Nodoushani v. Southern Connecticut State University

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OMID NODOUSHANI v. SOUTHERN CONNECTICUT
STATE UNIVERSITY ET AL.
(AC 34778)
DiPentima, C. J., and Lavine and Borden, Js.
Argued April 22—officially released August 5, 2014
(Appeal from Superior Court, judicial district of New
Haven, Young, J.)
William S. Palmieri, for the appellant (plaintiff).
Peter M. Haberlandt, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Ann E. Lynch, assistant attorney general, for
the appellees (defendant Cecil Murphy et al.).
Opinion
BORDEN, J. This appeal arises from an incident in
which the individual defendants, acting in their capaci-
ties as administrators of the defendant Southern Con-
necticut State University (university), allegedly made
false and malicious statements accusing the plaintiff of
submitting a fraudulent request for personal reimburse-
ment for funds that he purportedly expended at a pro-
fessional conference, ultimately resulting in his arrest.
The plaintiff, Omid Nodoushani, appeals from the sum-
mary judgment rendered by the trial court in favor of
the individual defendants, Cecil Murphy, Cheryl Norton,
and Bharat Bhalla.1 In this appeal, the plaintiff claims
that the trial court improperly granted the defendants’
motion for summary judgment on his false arrest, mali-
cious prosecution, and defamation claims because it
improperly determined that: (1) there was no genuine
issue of material fact with respect to his common-law
claims of false arrest and malicious prosecution; and
(2) the defendants had qualified immunity as to his
claim of defamation. We disagree with the plaintiff and
affirm the judgment of the trial court.
The plaintiff brought this action against the defen-
dants and the university, alleging, inter alia, false arrest
and malicious prosecution, pursuant to 42 U.S.C. § 1983
and the common law, and defamation. The defendants
and the university moved to dismiss the complaint, and
the court, A. Robinson, J., granted the motion to dismiss
with respect to the university; see footnote 1 of this
opinion; but denied the motion as to the defendants.
Thereafter, the defendants filed a motion for summary
judgment, which the plaintiff opposed pursuant to Prac-
tice Book § 17-45. Following oral argument, the court,
Young, J., issued a memorandum of decision granting
the defendants’ motion. This appeal followed.
The following procedural history and undisputed
facts are relevant to our resolution of this appeal. The
plaintiff was employed by the university as a tenured
professor of management and management information
systems, and as the director of the masters of business
administration program in the university’s school of
business. In June, 2005, the university granted permis-
sion to the plaintiff to attend and present a paper at the
Eighth Annual Conference on Ethics and Technology
(conference), to be held on June 24 and 25, 2005, at St.
Louis University in St. Louis, Missouri. On July 6, 2005,
the plaintiff submitted to Bhalla, the interim dean of
the university’s school of business, a request for reim-
bursement in the amount of $1213.61 for expenses alleg-
edly incurred while attending the conference. The
plaintiff submitted several documents in support of his
reimbursement request, including a copy of a confer-
ence registration receipt bearing his name and the
amount expended of $175.
Bhalla had concerns regarding the authenticity of the
plaintiff’s reimbursement request. Specifically, Bhalla
noted that the conference registration receipt was not
an original document, and, therefore, may have been
altered. In light of his concerns, Bhalla sent a memoran-
dum to the plaintiff requesting further explanation and
documentation of his travel expenses. The plaintiff,
however, failed to provide original documentation of his
conference registration receipt. Consequently, Bhalla
contacted St. Louis University to determine whether
the plaintiff actually attended the conference and pre-
sented a paper, as he had claimed.
