         09-1820-cv
         Session v. Rodriguez, et al.



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23 rd day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                GERARD E. LYNCH,
 9                         Circuit Judge,
10                JANE A. RESTANI, *
11                         Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       GARY SESSION,
15
16                    Plaintiff-Appellant,
17
18                    -v.-                                         09-1820-cv
19
20       EDWIN RODRIGUEZ, STEPHEN COPPOLA, and
21       THE CITY OF NEW HAVEN,
22
23                Defendants-Appellees.
24       - - - - - - - - - - - - - - - - - - - -X
25


                *
               The Honorable Jane A. Restani, Chief Judge of the
         United States Court of International Trade, sitting by
         designation.
 1   APPEARING FOR APPELLANT:   John A. Pinheiro (Donna L.
 2                              Alvarez, on the brief), Milford,
 3                              CT.
 4
 5   APPEARING FOR APPELLEES    Thomas E. Katon, Susman, Duffy &
 6   EDWIN RODRIGUEZ AND        Segaloff, P.C., New Haven, CT.
 7   STEPHEN COPPOLA:
 8
 9   APPEARING FOR APPELLEE     Michael A. Wolak, III, Assistant
10   CITY OF NEW HAVEN:         Corporation Counsel, for the
11                              Office of Corporation Counsel,
12                              New Haven, CT.
13
14
15        Appeal from a judgment of the United States District
16   Court for the District of Connecticut (Thompson, C.J.).
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the judgment of the district court be
20   AFFIRMED in part and VACATED in part.
21
22        Plaintiff-appellant Gary Session appeals from the final
23   judgment and several earlier orders entered in the United
24   States District Court for the District of Connecticut
25   (Thompson, C.J.), ultimately granting judgment in favor of
26   defendants-appellees Edwin Rodriguez and Stephen Coppola
27   formerly of the New Haven Department of Police Services, and
28   the City of New Haven. Session sued these defendants for
29   false arrest, false imprisonment, malicious prosecution, and
30   intentional and negligent infliction of emotional distress,
31   alleging primarily that the police improperly influenced a
32   drug-addicted witness to implicate Session in a murder, that
33   the averment of the witness was used to induce a probable
34   cause finding, that he was jailed for eleven months as a
35   result, and that the charges against him were nolled after
36   the witness recanted. We assume the parties’ familiarity
37   with the underlying facts, the procedural history, and the
38   issues presented for review.
39
40        Session appeals, inter alia, the March 27, 2009 order
41   granting Rodriguez’s motion to dismiss for lack of subject
42   matter jurisdiction pursuant to Federal Rule of Civil
43   Procedure 12(b)(1) (“Rule 12(b)(1)”) and the ensuing March
44   30, 2009 final judgment. “In reviewing a district court’s

                                  2
 1   dismissal of a complaint for lack of subject matter
 2   jurisdiction, we review factual findings for clear error and
 3   legal conclusions de novo.” Morrison v. Nat’l Australia
 4   Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal
 5   quotation marks omitted).
 6
 7        The district court concluded that it lacked subject
 8   matter jurisdiction by reason of the Rooker-Feldman
 9   doctrine. The district court reasoned that, in light of the
10   Connecticut Superior Court’s probable cause determination,
11   Session’s federal suit met Rooker-Feldman’s four
12   requirements. See Exxon Mobil Corp. v. Saudi Basic Indus.
13   Corp., 544 U.S. 280, 284 (2005) (clarifying that the Rooker-
14   Feldman doctrine applies only to “cases brought by state-
15   court losers complaining of injuries caused by state-court
16   judgments rendered before the district court proceedings
17   commenced and inviting district court review and rejection
18   of those judgments”); accord Hoblock v. Albany County Bd. of
19   Elections, 422 F.3d 77, 85 (2d Cir. 2005).
20
21        However, subsequent to the district court’s entry of
22   judgment, this Court made the following clarification:
23
24            The Rooker-Feldman doctrine does not bar a
25            district court from exercising subject-matter
26            jurisdiction over a federal claim where the
27            federal claim complains of injuries caused by an
28            interlocutory state-court order that was
29            effectively reversed by a superseding state-court
30            order, where the federal claim was brought after
31            the state-court proceeding was dismissed, and
32            where any appeal of the interlocutory order would
33            have been moot. In such circumstances, the
34            plaintiff is not a “state-court loser,” and the
35            federal claim does not “invite district court
36            review and rejection” of the interlocutory state-
37            court order.
38
39   Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). The
40   state court probable cause determination was “interlocutory,
41   unappealable, and effectively reversed” in light of the
42   subsequent entry of a nolle prosequi and the later dismissal
43   of all criminal charges against Session. Id. at 103.
44   Moreover, Session did not invite district court review and

