
May 15, 2008.
To date, Plaintiff has not claimed that any of these statements are false. Plaintiff has no
basis to challenge such facts because he admits that he did not speak to Lieutenant
Cota about the incident. Because Lieutenant Cotas statements are not claimed to be
false, there would be no need to go through the exercise of eliminating them from the
affidavit and examining a corrected affidavit. To the extent that Plaintiff claims that
Lieutenant Cota expressed an opinion that the video indicated that Plaintiff appeared to
steal the hose,
5
such opinion is immaterial to the affidavit because Detective Buglione
observed the video for himself and conducted his own investigation. Further, there is no
evidence to suggest that Lieutenant Cota initiated any criminal proceedings against
Plaintiff. Certainly, Lieutenant Cota helped search the department after learning from
Mr. DiVencenzo that the hose was missing and he also looked at the video to see if
anyone was depicted as having taken the hose. However, he turned any determination
as to whether an investigation should be commenced over to Chief Hale, who called the
State Police. As the Arrest Warrant Affidavit makes clear, Lieutenant Cota provided
facts in response to the investigation conducted by Detective Buglione. There is no
evidence that Lieutenant Cota made any request or applied any pressure to Detective
Buglione that was the determining factor in Detective Bugliones decision to apply for an
arrest warrant for Plaintiff. There is no evidence to suggest that Lieutenant Cota did
anything further than cooperate with the State Police investigation as a witness. As
5
In the Arrest Warrant Application, there does not appear to be a mention of any opinion expressed by Lieutenant
Cota--just the facts.
18

such, there is no basis upon which to hold Lieutenant Cota liable for malicious
prosecution.
Lieutenant Wayne Williams is not mentioned in the Arrest Warrant Application at
all.
6
There are no statements made by Lieutenant Williams that formed the basis for the
finding of probable cause. There is no evidence at all that Lieutenant Williams initiated
any charges against Plaintiff. In short, there is no possible basis upon which Lieutenant
Williams could be held liable for malicious prosecution.
In the Arrest Warrant Application, Dispatcher David Blackwell is credited with
making the following statements:
a. he arrived for work at 0800 hours on Thursday, May 15, 2008. During
the early morning hours, Mr. DiVencenzo came into dispatch and
asked him if he took a garden hose. Blackwell said that he thought it
was a joke but DiVencenzo told him that someone must have stolen
the hose. Blackwell thought that Lieutenant Cota overheard this,
seemed upset and threatened to pull an internal affairs investigation if
the hose was not returned;
b. On Monday, May 19, 2008, Blackwell reported back to work and
relieved Patty Rowland, who told him that during the shift she had
been speaking to Plaintiff. According to Rowland, Plaintiff said that if
management had video, he would be suspected because he had used
the hose to prop open the back door in order to bring in DARE supplies
6
Plaintiff further testified that Wayne Williams did not testify at the criminal trial.
19

and then threw it in the hall. Blackwell stated that this sounded hard to
believe because there is a chair near the door that is used to prop
open the door.
In short, Mr. Blackwell submitted to questioning by State Police and relayed hearsay
statements. The Arrest Warrant Application recounts the statements made by
DiVencenzo and Rowland to State Police. Thus, the statements attributed to Mr.
Blackwell are simply corroboration of the statements made by others. If Mr. Blackwells
statements were eliminated completely from the Arrest Warrant Application, it would
have no effect on the probable cause determination. Mr. Blackwells hearsay
statements appear to add no value. Additionally, there is no evidence to suggest that
Mr. Blackwell made any request or exerted any pressure on Detective Buglione that
was a determinative factor in Detective Bugliones decision to apply for an arrest
warrant. Blackwell certainly did not initiate any criminal proceedings against Plaintiff.
Thus, Blackwell cannot be held liable for malicious prosecution.
7

