Lamar v. Brevetti ( 2017 )

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SOLOMON LAMAR v. FRANCIS
BREVETTI ET AL.
(AC 37893)
DiPentima, C. J., and Prescott and Alander, Js.
Argued December 6, 2016—officially released May 16, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Roraback, J.)
Daniel S. DiBartolomeo, filed a brief for the appel-
lant (plaintiff).
Daniel J. Foster, with whom, on the brief, was Joseph
A. Mengacci, for the appellees (defendants).
Opinion
PER CURIAM. The plaintiff, Solomon Lamar, appeals
from the summary judgment rendered in favor of the
defendants, Francis Brevetti, Michael Guglioti, Vernon
Riddick, Jr., Fernando Spagnolo, David Janetty (individ-
ual defendants) and the city of Waterbury (city). On
appeal, the plaintiff contends that the court improperly
rendered summary judgment with respect to (1) his
negligence and recklessness claims against the individ-
ual defendants, (2) his negligent and intentional inflic-
tion of emotional distress claims against Brevetti and
(3) his claims against the city pursuant to General Stat-
utes §§ 7-465 and 7-101a. We affirm the judgment of the
trial court.
In his complaint filed on August 19, 2010, the plaintiff
alleged twenty-four counts against the six defendants.1
The genesis of this action was the arrest of the plaintiff
by Brevetti, a Waterbury police officer, on July 31, 2008.
The other individual defendants were high ranking
members of the Waterbury Police Department. On
August 31, 2010, the defendants removed the action to
United States District Court for the District of Connecti-
cut (District Court). On September 26, 2012, the District
Court granted the defendants’ motion for summary
judgment with respect to the plaintiff’s claims of civil
rights violations, false arrest, malicious prosecution and
false imprisonment.
In that decision, the District Court set forth the fol-
lowing facts. On July 31, 2008, Brevetti responded to a
report of a disturbance. Lamar v. Waterbury, Docket
No. 3:10CV1390 (RNC), 2012 WL 4481677, *1 (D. Conn.
September 26, 2012). Accompanied by police officer
Michael Modeen, Brevetti interviewed the two com-
plainants, Hector Ramos and Jessie Stein, who stated
that the plaintiff had been yelling obscenities and mak-
ing threats. Id. Ramos and Stein directed the officers
to the home of the plaintiff, who answered the door in
a state of undress and appeared nervous. Id. During the
officers’ questioning, the plaintiff admitted to having a
dispute with his neighbors. Id. Brevetti placed the plain-
tiff under arrest for breach of peace. Id. The plaintiff
indicated that he needed to get a pair of pants, and
walked up the stairs. Id. The officers followed him to
the top of the stairs, where they placed him in handcuffs.
Id. At that point, the officers observed, in plain view, ‘‘a
clear plastic bag containing a white rock-like substance
[later determined to be crack cocaine], together with
a small scale and a box of sandwich bags.’’ Id. The
plaintiff was charged with breach of peace in the second
degree and various narcotics offenses.
As a result of this arrest, the Superior Court con-
ducted a hearing on May 13, 2009, on whether the plain-
tiff had violated a conditional discharge he had received
as a part of his sentence on a prior conviction.2 Id., *2.
The court, Fasano, J., determined that the plaintiff, by
virtue of this new arrest, had violated his conditional
discharge, notwithstanding some discrepancy between
Ramos’ testimony and the police report completed by
Brevetti. Id. Judge Fasano opened the judgment and
sentenced the plaintiff to three and one-half years incar-
ceration. Id.
On September 24, 2009, Brevetti was arrested after
narcotics were found in his vehicle. Id. He subsequently
pleaded guilty to tampering with evidence and posses-
sion of a controlled substance. Id.
The state elected not to prosecute the plaintiff for
the charges stemming from the July 31, 2008 incident.
Id. Following the plaintiff’s release from custody on
March 26, 2010, he commenced the present action. Id.
The defendants moved for summary judgment in the
District Court. In ruling on that motion, the District
Court determined that ‘‘[i]n this case, uncontested facts
establish that the plaintiff’s arrest [for breach of peace
and the narcotics charges] was supported by probable
cause. . . . Because probable cause existed for the
plaintiff’s arrest, the plaintiff cannot prevail on his
claims under [42 U.S.C.] § 1983 and state law for false
arrest, false imprisonment and malicious prosecution
as a matter of law and, accordingly, the defendants are
entitled to summary judgment on these claims.’’ Id., *3.
The District Court then declined to exercise supplemen-
tal jurisdiction over the remaining state law claims and
remanded the case to the Superior Court. Id.
On January 27, 2014, the defendants filed a motion
for summary judgment in the Superior Court as to the
plaintiff’s remaining claims. The plaintiff filed his objec-
tion on July 24, 2014. The court, Roraback, J., held
a hearing and subsequently issued a memorandum of
decision granting the defendants’ motion for summary
judgment. This appeal followed.3
As an initial matter, we set forth the legal principles
and the standard of review that guide our resolution of
this appeal. ‘‘The standards governing our review of a
trial court’s decision to grant a motion for summary
judgment are well established. Practice Book [§ 17-49]
provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case.’’ (Internal quotation marks
omitted.) Rivera v. CR Summer Hill, Ltd. Partnership,
170 Conn. App. 70, 74, 154 A.3d 55 (2017); see also
Heisinger v. Cleary, 323 Conn. 765, 776–77, 150 A.3d
1136 (2016).