Through his inquiry, Bhalla obtained several docu-
ments from St. Louis University indicating that the
plaintiff had neither registered for the conference nor
presented a paper. Following this inquiry, Bhalla sent to
Norton, the university president, a memorandum with
supporting documents gathered pursuant to his investi-
gation (collectively, memorandum). The documents
submitted to Norton in support of Bhalla’s memoran-
dum included the following: (1) the plaintiff’s reim-
bursement request, including the registration receipt;
(2) a list of the conference registrants, which did not
include the plaintiff’s name; (3) an e-mail to Bhalla from
an employee of St. Louis University whose signature
appeared on the plaintiff’s registration receipt stating,
‘‘I believe that the receipt has been altered. I used the
Ariel 16 font with only the first letter of the first and
last names capitalized and the receipt has both names
typed in all caps and looks to be in a font other than
Ariel 16’’; (4) a list of individuals who presented papers
at the conference, which did not include the plaintiff’s
name; (5) an e-mail to Bhalla from the conference mod-
erator stating that the plaintiff did not present his paper.
Subsequently, the university police department
obtained a copy of Bhalla’s memorandum and applied
for a warrant to arrest the plaintiff on the charge of
attempt to commit larceny in the second degree in viola-
tion of General Statutes §§ 53a-49 and 53a-123. The affi-
davit supporting the warrant application stated that it
was based upon Bhalla’s memorandum to Norton, as
well as an investigation conducted by John Flynn, a
detective with the university police department. On Sep-
tember 20, 2005, the police arrested the plaintiff pursu-
ant to the arrest warrant. The state subsequently nolled
the criminal charge on July 18, 2006.
The plaintiff subsequently filed this action against
the defendants in their individual capacities, alleging,
inter alia, false arrest, malicious prosecution, and defa-
mation. With respect to his claims of false arrest and
malicious prosecution, the plaintiff alleged that after
he furnished his reimbursement request to Bhalla, ‘‘the
defendant Bhalla falsely, maliciously and without prob-
able cause to do so stated in writing in a letter to the
. . . [u]niversity and Norton, inter alia, that: A. The
plaintiff engaged in ‘[f]raudulent behavior and ethical
[misconduct]’; B. The plaintiff ‘[d]id not attend the 8th
annual Ethics and Technology Conference in St. Louis
University on June 24–25, 2005’; C. The plaintiff ‘did
not pay the registration fee of $ 175.00’; and D. The
plaintiff was on vacation from June 16, 2005 through
June 26, 2005.’’ The complaint further alleged that ‘‘[a]t
or about the time of the false allegations letter, the
defendants met and planned the steps they would take
against the plaintiff. . . . At that meeting, the defen-
dant Norton ordered her subordinates to take the
strongest possible measures against the plaintiff. . . .
Thereafter . . . the defendant Bhalla or one or more
agents, officers or employees of the . . . [u]niversity,
with malice and without probable cause to do so, con-
tacted the [university] [p]olice [d]epartment for the pur-
pose of having the plaintiff arrested. . . . In support
of the desire and effort to have the plaintiff arrested
. . . the defendant Bhalla or one or more agents, offi-
cers or employees of the . . . [u]niversity provided the
[university] police with the letter referenced above, con-
taining numerous false allegations and statements
regarding the plaintiff. . . . Numerous false state-
ments contained in the letter appeared verbatim in the
[a]ffidavit in support of the plaintiff’s arrest. . . .
‘‘Thereafter . . . the plaintiff was arrested, charged
with criminal attempt to commit larceny in the second
degree, and taken into custody from his office at the
. . . [u]niversity. . . . With malice and for the purpose
of using the criminal justice system to discredit the
plaintiff, support his termination from employment and
to ruin his academic career and cause him great emo-
tional financial harm, the defendants caused the issu-
ance of a warrant for the plaintiff’s arrest on the false
charge of attempt to commit larceny in the second
degree. . . . As a result, the plaintiff was arrested and
prosecuted continuously from September of 2005
through July of 2006, was required to hire attorneys for
his defense, was required to appear many times in
courts as an accused criminal to defend himself against
the false and spurious allegations . . . . The defen-
dants caused the aforesaid prosecution to be main-
tained and pressed against the plaintiff . . . . There
was no probable cause for the aforesaid arrest or prose-
cution of the plaintiff and his said arrest and prosecu-
tion by the defendants was malicious, wilful, and
wanton.’’
