Golino v. City of New Haven

• Decision Date: 18 April 1991
• Docket Number: Civ. No. N-88-2 (JAC).
• Citation: 761 F. Supp. 962
• Court: U.S. District Court — District of Connecticut
• Parties: Anthony GOLINO v. CITY OF NEW HAVEN, William Farrell, Robert Lillis, Anthony DiLullo, Leonard Pastore, Mary Fish-MacDonald, Joyce Carasone Lupone, John and/or Mary Doe One Through John and/or Mary Doe Ten Being Officers, Agents or Employees of the City of New Haven, the State of Connecticut or Those Acting in Concert with Them, Whose Names are Presently Unknown to the Plaintiff.

761 F. Supp. 962

Anthony GOLINO v. CITY OF NEW HAVEN, William Farrell, Robert Lillis, Anthony DiLullo, Leonard Pastore, Mary Fish-MacDonald, Joyce Carasone Lupone, John and/or Mary Doe One Through John and/or Mary Doe Ten Being Officers, Agents or Employees of the City of New Haven, the State of Connecticut or Those Acting in Concert with Them, Whose Names are Presently Unknown to the Plaintiff.

Civ. No. N-88-2 (JAC).

United States District Court, D. Connecticut.

April 18, 1991.

Donn A. Swift, Lynch, Traub, Keefe and Errante, New Haven, Conn., for plaintiff.

William Longa, Shelley Sadin, Zeldes, Needle & Cooper, Bridgeport, Conn., for defendants.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JOSÉ A. CABRANES, District Judge:

Plaintiff Anthony Golino has brought this action under 42 U.S.C. § 1983 ("section 1983"), seeking money damages for alleged violations of his constitutional rights. These claims arise from an eleven-year investigation of the murder of Concetta "Penny" Serra, who was killed in New Haven in 1973. The investigation led eventually to the arrest of plaintiff on July 3, 1984, pursuant to a warrant issued that day on a charge of murder.

On August 28, 1984, Superior Court Judge Frank Kinney found probable cause for the murder charge. The prosecution progressed until May 15, 1987 when, on the eve of trial, the court ordered a blood test which revealed that plaintiff's blood type did not match that of the killer. The charges against plaintiff were dismissed immediately thereafter. The dismissal of these charges, and the circumstances under which they were dismissed, have made the Serra homicide and its investigation the focus of local and national press attention.

Plaintiff alleges numerous violations of his civil rights and makes claims against the following named defendants: The City of New Haven; William Farrell, the Chief of Police of the City of New Haven at all times relevant to plaintiff's claims; Robert Lillis, a sergeant for the New Haven Police Department who supervised the Serra homicide investigation; Leonard Pastore, a detective for the New Haven Police Department who participated in the investigation; Anthony DiLullo, a detective for the New Haven Police Department who participated in the investigation; Mary Fish-MacDonald, an officer of the New Haven Police Department who participated in the investigation; and Joyce Carasone Lupone, the former wife of the plaintiff Anthony Golino, who is alleged to have conspired with the defendants named above. According to the Complaint — and there is apparently no dispute about this — the defendants DiLullo, Pastore and Fish-MacDonald "bore the personal and primary operational responsibility for the investigation." Complaint (filed Jan. 5, 1988), ¶ 13. Plaintiff identifies his four causes of action as (1) conspiracy, (2) arrest with excessive force, (3) malicious prosecution, and (4) supervisory and municipal liability. Default was entered against defendant Lupone on May 23, 1988, and plaintiff's unopposed motion for judgment of default as to defendant Joyce Carasone Lupone (filed June 7, 1988) has not been acted upon, pending consideration of dispositive motions as to the other defendants.

Defendants moved for summary judgment, and the court heard oral argument on the motion on March 14, 1991.

