Summary
In Whitnum v. Town of Darien, 2015 WL 4880058 *3-4 (Conn.Super. 2015) (Arnold, J.), Judge Arnold applied the plain language of the statute which grants rights to the patient only in concluding a non-patient, like Partch, had no rights under the statute.
Summary of this case from Partch v. Wilton Meadows Health Care Center Corp.Opinion
FBTCV145030228S
12-04-2015
Lisa Lee Whitnum v. Town of Darien, Darien Police Department
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE APPLICATION FOR IMMEDIATE INJUNCTIVE RELIEF
Richard E. Arnold, J.
The plaintiff has filed an application for immediate injunctive relief dated March 23, 2015, seeking a temporary injunction enjoining the defendant, Darien Police Department from " unlawfully" arresting the plaintiff for trespassing on the grounds of Atria, an assisted living facility located in Darien, Connecticut. The plaintiff claims that due to the unlawful behavior of the police, she has been denied all personal contact with her former husband since May 25, 2012. A summary of the factual background surrounding this ongoing dispute has been discussed in the court's memorandum of decision on a motion to dismiss previously filed by the defendants. See. Whitnum v. Darien, Superior Court, judicial district of Fairfield at Bridgeport, FBT CV14 5030228S (Jul. 8, 2015, Arnold, J.)
The marriage of the parties has since been dissolved.
In the present matter before the court, the plaintiff continues her complaints and allegations that in the past, members of defendant Darien Police Department have unlawfully arrested her for trespassing at the Atria facility in April 2013, when she requested to visit her husband. The plaintiff claims that her husband at that time was never asked if he would like a visit from his wife. The plaintiff claims that she was unlawfully arrested as only Mr. Baker, her husband at the time, who was a renter with " exclusive possession" had the right to press criminal trespassing charges. The plaintiff further alleges that as recently as November 10, 2014, she was informed by a representative of the Darien Police Department that if she stepped foot on the Atria assisted living facility property, she would be arrested. The plaintiff claims she has been denied the ability to enter onto the Atria property and to ask Atria employees at the front desk of the facility if Mr. Baker would like a visit from her.
The plaintiff specifically requests that the court enjoin the defendant police department from:
1. Denying her the ability to walk up to the front door of Atria and have " them" call Mr. Baker, and if he [Baker] wishes to see his ex-wife, the defendant be ordered not to interfere in any way; 2. Order that the defendant police department be precluded from arresting the plaintiff for trespassing per any orders of Atria representatives or Baker's children; 3. Order the defendant to " stand by Baker's wishes" to see whomever he wants and not the wishes of the Atria staff or Baker's adult children. 4. Order the Darien Police Department to investigate " the fraudulent conveyance." 5. Order the Darien Police Department to immediately provide the plaintiff with her full police report.
The defendants Town of Darien and the Darien Police Department, in objecting to the plaintiff's request for injunctive relief, have filed their objection and their legal memorandum of law. In support of their objection the defendants have submitted a copy of a letter dated January 6, 2015 from Mr. Baker to Atria, allegedly expressing his wishes not to have any contact with the plaintiff, and addressing all inquiries to his son and daughter. The defendants have also submitted a sworn affidavit from Mr. Baker, dated April 9, 2015, which states he does not wish to see or speak to the plaintiff. Further, he requests that she not be allowed into the Atria facility to see him. They have also submitted excerpts of a deposition of Mr. Baker, dated March 31, 2014, wherein Baker in response to a question from the plaintiff, testified that the plaintiff was " badgering" him.
A hearing on the application was for injunctive relief was held on September 24, 2015. The plaintiff-applicant presented no witnesses. The oral argument of the parties was heard by the court. The plaintiff requested that the court decide the matter " on the papers" and the defendants were in agreement. At that time, the plaintiff has submitted five exhibits, which the court ruled could be entered as full exhibits and would be reviewed as part of the papers submitted by the parties.