At a deposition conducted on June 3, 2010, in a related
federal action brought by the plaintiff,2 the plaintiff
admitted under oath that he forged the conference regis-
tration receipt and that he did not present his paper at
the conference. The plaintiff reaffirmed these admis-
sions at a deposition in this case conducted on March 2,
2012. Later, the defendants filed a motion for summary
judgment on all of the claims asserted against them
on the ground that the plaintiff failed to produce any
admissible evidence sufficient to raise a genuine issue
of material fact. The trial court granted the defendants’
motion for summary judgment. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
As a preliminary matter, we set forth the appropriate
standard of review. ‘‘In seeking summary judgment, it
is the movant who has the burden of showing the
nonexistence of any issue of fact. The courts are in
entire agreement that the moving party for summary
judgment has the burden of showing the absence of
any genuine issue as to all the material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. The courts hold
the movant to a strict standard. To satisfy his burden
the movant must make a showing that it is quite clear
what the truth is, and that excludes any real doubt as
to the existence of any genuine issue of material fact.
. . . As the burden of proof is on the movant, the evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Ramirez v. Health Net of the Northeast, Inc., 285
Conn. 1, 10–11, 938 A.2d 576 (2008).
I
We first address the plaintiff’s claim that the trial
court improperly granted the defendants’ motion for
summary judgment with regard to his false arrest and
malicious prosecution claims. As a threshold matter,
we note the plaintiff’s contention that his complaint
alleges claims of false arrest and malicious prosecution
pursuant to both § 1983 and the common law. The
defendants contend that the plaintiff failed to properly
plead his claims pursuant to § 1983, and, therefore, the
claims set forth in the complaint are based entirely on
the common law. For the purposes of this appeal, we
agree with the trial court’s conclusion that it is not
necessary to determine whether the plaintiff’s § 1983
claims were properly alleged in the complaint, in light
of the fact that our substantive analysis of the false
arrest and malicious prosecution claims is virtually
identical under § 1983 and the common law.3 Jocks v.
Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (‘‘[c]laims
for false arrest or malicious prosecution, brought under
§ 1983 . . . are ‘substantially the same’ as claims for
false arrest or malicious prosecution under state law’’).
Turning to the substance of the plaintiff’s false arrest
and malicious prosecution claims, the plaintiff contends
that the trial court improperly granted the defendants’
motion for summary judgment because there existed a
genuine issue of material fact regarding whether the
defendants ‘‘instigated the proceedings against [him]
by contacting the police and then encouraging . . .
prosecution’’ on the basis of false allegations.4 (Internal
quotation marks omitted.) We disagree.
We first set forth the elements of the common-law
claims of false arrest and malicious prosecution. ‘‘False
imprisonment, or false arrest, is the unlawful restraint
by one person of the physical liberty of another. . . .
False imprisonment is categorized as an intentional tort
for which the remedy at common law was an action
for trespass. . . . [I]n the case of a false imprisonment
the detention must be wholly unlawful . . . . To pre-
vail on a claim of false imprisonment, the plaintiff must
prove that his physical liberty has been restrained by
the defendant and that the restraint was against his
will, that is, that he did not consent to the restraint or
acquiesce in it willingly.
‘‘An action for malicious prosecution against a private
person requires a plaintiff to prove that: (1) the defen-
dant initiated or procured the institution of criminal
proceedings against the plaintiff; (2) the criminal pro-
ceedings have terminated in favor of the plaintiff; (3)
the defendant acted without probable cause; and (4)
the defendant acted with malice, primarily for a purpose
other than that of bringing an offender to justice. . . .
‘‘The weight of modern authority is that where the
defendant has attempted to comply with legal require-
ments, and has failed to do so through no fault of his
own, false imprisonment will not lie, and the remedy
is malicious prosecution. The policy is to give the defen-
dant the privilege of making reasonable efforts to bring
his case properly before the court, without liability
unless his ultimate purpose is an improper one. W.