For the reasons stated below, defendants' motion for summary judgment is granted with respect to plaintiff's excessive force and conspiracy claims (against defendants Lillis, DiLullo, Pastore, Fish-MacDonald, and John and/or Mary Doe One through Ten), inasmuch as those claims are time-barred by the applicable statute of limitations. Defendants' motion for summary judgment is also granted with respect to plaintiff's claims of supervisory and municipal liability (against defendants Farrell and City of New Haven), because plaintiff has not produced sufficient evidence to sustain all elements of those claims. However, with respect to plaintiff's claim of malicious prosecution (against defendants Lillis, DiLullo, Pastore, Fish-MacDonald and John and/or Mary Doe One through Ten), defendants' motion for summary judgment is denied because the record as it currently stands contains evidence from which a reasonable jury might infer that plaintiff was maliciously prosecuted. In denying defendants' motion with respect to the claim of malicious prosecution, the court intimates no view on the merits of this single remaining claim. It merely leaves this matter open for trial by jury.

DISCUSSION

A.

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). "The mere existence of some allegedly factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Finally, "`mere conclusory allegations or denials'" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)).

B.

There is no dispute among the parties that the limitations period governing this action is the three-year period allowed under Conn.Gen.Stat. § 52-577. And there is no dispute that plaintiff's claim of malicious prosecution (Count One) is not barred by that limitations period. See Memorandum of Law in Support of Defendants' Motion for Summary Judgment (filed Aug. 10, 1990) ("Defendants' Memorandum") at 32. Defendants argue, however, that plaintiff's excessive force claim (against defendants Lillis, DiLullo, Pastore, Fish-MacDonald, and John and/or Mary Doe One through Ten) (Count One) and his conspiracy claim (against defendants Lillis, DiLullo, Pastore, Fish-MacDonald, Lupone, and John and/or Mary Doe One through Ten) (Count Two) accrued, at the latest, at the time of the July 1984 arrest, more than three years prior to the commencement of this action on January 5, 1988, and that, therefore, those claims are time-barred. I agree.

Federal law, which governs the date of accrual of federal claims such as those asserted here, see Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir.1974), "establishes as the time of accrual that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). And as our Court of Appeals has made clear, even the existence of a conspiracy does not postpone the accrual of causes of action arising out of the conspirators' separate wrongs. "It is the act, not the conspiracy, which is actionable...." Id. at 192.

However, on the ground that "the length of the limitations period, and closely related questions of tolling and application, are to be governed by state law," Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985), plaintiff contends that Singleton is not controlling inasmuch as Singleton, a New York case, did not address the Connecticut "continuing wrong" exception to its statute of limitations. Plaintiff's Memorandum of Law in Opposition to the Defendants' Motion for Summary Judgment (filed Oct. 22, 1990) ("Plaintiff's Response") at 33-34. According to plaintiff, the alleged conspiracy and excessive force about which he complains amounted to a "continuing wrong," and the applicable three-year statute of limitations should therefore have been tolled until the conclusion of the continuing wrong (which plaintiff believes was May 15, 1987, the date when charges in the state criminal case were dismissed).

In support of his argument, plaintiff cites only Mitchell v. City of Hartford, 674 F.Supp. 60, 63 n. 3 (D.Conn.1986), a case in which Judge Blumenfeld discussed the concept of a "continuing wrong" but which provides little, if any, support for plaintiff's conclusion. Judge Blumenfeld held in that case that the plaintiff's section 1983 conspiracy claim did not constitute a "continuing wrong." See id.; cf. Singleton, 632 F.2d at 192-93 (noting that a New York law — substantially similar to the Connecticut law for "continuing wrongs" — that postpones the accrual of certain causes of action did not apply to plaintiff's section 1983 claims). And, as Judge Blumenfeld explained, the "continuing wrong" exceptions "have generally been applied to correct inequitable situations that occur when the plaintiff's cause of action would otherwise be barred before he discovers the injury." Mitchell, 674 F.Supp. at 63 n. 3. Plaintiff in the instant case has not offered the sort of evidence that might suggest that such an "inequitable situation" occurred: There is no evidence that the three-year statute ran before...