Setzer v. Spagnolo

Harold SETZER v. Frederick SPAGNOLO

No. CV156029309S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

January 29, 2018

UNPUBLISHED OPINION

OPINION

RORABACK, J.

I

BACKGROUND

The plaintiff, Harold Setzer, initiated this action against the defendant, Frederick Spagnolo, by way of service of a summons and complaint on November 9, 2015.^[1] The plaintiff filed his two-count second amended complaint on April 19, 2017, and alleges claims pursuant to, inter alia, 42 U.S.C. § 1983^[2] for violations of his fourth, fifth and fourteenth amendment rights. The gravamen of the claims against this defendant pertain to actions he is alleged to have undertaken while he was the plaintiff’s superior in the Waterbury Police Department. The complaint alleges that the defendant essentially forced the plaintiff to admit to criminal liability in a manner which violated his constitutional rights. The plaintiff alleges the following facts in count one of his amended complaint. The plaintiff is a resident of New Haven and was an acting Lieutenant for the Waterbury Police Department. The defendant was Waterbury’s Deputy Chief of Police. Between April and August of 2009, the plaintiff was investigated by the New Haven Police Department for a variety of weapons and explosives related offenses. At some point during the pendency of this investigation the New Haven Police Department contacted Waterbury’s Chief of Police, Michael Gugliotti, who spoke to the defendant.^[3] The defendant then ordered the plaintiff in for an internal investigation. The plaintiff was required by the defendant to surrender all of his guns and related paperwork into the Waterbury Police Department to aid the New Haven Police Department in their investigation. The plaintiff alleges that during this process he was never provided with Miranda warnings.^[4] The Waterbury Police Department turned the guns and paperwork over to New Haven without a warrant and without plaintiff’s knowledge or consent. The plaintiff alleges that in so doing, the defendant violated the plaintiff’s rights to remain silent to be free from self-incrimination, as well as his Garrity rights.^[5] The plaintiff invokes this Garrity violation pursuant to General Statutes § 7-294d(c)(2)(I),^[6] as well as the fourth, fifth, and fourteenth amendments of the United States constitution. The plaintiff incorporates the allegations of count one and makes the following additional allegations in count two of his amended complaint. On September 29, 2009, the plaintiff was arrested on various weapons-related charges. On May 30, 2012 the plaintiff pleaded guilty under the Alford doctrine^[7] to two Class D felonies, possession of explosives and illegal transfer of a pistol, and was to receive a sentence of five years, execution suspended with three years’ probation. A condition of that plea was that the plaintiff continues to cooperate with law enforcement, and if an arrest occurred regarding an investigation into another matter the plaintiff had knowledge of, he would be allowed to withdraw his felony pleas and plead instead to two misdemeanors. If these conditions were fulfilled and the plaintiff was found guilty of misdemeanors and not felonies, he would have been able to retain his job as a police officer. The plaintiff cooperated from May 30, 2012, until October 26, 2012, the date of his sentencing. Despite his cooperation, an arrest failed to materialize in the matter he was assisting with, and the plaintiff was thus sentenced according to his felony plea. The plaintiff then realized the full measure of his loss upon his sentencing. The plaintiff alleges that the defendant effectively forced the plaintiff to incriminate himself, failed to give him Miranda or Garrity warnings, and made taking the case to trial untenable as all relevant evidence had been ceded to the state due to the defendant’s actions. Consequently, the plaintiff alleges that as a result of the defendant’s conduct described above, the plaintiff’s right to remain silent, right to be free from self-incrimination, and rights under Garrity were violated.

On June 1, 2017, the defendant moved to strike the entirety of the plaintiff’s second amended complaint for the following reasons: that the claims contained therein are time-barred by the statute of limitations, that § 7-294d doesn’t create Garrity rights, and that the additional paragraphs of count two do not appear to state a recognized cause of action against the defendant. The plaintiff filed his memorandum in opposition on June 26, 2017. The defendant filed a reply on July 14, 2017. The matter was heard at short calendar on October 2, 2017.

DISCUSSION

" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Practice Book § 10-39(a) provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint ..."

" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

In his memorandum in support of his motion to strike, the defendant argues that the plaintiff’s entire amended complaint should be stricken on several grounds. First, the defendant asserts that the plaintiff’s complaint should be stricken because all of the defendant’s alleged acts or omissions occurred in 2009, well outside the statute of limitation applicable to § 1983 actions, which he asserts is governed by General Statutes § 52-577.^[8] Second, the defendant argues that the plaintiff has failed to state a claim under General Statutes § 7-294d(c)(2)(I), as that statute creates no private right of action, and, as such, any reference thereto should be stricken. Lastly, the defendant argues that the additional paragraphs of the second count of the plaintiff’s complaint fail to state a claim for which relief may be granted against the defendant. The crux of the second count of the plaintiff’s amended complaint, the defendant asserts, appears to be that a violation of a plea agreement occurred. The defendant argues that these paragraphs should be stricken, however, as the defendant is not alleged to be a party to this agreement, nor is there an allegation of conduct subsequent to 2009 on the part of the defendant that had any bearing on the plaintiff’s guilty plea.

In his memorandum in opposition, the plaintiff argues that the motion to strike should be denied. The plaintiff does not dispute the applicability of § 52-577 to his claims, but argues that a motion to strike is an improper mechanism to assert the applicability of the statute of limitations in this instance. Furthermore, the defendant asserts that the doctrines of equitable estoppel, continuing violation, and equitable tolling could apply to avoid the statute of limitations. In reply, the defendant argues that the motion to strike is the proper mechanism to decide this issue and asserts that the facts in the complaint are undisputed. Furthermore, the defendant asserts that because the plaintiff voluntarily re-pleaded in response to a prior motion to strike which was never heard by the court, any relevant facts that could have been pleaded now have been pleaded. Lastly, the defendant asserts that the equitable doctrines asserted by the plaintiff are inapplicable.

A Statute of Limitations

The court shall first address whether the application of the statute of limitations may properly be decided by motion to strike. " [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12 890 A.2d 1269 (2006). " [T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted." Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert denied, 239 Conn. 946, 686 A.2d 121 (1996). " The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that...