Prosser, Torts (4th Ed.) § 11.’’ (Citations omitted;
emphases added; internal quotation marks omitted.) Lo
Sacco v. Young, 20 Conn. App. 6, 19–20, 564 A.2d 610,
cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).
We conclude that the defendants satisfied their initial
burden of demonstrating the absence of a genuine issue
of material fact with regard to the plaintiff’s false arrest
and malicious prosecution claims. See Ramirez v.
Health Net of the Northeast, Inc., supra, 285 Conn. 10–
11. We agree with the trial court’s determination that,
‘‘[i]n viewing the evidence in the light most favorable
to the plaintiff, the defendants have offered substantial
evidence that the defendants utilized the proper legal
channels to report their complaint against the plaintiff.’’
Therefore, the defendants demonstrated that there was
no genuine issue of material fact as to whether they
acted unlawfully or without probable cause.
In particular, the defendants submitted ample docu-
mentation in support of their motion for summary judg-
ment, thereby demonstrating that any suspicions with
respect to the fraudulent nature of the plaintiff’s reim-
bursement request were well-founded and based on
a good faith investigation conducted by Bhalla. The
defendants submitted a copy of Bhalla’s affidavit, which
details the steps that he took to investigate the authen-
ticity of the plaintiff’s reimbursement request. They
additionally provided the documents that Bhalla
obtained pursuant to his investigation, including numer-
ous correspondences between Bhalla and St. Louis Uni-
versity, which indicate that the plaintiff was not
registered for the conference and did not present a
paper, as he purported to have done in his reimburse-
ment request. The defendants also submitted a copy of
the plaintiff’s sworn deposition testimony, wherein the
plaintiff admitted that he submitted to Bhalla a falsified
conference registration receipt, and that he did not pre-
sent a paper at the conference. All of these documents
demonstrate that any communications that the defen-
dants had with the university police regarding the plain-
tiff’s reimbursement request were not made unlawfully
or without probable cause. To the contrary, the defen-
dants’ allegations were supported by ample documenta-
tion that would be admissible at trial—including the
plaintiff’s own sworn admissions.
The plaintiff, on the other hand, failed to present any
admissible evidence demonstrating that the defendants
acted unlawfully or without probable cause. The only
evidence that the plaintiff submitted in opposition to
the defendants’ motion for summary judgment was his
deposition testimony, consisting of bare conclusory
assertions that the defendants directed the police to
arrest him on the basis of false allegations. See Chadha
v. Charlotte Hungerford Hospital, 97 Conn. App. 527,
540, 906 A.2d 14 (2006) (no genuine issue of material
fact where plaintiff relied on ‘‘his own conclusory state-
ments and personal assessment of the motives of the
defendants’’ in opposing summary judgment). Most
damaging to the plaintiff’s claims on appeal is his admis-
sion—set forth within the very deposition testimony on
which he presently relies—that he did not register for
the conference or present a paper as he purported to
do. Because the plaintiff’s claims of false arrest and
malicious prosecution remain wholly unsubstantiated,
we conclude that the trial court properly granted the
defendants’ motion for summary judgment.5
II
The plaintiff next claims that the trial court improp-
erly granted the defendants’ motion for summary judg-
ment with respect to his defamation claim.6 The
following additional facts are relevant to our disposition
of this claim.
The plaintiff alleged in his complaint that, in addition
to the facts set forth in support of his false arrest and
malicious prosecution claims, ‘‘[t]he defendants pub-
lished one or more defamatory statements about the
plaintiff. . . . The defamatory statements identified
the plaintiff to a third person. . . . The plaintiff’s repu-
tation suffered injury as a result of the statements.’’