The statements attributable to Mr. DiVencenzo contained in the Arrest Warrant
Application are as follows:
a. Two Green Thumb Never Kink hoses were purchased on May 14,
2008 and supervisor J udd Glaze dropped them off at the police
department that afternoon;
7
Plaintiff also complains about Mr. Blackwells alleged trial testimony in which he allegedly testified that Plaintiff
gave him a ride home from work one night and Plaintiff admitted to transporting the hose to a different location to
wash off the cruiser. Such statement does not appear in the Arrest Warrant Application and is irrelevant to this
inquiry. By the time of trial, Judge Ronan had already made the probable cause determination. Such trial
testimony goes toward a finding of guilt or acquittal--not probable cause.
20

b. He left the police department at approximately 2:30 p.m. and left the
hoses, in their original packaging, behind the double doors in the rear
stairwell;
c. The next morning, one of the hoses was missing;
d. He searched the building but could not find the hose;
e. He eventually told Lieutenant Cota and Sergeant Owens about the
missing hose;
f. He spoke to Blackwell who related that Patty Rowland had said that
Plaintiff had used the hose to prop open the back door;
g. He heard Plaintiff say to Blackwell and Rowland that he used the hose
to prop open the back door;
h. On May 20, 2008, he was cleaning a bathroom and noticed that more
toilet paper was needed and went to the hallway where he keeps an
open cardboard box of toilet paper on top of a table. He found a
plastic Tupperware type of lid on the cardboard box. He reached in the
box to get the toilet paper and found the missing hose;
i. He said that he never puts a plastic lid on the cardboard box and the
last time he had seen the lid, it had been on an empty shelf at the
bottom of the stairs. He said it was obvious that someone was
intentionally trying to hide the hose;
j. Plaintiff never told him that he had put the hose on a shelf in the
basement. The shelf is located along the wall in the basement at the
bottom of the rear stairs and is completely empty. If Plaintiff had told
21

him that the hose was on the shelf, he would have found it. The hose
was not on the shelf when he searched for it on May 15, 2008.
As the Arrest Warrant Application makes clear, Mr. DiVencenzo was aware that Plaintiff
said that he used the hose to prop open the back door of the building. Plaintiff claims
that, in addition to saying that he used the hose to prop open the back door, he also told
Mr. DiVencenzo where the hose could be found--on the racks next to the DARE closet.
According to the Arrest Warrant Application, Mr. DiVencenzo said that Plaintiff never
told him that he put the hose on the shelf in the basement. DiVencenzo said the shelf is
located along the wall in the basement at the bottom of the rear stairs and is completely
empty. He said if Salahuddin told him the hose was on the shelf he would have found it
and it would not have been an issue. Salahuddin Tr. at Exhibit 5 (p. 4 of 5). Thus,
according to Plaintiff, Mr. DiVencenzos above statement that Plaintiff did not tell him
where the hose was located was knowingly false.
8
Plaintiff also appears to claim that
Mr. DiVencenzos statement that the hose was not on the shelf the next morning and his
statement that he found the hose in the toilet paper box are false. However, Plaintiff
concedes that it is possible that someone could have moved the hose from where he
allegedly left it to the toilet paper box. Thus, Plaintiff cannot establish that Mr.
DiVencenzos statements about where the hose was found are false. In sum, the only
factual statements attributable to Mr. DiVencenzo that Plaintiff can legitimately claim to
be knowingly false is the statement that Plaintiff never told him that he put the hose on
the shelf in the basement.
8
Along the same lines, Plaintiff complains that Mr. DiVencenzo never got back to him about the hose and never
told him that he could not find the hose in the basement. Obviously, the Defendants disagree with Plaintiffs
contentions.
22

In order to determine whether such alleged knowingly false statement by Mr.
DiVencenzo was material to J udge Ronans probable cause determination, additional
inquiry into what was contained in the Arrest Warrant Application is necessary. The
Arrest Warrant Application reflects that Plaintiff made the following statements:
a. He has been a police officer in Ansonia since 1994 and was a DARE
officer;
b. On May 15, 2008, at the end of rollcall, he asked Sgt. Flynn if he could
get Sgt. Owens keys to the DARE closet from his office since Plaintiff
and Owens work opposite shifts;
c. he used the keys in Sgt. Owens office to unlock the DARE closet in
the basement and returned the keys to Sgt. Owens office;
d. he and Patty Rowland had an agreement to get the DARE graduation
bags together during the shift;
e. While on patrol, he spilled coffee on the roof of his cruiser. He decided
to go to the police department, wash the car and get the DARE bags
ready;
f. When he arrived at the department, he noticed no hose attached to the
building, parked in the back and went inside;
g. He noticed two garden hoses in the back stairwell;
h. He was carrying his jacket and, in order to free up his hands, he threw
the jacket on the hose and picked the hose and jacket up and used the
hose to prop open the door while he went to the DARE closet. He
decided not to prepare the bags. He also decided not to use the hose
23