Our review of the granting of a motion for summary
judgment is plenary; accordingly, we must decide
whether the trial court’s conclusions were legally and
logically correct and find support in the record. Mari-
ano v. Hartland Building & Restoration Co., 168 Conn.
App. 768, 777, 148 A.3d 229 (2016); see also Straw Pond
Associates, LLC v. Fitzpatrick, Mariano & Santos,
P.C., 167 Conn. App. 691, 704–705, 145 A.3d 292, cert.
denied, 323 Conn. 930, 150 A.3d 231 (2016).
After a review of the record, the briefs of the parties,
and the applicable law, we conclude that the court
properly rendered summary judgment in favor of the
defendants with respect to the entirety of the complaint.
First, it properly determined that the alleged negligent
actions of the individual defendants were discretionary,
and not ministerial, acts. See Smart v. Corbitt, 126
Conn. App. 788, 800, 14 A.3d 368 (police functions gener-
ally categorized as discretionary acts), cert. denied, 301
Conn. 907, 19 A.3d 177 (2011). Thus, the doctrine of
governmental immunity applied and barred the plain-
tiff’s claims of negligence. See Haynes v. Middletown,
314 Conn. 303, 312, 101 A.3d 249 (2014); Coley v. Hart-
ford, 312 Conn. 150, 161–62, 95 A.3d 480 (2014). Further,
the individual defendants were not subject to any excep-
tion to governmental immunity claimed by the plaintiff.
Specifically, the plaintiff failed to demonstrate that
there was a triable issue with respect to the imminent
harm requirement. See Brusby v. Metropolitan District,
160 Conn. App. 638, 657–58, 127 A.3d 257 (2015); see
also Haynes v. Middletown, supra, 322–23. The facts
and circumstances of this case preclude any finding
that the plaintiff’s arrest and subsequent imprisonment
were likely to cause him imminent harm.
Second, the court properly rendered summary judg-
ment in favor of the individual defendants as to the
negligent and intentional infliction of emotional distress
counts. The plaintiff expressly conceded, pursuant to
our Supreme Court’s decision in Brooks v. Sweeney,
299 Conn. 196, 209, 9 A.3d 347 (2010), that ‘‘if the arrest
by . . . Brevetti was supported by and based upon
probable cause, then an absolute bar would exist to [his]
common law tort claims.’’4 The existence of probable
cause, under the facts and circumstances of this case, is
irrefragable and therefore the court properly rendered
summary judgment as to the negligent and intentional
infliction of emotional distress counts.
Third, the plaintiff failed to adequately brief his chal-
lenge to the rendering of summary judgment on the
recklessness counts. See, e.g., State v. Fetscher, 162
Conn. App. 145, 155–56, 130 A.3d 892 (2015), cert.
denied, 321 Conn. 904, 138 A.3d 280 (2016); Heyward
v. Judicial Dept., 159 Conn. App. 794, 802–804, 124
A.3d 920 (2015). We decline, therefore, to consider the
plaintiff’s claims with respect to these counts.
Fourth, the plaintiff’s various claims against the city,
whether framed as direct liability or indemnification,
are derivative of his claims against the individual defen-
dants. In light of our conclusion that the individual
defendants are entitled to judgment as a matter of law
on all claims, the city also is entitled to judgment as a
matter of law on the claims asserted against it. Brooks
v. Sweeney, supra, 299 Conn. 221–22.
The judgment is affirmed.
1
The complaint set forth claims of negligence, negligent infliction of
emotional distress, recklessness, false arrest, malicious prosecution, false
imprisonment, intentional infliction of emotional distress and civil rights
violations by Brevetti, negligence, recklessness and civil rights violations
by Gugliotti, Riddick, Spagnolo, and Janetty, and civil rights violations by
the city. The complaint further alleged that the city was negligent and liable
for the conduct of the individual defendants.
2
As the result of the prior conviction, the plaintiff was subject to a condi-
tional discharge that required him to obey the law and avoid new arrests.
Lamar v. Waterbury, supra, 2012 WL 4481677, *2 n.2.
3
The plaintiff’s counsel did not appear for oral argument before this court
and subsequently did not provide us with any explanation for his absence.
4
In Brooks, our Supreme Court stated: ‘‘We note that the plaintiff does
not challenge the trial court’s determination that the existence of probable
cause defeats her claims of malicious prosecution and intentional and
negligent infliction of emotional distress. We therefore limit our analysis
to whether the trial court properly determined that probable cause existed
for the plaintiff’s arrest.’’ (Emphasis added.) Brooks v. Sweeney, supra, 299
Conn. 210 n.14. Given the plaintiff’s concession, we likewise limit our analy-
sis of these claims to the question of whether no genuine issue of material
fact existed with respect to the existence of probable cause.