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 1   rejection of the state court probable cause determination;
 2   rather, he invited district court scrutiny of the actions
 3   allegedly undertaken by Rodriguez in falsely procuring that
 4   determination. See Morrison v. City of N.Y., 591 F.3d 109,
 5   115 (2d Cir. 2010) (finding “no basis for construing the
 6   complaint as an attack on the Family Court’s order, rather
 7   than an attack on independent discretionary acts and
 8   decisions of the hospital staff that were not compelled by
 9   court order,” and therefore concluding that “the suit was
10   not barred by the Rooker-Feldman doctrine”).
11
12        We therefore vacate the district court’s March 27, 2009
13   order granting Rodriguez’s Rule 12(b)(1) motion and the
14   March 30, 2009 final judgment insofar as it dismissed
15   Session’s false arrest and malicious prosecution claims
16   against Rodriguez under the Rooker-Feldman doctrine, and
17   remand for further proceedings consistent with this order.
18   At the same time, however, we find no merit in Session’s
19   remaining arguments.
20
21        The district court did not abuse its discretion in
22   denying Session’s motion pursuant to Federal Rule of Civil
23   Procedure 56(f) as moot in light of Magistrate Judge
24   Martinez’s October 24, 2006 rulings and the district court’s
25   denial of the defendants’ then-pending motions for summary
26   judgment without prejudice to renewal upon certain specified
27   events.
28
29        Following de novo review, we conclude that the district
30   court properly granted partial summary judgment because (i)
31   Session pleads no cause of action other than false arrest,
32   false imprisonment, malicious prosecution, negligent
33   infliction of emotional distress, and intentional infliction
34   of emotional distress; (ii) Session’s unsupported assertions
35   of emotional distress cannot withstand summary judgment to
36   support his claims of negligent infliction of emotional
37   distress and intentional infliction of emotional distress,
38   see Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.
39   1996) (“[M]ere conclusory allegations, speculation or
40   conjecture will not avail a party resisting summary
41   judgment.”); (iii) there is no genuine issue of material
42   fact indicating a municipal policy or custom--under a theory
43   of widespread practice, failure to train, failure to
44   supervise, or any other theory--that could trigger New

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 1   Haven’s liability under Monell v. Department of Social
 2   Services, 436 U.S. 658 (1978); and (iv) there is no genuine
 3   issue of material fact indicating the involvement of Coppola
 4   in the alleged coercion of Mayra Mercado’s statement or
 5   testimony. Accordingly, the district court properly granted
 6   partial summary judgment, leaving only Session’s false
 7   arrest and malicious prosecution claims against Rodriguez.
 8
 9        In light of this order’s vacatur and remand, we need
10   not reach Session’s motion pursuant to Federal Rule of Civil
11   Procedure 60(b) (“Rule 60(b)”) with respect to Session’s
12   false arrest and malicious prosecution claims against
13   Rodriguez. On remand, Session will be able to use any
14   newly-discovered evidence in opposing Rodriguez’s further
15   motions for summary judgment or at trial. The district
16   court did not abuse its discretion in denying Session’s Rule
17   60(b) motion with respect to Session’s other claims.
18   Session failed to explain (i) how any of the allegedly
19   withheld evidence probably would have altered the outcome of
20   the proceedings in the district court, see United States v.
21   Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001);
22   (ii) how any of the defendants’ conduct precluded him from
23   fully and fairly presenting his case, see State Street Bank
24   & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158,
25   176 (2d Cir. 2004); or (iii) how Session’s prior attorney’s
26   conduct or how Session’s discovery difficulties constitute
27   exceptional circumstances, see Teamsters, 247 F.3d at 391
28   (“A motion for relief from judgment is generally not favored
29   and is properly granted only upon a showing of exceptional
30   circumstances.”).
31
32        We therefore AFFIRM the other orders appealed from and
33   the remainder of the March 30, 2009 final judgment. We
34   VACATE and REMAND for further proceedings consistent with
35   this opinion regarding Session’s false arrest and malicious
36   prosecution claims against Rodriguez.
37
38
39                              FOR THE COURT:
40                              CATHERINE O’HAGAN WOLFE, CLERK
41
42



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