to wash the cruiser and, instead to wash the cruiser at the cleaners
next to the Roma restaurant;
i. He put the hose that he had been using to prop the door open on the
shelf downstairs;
j. He said that he used the hose for about 5 minutes to prop the door
open;
k. The next day, he was speaking with Patty Rowland who related that a
hose had been stolen and it was on videotape. He told Rowland and
DiVencenzo that he had used the hose to prop open the back door.
He told Rowland and DiVencenzo that he never took the hose out of
the building and put it on a shelf;
l. When told that his account differed from that of DiVencenzo and
Rowland, he said that he told both of them that the hose was in the
basement and never left the building;
m. When asked why he did not return the hose to the back stairwell
(where he found it) or tell Lieutenant. Cota, Plaintiff had no answer;
n. When confronted with revelation that the door was alarmed, Plaintiff
changed his story from 5 minutes to 2 minutes;
o. Plaintiff agreed to prepare a written statement for the State Police and
left a voicemail indicating that he had done so but never turned in the
statement.
As noted in the Statement of Facts Not in Dispute, Plaintiff takes issue with some of the
facts and conclusions that Detective Buglione attributed to Plaintiff. However, that is
24

irrelevant to the examination of whether Mr. DiVencenzos statement that Plaintiff did
not tell him that he left the hose on the basement shelf was material to the probable
cause determination.
If Mr. DiVencenzos statement (that he said that Plaintiff never told him that he
put the hose on the shelf in the basement. DiVencenzo said that the shelf is located
along the wall in the basement at the bottom of the stairs and is completely empty. He
said if Salahuddin told him the hose was on the shelf he would have found it and it
would not have been an issue.) were eliminated from the Arrest Warrant Application,
J udge Ronan would have been left with facts that established: the hoses were
purchased and left in the back stairwell; Plaintiff picked up one of the hoses along with
his jacket and moved towards the back door; Plaintiff said that he used it to prop open
the back door and left it on a shelf in the basement; Plaintiff changed his estimate of the
amount of time that the rear door was open when confronted with evidence as to the
door being alarmed; the next morning, Mr. DiVencenzo and Lt. Cota searched the
building but could not find the hose; the video revealed Plaintiff as having picked up the
hose and carried it off; on May 19, 2008, Chief Hale contacted the State Police to
conduct an investigation; on May 20, 2008, the hose reappeared concealed under a
Tupperware lid in a box of toilet paper; and Detective Buglione represented that Plaintiff
did not have answers to certain questions. Detective Buglione included facts in his
affidavit that cast doubt on Plaintiffs story and suggested that Plaintiff was less than
credible. To put it more succinctly, J udge Ronan was presented with a sworn affidavit
showing: a brand new hose was purchased; Plaintiff was caught on video picking up
the hose and moving it; although Plaintiff claims he left it on a shelf in the department,
25