Although the complaint does not set forth specific facts
in support of the plaintiff’s defamation claim, the plain-
tiff’s memorandum opposing the defendants’ motion
for summary judgment provides the following: ‘‘The
defendants defamed the plaintiff by publishing material
false allegations about him, falsely claiming both crimi-
nal behavior and professional incompetence. . . . The
defendants published this information to members of
the . . . [u]niversity [p]olice, to the [university] news-
paper, to the New Haven Register, and on the Internet.
. . . On the day after the plaintiff’s arrest, the defendant
Norton published material false statements about the
plaintiff to the [university] community at large in the
‘President’s Dialogue.’ . . . The plaintiff was identified
as the subject of defendant Norton’s comments, which
included stating that the plaintiff’s arrest was ‘cleaning
up the school’ . . . .
‘‘The plaintiff further suffered substantial harm to his
reputation. . . . He testified that, after the publication
of a claim that he had engaged in criminal conduct, he
was removed from his positions at Albertus Magnus
[College] and the University of New Haven. . . . Those
positions have never been restored to him. . . . The
plaintiff further was removed as [d]irector of the [mas-
ters of business administration] program at [the univer-
sity]. . . . That position has never been restored. . . .
The plaintiff had travel restrictions placed upon him by
his employer subsequent to the defendants’ defama-
tion.’’ (Citations omitted.)
The defendants, in moving for summary judgment,
argued that the plaintiff failed to establish a prima facie
defamation claim, and that the defendants were pro-
tected by the doctrine of qualified immunity.7 In its
memorandum of decision granting the defendants’
motion for summary judgment, the trial court deter-
mined that ‘‘[t]he plaintiff argues, without documentary
evidence, that the defendants published . . . defama-
tory statements to the university police, in the university
newspaper, to the New Haven Register, on the Internet,
and in the ‘President’s Dialogue.’ Although the plaintiff’s
proffered deposition testimony consists of assertions
that the statements were false, he provides no documen-
tary evidence to counter the defendants’ evidence as
to the truth of the allegedly defamatory statements
made by them. The plaintiff’s evidence merely consists
of his own assertions that the statements were false.
These assertions do not call into question the alleged
facts that the plaintiff submitted an altered receipt to
the university so as to be reimbursed for the registration
fee for a conference which the plaintiff neither regis-
tered [for] nor attended.’’ Moreover, the court stated
that ‘‘[e]ven if the defendants made defamatory state-
ments about the plaintiff, they have demonstrated that
they are entitled to qualified immunity. . . . The plain-
tiff has offered no admissible evidence to establish mal-
ice in fact or actual malice, which is required to
overcome the immunity.’’ (Citation omitted; emphasis
added.)
The plaintiff contends that the court improperly
relied upon the doctrine of qualified immunity as its
‘‘sole basis’’ for granting the defendant’s motion for
summary judgment because such doctrine was inappli-
cable as a matter of law. (Emphasis added.) Contrary
to the plaintiff’s characterization, the court cited the
doctrine of qualified immunity only as an alternative
basis for granting summary judgment, and not as the
sole basis for its decision. The court’s decision princi-
pally was based upon its determination that the plaintiff
failed to raise a genuine issue of material fact as to the
prima facie elements of his defamation claim.
‘‘It is well established that this court may rely on
any grounds supported by the record in affirming the
judgment of a trial court.’’ State v. Burney, 288 Conn.
548, 560, 954 A.2d 793 (2008). In this appeal, the plaintiff
does not claim that the court improperly determined
that he failed to establish a prima facie defamation
claim. ‘‘An unmentioned claim is, by definition, inade-
quately briefed, and one that is generally . . . consid-
ered abandoned.’’ (Internal quotation marks omitted.)
State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007).
An appellant’s failure to raise all possible grounds for
reversal operates as waiver. See Harris v. Bradley
Memorial Hospital & Health Center, Inc., 306 Conn.
304, 325 n.10, 50 A.3d 841, (2012), cert. denied,
U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013).
