Opinion
CV156029309S
01-29-2018
Harold SETZER v. Frederick SPAGNOLO
UNPUBLISHED OPINION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. 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 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. 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. 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. The plaintiff invokes this Garrity violation pursuant to General Statutes § 7-294d(c)(2)(I), 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 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.
The plaintiff’s name was erroneously reflected on the summons as " David Setzer," and the defendant’s name on the summons and complaint was misspelled as " Stagnola." The former was corrected by way of motion and the latter by request to revise. See Motion for Order # 103.00, and Request to Revise # 113. Accordingly, the parties are referred to by their appropriate names in the case caption and in the body of this decision.
42 U.S.C. 1983 provides in relevant part: " Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."
Additionally, the court notes that the plaintiff also named Michael Gugliotti on the summons, but, per the Marshal’s Return, at the direction of counsel he was never served. The court, Shapiro, J., denied a motion to cite him into this action on that basis and the plaintiff commenced a separate action against him, which was later consolidated with this one. See Setzer v. Gugliotti, Superior Court, judicial district of Waterbury, Docket No. CV-16-6031130-S.
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (statements obtained by threat of removal from office may not be used in subsequent criminal proceeding).
General Statutes § 7-294d(c)(2)(1) provides various bases on which a police officer’s certification may be revoked. The basis of the plaintiff’s reliance upon this provision is unclear. However, see part 11 B of this memorandum of decision.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
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. 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.
General Statutes § 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
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 question by [a motion to strike] instead of by answer." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993), quoting, Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956). The second exception " exists ... when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right- it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 344-45 n.12. The defendant premises its contention that the motion to strike is appropriate to address the applicability of the statute of limitations on this first exception.
The Forbes opinion is instructive as to the first exception: " Counts five through eleven of the plaintiffs’ complaint stated all dates on which the alleged negligent acts occurred. The trial court held that because all the dates were pleaded, all facts necessary to determine if the cause of action was barred by the statute of limitations were also pleaded. Therefore, the trial court held, pursuant to Vilcinskas v. Sears, Roebuck & Co., supra, [144 Conn. 171-72], that this was an instance in which the statute of limitations defense could be raised by a motion to strike. " The trial court misconstrued our Supreme Court’s holding in Vilcinskas. In that case, the parties agreed that all facts necessary to the determination of whether the statute of limitations defense applied were set forth in the complaint. Therefore, there was no need to wait for an answer to determine if the statute of limitations defense could be avoided if the answer could provide no new information. Here, however, there is no such agreement. The complaint did not state facts that the plaintiffs believed would toll the statute of limitations on their claims. The plaintiffs contend, as they have throughout these proceedings, that additional facts are necessary to prove that the claim is not time barred. The plaintiffs should be given the opportunity affirmatively to plead fraudulent concealment in avoidance of the statute of limitations defense pursuant to General Statutes § 52-595." (Emphasis added; footnotes omitted.) Forbes v. Ballaro, supra, 31 Conn.App. 240-41. Indeed, a plaintiff is " not required to plead facts in anticipation of the defense of the statute of limitations." Id., 241 n.9. Furthermore, " [f]acts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment, whereas they cannot be considered in a motion to strike." Girard v. Weiss, supra, 43 Conn.App. 416.
Judges of the superior court in applying these principles have generally held that, under the reasoning of Forbes, " [a] plaintiff merely contending that additional facts are needed can form the basis of an improper use of the motion to strike." Cornelius v. Arnold, Superior Court, Judicial district of New Britain, Docket No. CV-13-5015763-S (April 1, 2014, Tanzer, J.). Accordingly, " [i]n the absence of an agreement that every relevant fact is before the court, a motion to strike is a procedurally inadequate mechanism to assert the statute of limitations. Rather, a motion for summary judgment, filed at the appropriate time, is preferable." Horner v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-CV-17-6034898-S (October 25, 2017, Lager, J.) . See also Gianetti v. Maida, Superior Court, judicial district of New Haven, Docket No. CV-14-6051513-S (December 5, 2016, Fischer, J.) (" [T]he plaintiff has not agreed that the complaint sets forth all the facts necessary to determine whether the actions are time barred ... Therefore, the first exception allowing for the statute of limitations to be raised in a motion to strike has not been met); Mussington v. State, Superior Court, judicial district of New Haven, Docket No. CV-14-5034858-S (June 29, 2015, Nazzaro, J.) (motion to strike § 1983 action denied because " [w]hen the parties do not specifically agree to the date from which the statute of limitations runs, the exception allowing a statute of limitations ground in support of a motion to strike does not apply" ).