the hose was gone the next day; and the hose only reappeared after the State Police
were contacted. This is enough for a reasonable person to believe that Plaintiff had
wrongfully taken the hose--which cost less than $500. Such facts are sufficient for a
finding of probable cause to believe that Plaintiff violated Connecticut General Statutes
53a-125b. Therefore, Mr. DiVencenzos statement was not material to the probable
cause determination. Because his statement was not material to the probable cause
determination, Mr. DiVencenzo cannot be held liable for malicious prosecution.
Additionally, the record reflects that Mr. DiVencenzo did nothing to request an
investigation of Plaintiff or the initiation of criminal charges against Plaintiff. He was the
custodian and it was not his place to initiate any such charges. Rather, Mr. DiVencenzo
was obviously miffed at the disappearance of a brand new hose and wanted to get it
back. He cooperated with Detective Buglione and related what he knew. No
reasonable juror could conclude that Mr. DiVencenzo initiated the charges against
Plaintiff. Therefore, to the extent that he may be found to be a state actor, Mr.
DiVencenzo is entitled to qualified immunity.
3. Insufficient Personal Involvement.
In addition to the reasons stated above, Plaintiff cannot establish a Constitutional
violation against some or all of the Defendants because of a lack of personal
involvement. Second Circuit law establishes that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an award of damages under
1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Section 1983 imposes
liability only on the official causing the violation. Camacho v. Fairfield County, 2004
U.S. Dist. LEXIS 4296 at *18 (D. Conn. March 12, 2004). Generally, [a] supervisor
26

may not be held liable under section 1983 merely because his subordinate committed a
constitutional tort. However, a supervisor may be found liable for a subordinates action
when he (1) directly participated in the action; (2) failed to remedy the wrong after
learning of the violation through a report or appeal; (3) created a policy or custom under
which unconstitutional practices occurred, or allowed such a policy or custom to
continue; or (4) was grossly negligent in managing subordinates who caused the
unlawful condition or event. Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 251 (D.
Conn. 2008)(citing, Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
In this case, the Defendants provided statements to the State Police in
connection with the State Polices investigation. Because the State Police conducted
the investigation, none of the Defendants could have supervisory liability because they
do not supervise the State Police. They were not involved in the investigation,
assessment of the evidence, the application for an arrest warrant, the arrest or the
prosecution of Plaintiff. In short, none of the Defendants had sufficient personal
involvement in the prosecution of Plaintiff to sustain civil liability. The independent
actions of the State Police broke any chain of causation between the actions of the
Defendants and Plaintiffs arrest and prosecution. Thus, all of the Defendants should be
found to have insufficient personal involvement in this case.
Additionally, the evidence in this case reveals that Lieutenant Wayne Williams is
not mentioned at all in the Arrest Warrant Application. The record does not reveal any
statement that he made with respect to this investigation. Lieutenant Williams certainly
has no personal involvement in any malicious prosecution of Plaintiff and is entitled to
summary judgment on that basis.
27

Further, Dispatcher Blackwell related some hearsay statements to Detective
Buglione in response to Detective Bugliones questioning. Mr. Blackwells involvement
is tangential at best and is insufficient to create liability for the alleged malicious
prosecution of Plaintiff.
For these reasons and the reasons stated above, Plaintiff cannot establish a
violation of his Constitutional rights by any of these Defendants. Consequently, the
Defendants are entitled to the protections of qualified immunity and the entry of
summary judgment in their favor.
5. Reasonable Officers in the Defendants Positions Would Find the
Defendants Actions to Be Objectively Reasonable.

In the event that Plaintiff were found to have established a genuine issue of
material fact as to whether he suffered a violation of his Constitutionally protected rights
by one or more of the Defendants, the Court must move to the second step of the
qualified immunity analysis and determine whether the right he seeks to protect was
clearly established as of J uly 15, 2008--the date of his arrest. In determining whether a
particular right was clearly established at the time defendants acted, [the Second
Circuit] has considered three factors: (1) whether the right in question was defined with
reasonable specificity; (2) whether the decisional law of the Supreme Court and the
applicable circuit court support the existence of the right in question; and (3) whether
under preexisting law a reasonable defendant official would have understood that his or
her acts were unlawful. Yorzinski v. Alves, 477 F. Supp. 2d 461, 469 (D. Conn. 2007)
(quoting, J ermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S.
962 (1992)). [I]f plaintiff had a clearly established, constitutionally protected right that
28