Accordingly, because the plaintiff waived the ground
upon which the court based its decision, we decline to
review this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The university filed a motion to dismiss the claims against it, which the
court, A. Robinson, J., granted on July 31, 2008, on the ground of sovereign
immunity. The university, therefore, is not a party to this appeal. In this
opinion, we refer to the individual defendants collectively as the defendants,
and individually by name where appropriate.
2
This deposition was conducted in connection with the plaintiff’s similar
claims against the university brought in the United States District Court for
the District of Connecticut subsequent to the commencement of this state
court action. The federal claims set forth within that action were resolved
by summary judgment in favor of the university, and the remaining state
claims were ultimately dismissed for lack of subject matter jurisdiction on
the ground of the doctrine of sovereign immunity. See Nodoushani v. South-
ern Connecticut State University, United States District Court, Docket No.
3:08CV00561 (AWT) (D. Conn. September 29, 2011), aff’d in part, vacated
in part, 507 Fed. Appx. 79 (2d Cir. 2013).
3
Although the substantive analysis of the plaintiff’s § 1983 and common-
law claims of false arrest and malicious prosecution is virtually identical
under § 1983 and the common law, in order to establish a § 1983 claim, the
plaintiff bears the additional burden of demonstrating both a constitutional
or statutory violation, and that the alleged misconduct was carried out
‘‘under color of state law.’’ See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct.
2250, 101 L. Ed. 2d 40 (1988). With respect to the latter requirement, the
trial court ruled that the plaintiff failed to demonstrate the existence of a
genuine issue of material fact as to whether the defendants were acting under
color of state law. In this appeal, the plaintiff claims that this determination of
the trial court was improper. We need not reach this claim, however, in
light of our conclusion, as set forth in part I of this opinion, namely, that
the plaintiff failed to establish a genuine issue of material fact as to the
prima facie elements of his false arrest and malicious prosecution claims.
4
Notably, the plaintiff does not contend that the defendants physically
restrained him.
5
We further note that, in this appeal, the plaintiff additionally claims that
the trial court failed to analyze his federal false arrest claim under the
standard set forth in Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978). The plaintiff relies upon Golino v. New Haven,
950 F.2d 864 (1991), cert. denied, 505 U.S. 1221, 112 S. Ct. 3032, 120 L. Ed.
2d 902 (1992), and Ham v. Greene, 248 Conn. 508, 729 A.2d 740, cert. denied,
528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999), for the proposition
that the court was required to conduct an inquiry into whether the affidavit
supporting the arrest warrant, when viewed in the absence of material
misstatements or omissions, was supported by probable cause sufficient to
support the issuance of the arrest warrant. In light of our determination
that the trial court properly granted the defendants’ motion for summary
judgment on the plaintiff’s federal false arrest claim, as discussed in part I
of this opinion, we decline to review his Franks claim. See Russell v. Russell,
91 Conn. App. 619, 636–37, 882 A.2d 98 (unnecessary for appellate court to
review all claims brought on appeal where one claim is dispositive), cert.
denied, 276 Conn. 924, 925, 888 A.2d 92 (2005).
6
‘‘A defamatory statement is defined as a communication that tends to
harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him
. . . . To establish a prima facie case of defamation, the plaintiff must
demonstrate that: (1) the defendant published a defamatory statement; (2)
the defamatory statement identified the plaintiff to a third person; (3) the
defamatory statement was published to a third person; and (4) the plaintiff’s
reputation suffered injury as a result of the statement.’’ (Citation omitted;
internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267
Conn. 210, 217, 837 A.2d 759 (2004). ‘‘For a claim of defamation to be
actionable, the statement must be false and truth is an affirmative defense.’’
Rafalko v. University of New Haven, 129 Conn. App. 44, 53, 19 A.3d 215
(2011).
7
‘‘A [governmental] defendant will be entitled to qualified immunity if
either (1) his actions did not violate clearly established law or (2) it was
objectively reasonable for him to believe that his actions did not violate
clearly established law.’’ (Internal quotation marks omitted.) Fleming v.
Bridgeport, 284 Conn. 502, 519, 935 A.2d 126 (2007).