Furthermore, in many cases, courts have declined to apply this exception when the plaintiffs, either in their pleadings or at argument, raised anticipatory responses to the statute of limitations. See Doe v. Rackliffe, Superior Court, judicial district of New Britain, Docket No. CV-14-5016102-S (February 19, 2015, Young, J.) (plaintiff’s argument that different statute of limitations should apply and disagreements with defendant’s argument that all necessary facts have been pleaded to determine issue of equitable tolling was sufficient to deny motion to strike); Grimes v. Darien, Superior Court, judicial district of Stamford-Norwalk Docket No. CV-12-6013917-S (January 17, 2013, Karazin, J.T.R.). (motion to strike denied where " the [p]laintiffs expressly pleaded equitable tolling" ); Mohan v. Weston, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-5013550-S (July 20, 2011, Jennings, J.T.R.) (motion to strike denied where " the plaintiff filed a memorandum in opposition to the motion to strike urging the court to equitably toll the statute of limitations in his favor" ).
In the present case, the plaintiff has not expressly agreed that the complaint sets forth all the facts necessary to determine whether the causes of action alleged therein are time barred. Absent such an agreement the court cannot properly rule on the motion to strike. See Gianetti v. Maida, supra, Superior Court, Docket No. CV-13-5015763-S; Mussington v. State, supra, Superior Court, Docket No. CV-14-5034858-S. Furthermore, the defendant’s invocation of various equitable doctrines, regardless of their ultimate applicability, render this issue unripe to be finally decided at this juncture. See, e.g., Doe v. Rackcliffe, supra, Docket No. CV14-5016102-S; Grimes v. Darien, supra, Superior Court, Docket No. CV12-6013917-S. Accordingly, a motion to strike is not the proper mechanism to decide whether the statute of limitations is a bar to this action.
Nevertheless, the defendant argued in his moving papers, as well as at short calendar, that the parties could be said to " agree" on the dates at issue, because he does not dispute the dates in the plaintiff’s amended complaint. The " agreement" that this exception requires, however, is not to be presumed. The parties must actually agree that all relevant information to decide the applicability of the statute of limitations is contained in the complaint. See Forbes v. Ballaro, supra, 31 Conn.App. 240-41. Such is not the case here.
Furthermore, the defendant contended at short calendar that, because a previous motion to strike was filed and voluntarily responded to by the present amended complaint without the motion to strike ever having been heard, the plaintiff has had an opportunity to allege facts which would make it clear that the issue of the statute of limitations could not properly be decided in the present context. This argument is unpersuasive. The previous motion to strike attacked the plaintiff’s purported failure to state a cognizable claim, and was not directed at the statute of limitations issue now asserted. See Docket # 116.00. Facts in avoidance of the statute of limitations are more appropriately decided by a motion for summary judgment. See Girard v. Weiss, supra, 43 Conn.App. 516. Accordingly, the exception allowing the statute of limitations to be raised in a motion to strike has not been met, and the motion to strike is denied as to count one.
B
LEGAL INSUFFICIENCY
The defendant next argues that the plaintiff’s allegations regarding his claimed Garrity rights violations rooted in § 7-294d, as well as the additional allegations of count two, fail to state claims upon which relief can be granted. These claims are addressed in turn.
The defendant argues that § 7-294d does not itself provide for a private cause of action even if its violation does trigger Garrity rights. As such, while the allegations regarding the conduct may be pertinent, the allegations that the conduct violated § 7-294d may be impertinent.