was violated by the actions of the [defendants], [plaintiff] must demonstrate that
defendants actions were not objectively reasonable. Yorzinski 477 F. Supp. 2d at 469
(citing, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The objective reasonableness
test is met and the defendant is entitled to immunity if officers of reasonable
competence could disagree on the legality of defendants actions, taking into account
the facts and circumstances of each particular case . . . . Id. (citing, Thomas v. Roach,
165 F.3d 137, 143 (2d Cir. 1999)).
In this case, Chief Hale contacted the State Police to conduct an investigation in
order to eliminate any taint of bias or partiality. Such decision was objectively
reasonable. Plaintiff has argued that the State Police should not have been contacted
at all and that Ansonia should have done a preliminary investigation before turning it
over to the State Police. In Plaintiffs view, the situation would have been cleared up
more quickly that way. However, Plaintiff cannot dispel qualified immunity by second-
guessing the decisions of the Defendants. A preliminary investigation posed the danger
of compromising the integrity of any later investigation. While Plaintiff may have
preferred that Chief Hale conduct a preliminary investigation, such preference does not
change the fact that calling upon an outside law enforcement agency to investigate a
potential crime committed by an officer is an objectively reasonable course of action.
No police chief in Chief Hales position would conclude that he or she was violating
Plaintiffs Constitutionally protected rights by asking for the independent investigation.
Indeed, most would view such action as protecting Plaintiffs Constitutional rights.
Once again, Lieutenant Williams is not mentioned in the Arrest Warrant
Application. The record does not reflect that he did anything in connection with the
29

arrest or prosecution of Plaintiff. Therefore, any reasonable officer in his position would
not think that his actions violated Plaintiffs Constitutionally protected rights.
Lieutenant Cota helped Mr. DiVencenzo search the police department building
for the hose, viewed the video and reported his observations to Chief Hale. Thereafter,
he fully cooperated with the State Police investigation. Again, Plaintiff admits that he
never spoke to Lieutenant Cota about the incident. Plaintiff has not and cannot
challenge the factual statements of Lieutenant Cota that appeared in the Arrest Warrant
Application. No reasonable officer in Lieutenant Cotas position would view his actions
as being objectively unreasonable.
Mr. Blackwell was a dispatcher and cooperated with the State Police
investigation. According to the Arrest Warrant Application, he related what he had
heard from others. Plaintiff has not challenged the veracity of Mr. Blackwells hearsay
statements.
9
In other words, there is nothing objectively false or material in the
statements attributed to Mr. Blackwell in the Arrest Warrant Application.
Mr. DiVencenzo is a custodian who went looking for a missing hose. He
cooperated with the State Police investigation. Plaintiff claims that Mr. DiVencenzo
falsely told investigators that Plaintiff did not tell him where the hose could be found.
Mr. DiVencenzo did not recall Plaintiff saying such a thing. Once again, even if one
were to assume that such statement was false, it was not material to the probable
cause determination. No custodian in Mr. DiVencenzos position would believe that his
actions in answering the State Polices questions violated Plaintiffs Constitutionally
protected rights.
9
Again, Plaintiff complains about Mr. Blackwells alleged trial testimony which is irrelevant because it occurred
after the probable cause decision.
30

Because all of the Defendants actions were objectively reasonable, they are
entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, summary judgment should enter in favor of the
Defendants on Plaintiffs Complaint.
DEFENDANTS,
KEVIN HALE, ANDREW COTA, WAYNE
WILLIAMS, DAVID BLACKWELL AND
J OSEPH DIVENCENZO

By: /s/
J oseph W. McQuade, ct12121
Kainen, Escalera & McHale, P.C.
21 Oak Street, Suite 601
Hartford, CT 06106
Tel: (860) 493-0870
Fax: (860) 493-0871
E-mail: [email protected]
Their Attorney

31


CERTIFICATE OF SERVICE
The undersigned certifies that on this 30th day of April 2014, a copy of the
foregoing Memorandum of Law in Support of Defendants Motion for Summary
J udgment was filed electronically and served by mail on anyone unable to accept
electronic filing. Notice of this filing will be sent by email to all parties who have
appearances as of the time of this filing, by operation of the Courts electronic filing
system or by mail to anyone unable to accept electronic filing as indicated on the Notice
of Electronic Filing. Parties may access this filing through the Courts CM/ECF System.

/s/
J oseph W. McQuade, ct12121

32


Memorandum of Law, Salahuddin v. Hale

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