The standard for granting a temporary injunction is well settled. " In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law." Moore v. Ganim, 233 Conn. 557, 569 n.25, 660 A.2d 742 (1995). A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm without an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tips in its favor. Waterbury Teachers Ass'n v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). " The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation." Karls v. Alexandra Realty Corp., 179 Conn. 390, 401, 426 A.2d 784 (1980). Moreover, " [t]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 98, 10 A.3d 498 (2010).
" A prohibitory injunction is an order of the court restraining a party from the commission of an act. A mandatory injunction, on the other hand, is a court order commanding a party to perform an act." Tomasso Bros, Inc v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994). " Though Connecticut's appellate courts have not had occasion to articulate the standard for granting a temporary mandatory injunction, the federal Court of Appeals for the Second Circuit has ruled that a party who seeks a mandatory injunction must show that he or she 'clearly' is entitled to relief or that 'extreme or very serious damage' will result from denial of the injunction." Kent Literary Club of Wesleyan University at Middletown v. Wesleyan University, Superior Court, judicial district of Middlesex at Middletown. MMX-CV-15-6013185-S (Jun. 2, 2015, Domnarski, J.) (citing, Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir. 1997); Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
The plaintiff recites that the defendant police department has played an active role in preventing her from having contact with Baker, her former husband. She claims they are acting on Atria's request that she stay off of their property, and that Atria is acting per the instructions of Baker's son. The plaintiff claims that the son along with the cooperation of two superior court judges succeeded in " railroading" Baker and the plaintiff into a dissolution of marriage without any private conversations between Baker and the plaintiff for a period of fourteen months prior to the dissolution of marriage. The plaintiff alleges that the defendant police department " unlawfully" aided an employee of Atria and Baker's son in their goal of keeping the plaintiff from Baker, with the ultimate goal of " breaking up the marriage, " between the plaintiff and Baker.
The dissolution of marriage is currently on appeal at the Connecticut Appellate Court.
The plaintiff has not made the necessary showings to entitle her to injunctive relief. Regarding her request that she be allowed to walk up to the front door of Atria and have them call Baker and not to interfere if Baker wishes to see the plaintiff, the court is aware that Baker, under oath, has made it clear that he does not wish to have any contact with the plaintiff. Additionally, Atria is not a party to the proceedings, and, therefore the court cannot issue injunctive orders against Atria.
The request for injunctive relief precluding the police department from arresting the plaintiff for entering into or onto the Atria property also lacks evidence of imminent, substantial or irreparable injury to the plaintiff. Plaintiff can avoid any such arrest by refraining from entering into or onto Atria property. Any such argument that an arrest is unlawful can be addressed in the criminal court by challenging the lawfulness of any such arrest. Any intrusion by this court into a criminal case regarding the discretionary functions of the police department in their initial determination of probable cause to make an arrest is improper." Regarding the defendant's request that she be given a copy of the police department's arrest report, the court is aware that a criminal case defendant is entitled to copies of law enforcement reports, affidavits and statements pursuant to Practice Book § 40-13A, upon her written request. Any such request should be made within the context of any pending cases involving the criminal prosecution of the plaintiff-applicant. The rights of discovery in a pending criminal matter are set forth in Chapter 40 of the Practice Book. The claim for immediate injunctive relief is denied.
While this application for injunctive relief does not pose or address a question of governmental immunity, " [t]he Superior Court has consistently held that acts or omissions of police officers in the exercise of their duties are discretionary in nature . . . The Superior Court has also determined that [t]he investigation of crimes and the decisions to make arrests for them is clearly a discretionary . . . function.' (Citations omitted; internal quotation marks omitted.) Skrobacz v. Sweeney, 49 Conn.Supp. 15, 32, 858 A.2d 899 (2003); see Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179-80, 544 A.2d 1185.
§ 40-13A. Law Enforcement Reports, Affidavits and Statements
Upon written request by a defendant and without requiring any order of the judicial authority, the prosecuting authority shall, no later than forty-five days from receiving the request, provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were prepared concerning the offense charged, subject to the provisions of Sections 40-10 and 40-40 et seq.