It is well settled that " a motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations. The proper vehicle would be a request to revise." (Internal quotation marks omitted.) Doe No. 2 v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-12-5036425-S (July 8, 2013, Dubay, J.) (56 Conn.L.Rptr. 460, 463); see Regal Steel, Inc. v. Farmington Ready Mix, Inc., 36 Conn.Supp. 137, 139-40, 414 A.2d 816 (1980). " A request to revise pursuant to Practice Book § 10-35 may be used to try to separate claims to obtain a more complete or particular statement of allegations, or to delete impertinent allegations in order to properly challenge the legal sufficiency of the adverse party’s claims by motion to strike." C. Davis, " Roadmap to Connecticut Procedure," 83 Conn. B.J. 271, 280 (2009). Thus, " a request to revise [properly seeks] a ‘more complete or particular statement of the allegation’ ..." (Citation omitted.) Morrissey-Manter v. Saint Frances Hospital & Medical Center, 166 Conn.App. 510, 532 n.7, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016).
In the present case, the defendant does not contend that Garrity rights are nonactionable, rather he challenges the propriety of the plaintiff’s reliance on § 7-294d to support such a claim. Such an argument is more properly resolved by way of a request to revise. See Doe No. 2 v. Norwich Roman Catholic Diocesan Corp., supra, Superior Court, Docket No. X07-CV-12-5036425-S (although defendant’s argument that mandated reporting statutes did not create legally enforceable duty " may [have] be[en] substantively correct" proper vehicle for challenging its applicability was not motion to strike but rather by request to revise). The plaintiff’s amended complaint alleges violations of his Garrity rights pursuant to not only § 7-294d but also under the fourth, fifth, and fourteenth amendments to the United States Constitution. The defendant does not dispute the propriety of a Garrity cause of action under those constitutional provisions. Accordingly, the plaintiff’s possibly mistaken reliance on § 7-294d would have better been addressed by a request to revise.
The defendant next argues that the " additional paragraphs" of the second count of the plaintiff’s amended complaint fail to state a cause of action. Specifically, in his motion to strike, the defendant notes that the plaintiff’s claim " appears to be that a plea agreement into which he entered was violated." Similarly, this argument is better addressed by way of request to revise. The defendant’s challenges to the second count are grounded in uncertainty as to the claim alleged against him, which is an unsuitable basis for a motion to strike. " [T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint ... If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff’s revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites." (Citation omitted; footnote omitted.) Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988). Accordingly, the motion to strike is denied as to count two.
The claims in counts one and two do not appear to present clearly distinct causes of action and are perhaps better pleaded as a single count. This issue, however, is similarly better resolved by way of a request to revise.
Here, the defendant has not filed a request to revise, but instead has brought a motion to strike. " Practice Book [§ ]10-6 prescribes the following order of pleadings: the plaintiff’s complaint, the defendant’s motion to dismiss the complaint, the defendant’s request to revise the complaint, the defendant’s motion to strike the complaint, the defendant’s answer including any special defenses to the complaint, the plaintiff’s request to revise the defendant’s answer, the plaintiff’s motion to strike the defendant’s answer, the plaintiff’s reply to any special defenses." Adler v. Rosenthal, 163 Conn.App. 663, 683 n.12, 134 A.3d 717 (2016). Consequently, the defendant has waived the right to file a request to revise.
The court notes that a request to revise was previously filed in this matter, Docket No. # 113, but it primarily pertained to matters not presently at issue, e.g., spelling corrections of names, references to other parties, etc.
The court may, however, use its discretion to undo that waiver. Practice Book § 10-7 provides: " In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by [Practice Book § 10-6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." (Emphasis added.) " [T]he court has discretion to allow the filing of pleadings out o order. [The rules of the practice book] [support] this view by allowing for the liberal interpretation of the rules where strict adherence to them will work surprise or injustice because the very design of the rules is to facilitate business and advance justice." (Internal quotation marks omitted.) Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134, 1135 (1989). See also Fleming v. Simonds, Superior Court, judicial district of Windham at Putnam, Docket No. CV16-5006566-S (December 13, 2016, Calmar, J.) (allowing request to revise after denying motion to strike).
Accordingly, as the claims in this section are more appropriately resolved by a request to revise the court denies the motion to strike, and pursuant to Practice Book § 10-7 authorizes the defendant to file a request to revise to address the concerns which have not been addressed by this motion to strike.
III
CONCLUSION
For the foregoing reasons, the defendant’s motion to strike is denied.