07-5516-cv
Richards v. Gasparino


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

R ULINGS BY SUM M ARY ORD ER D O NO T HAVE PRECEDENTIAL EFFECT . C ITATIO N TO A SU M M ARY O RD ER FILED ON O R AFTER
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VERN ED BY F ED ERAL R ULE O F A PPELLATE P RO CED U RE 32.1 AND THIS COU RT ’S
L O CAL R U LE 32.1.1. W HEN CITING A SU M M AR Y O RD ER IN A D OCU M ENT FILED W ITH THIS COU RT , A PARTY M U ST CITE
EITHER TH E F ED ERAL A PPEN D IX O R AN ELECTRO N IC D ATABASE ( W ITH TH E N O TATIO N “ SU M M ARY O RD ER ”). A PARTY
CITIN G A SU M M ARY O RD ER M U ST SERVE A CO PY O F IT ON AN Y PARTY N O T REPRESENTED B Y CO U N SEL .



        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day of
April, two thousand ten.

PRESENT:
                        PETER W. HALL,
                        GERARD E. LYNCH,
                             Circuit Judges,
                        TIMOTHY C. STANCEU,*
                             Judge.

_______________________________________________

Sandra Richards,

                                      Plaintiff-Appellant,
                        v.                                                           No. 07-5516-cv

Richard Gasparino, Adela Quito

                        Defendants-Appellees.
______________________________________________

For Appellant:                                                    SANDRA D. RICHARDS, pro se,
                                                                  Norwalk, CT.

For Appellees:                                                    H. JEFFREY BECK, Stratford, CT.




          *
        Timothy C. Stanceu, of the United States Court of International Trade, sitting by
designation.
                                                      JAMES V. MINOR, City of Stamford Law
                                                      Department, Stamford, CT.

       Appeal from a judgment of the United States District Court for the District of

Connecticut (Eginton, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Sandra D. Richards appeals pro se from a judgment of the United

States District Court for the District of Connecticut (Eginton, J.) dated November 7, 2007,

granting summary judgment to the Defendants-Appellees and dismissing Richards’s complaint.

We assume the parties’ familiarity with the underlying facts and procedural history of the case.

       We review orders granting summary judgment de novo and determine whether the district

court properly concluded there was no genuine issue as to any material fact and the moving party

was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196,

202-03 (2d Cir. 1995).

       Plaintiff-Appellant Richards brought a claim under 42 U.S.C. § 1983 arguing that

Defendant-Appellee Gasparino is liable for false arrest, which the district court dismissed on the

ground of qualified immunity. Richards also brought a claim under state law arguing that

Defendant-Appellee Quito is liable for malicious prosecution, which the district court dismissed

as a matter of law.

       1.      Qualified Immunity

       “[P]ublic officials are entitled to qualified immunity if (1) their conduct does not violate

clearly established constitutional rights, or (2) it was objectively reasonable for them to believe



                                                  2
their acts did not violate those rights.” Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996). “In the

context of a qualified immunity defense to an allegation of false arrest, the defending officer need

only show ‘arguable’ probable cause.” Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir.

2002). “An officer has probable cause to arrest when in possession of facts sufficient to warrant

a prudent person to believe that the suspect had committed or was committing an offense.”

Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997). A district court should

look to the “totality of the circumstances” in determining whether probable cause existed at the

time of arrest. Caldarola, 298 F.3d at 162.

       Here, Gasparino’s knowledge of Richards’s past behavior, based on a prior December

2003 arrest, along with his observations at Richards’s apartment on the date of the January 2004

arrest, provided sufficient information to lead Gasparino reasonably to believe that Richards had

arguably committed the crime of risk of injury to a minor. Accordingly, the district court

correctly determined that Gasparino was entitled to qualified immunity and granted him

summary judgment.

       2.      Malicious Prosecution

       Under Connecticut law, in order to establish the tort of malicious prosecution, a plaintiff

must prove, inter alia, that “the defendant initiated or procured the institution of criminal

proceedings against the plaintiff.” Karwowski v. Fardy, 984 A.2d 776, 781-82 (Conn. 2009)

(internal quotation marks omitted). “A private person can be said to have initiated a criminal

proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought

pressure of any kind to bear upon the public officer’s decision to commence the prosecution.”

McHale v. W.B.S. Corp., 446 A.2d 815, 817 (Conn. 1982). However, where a person “has


                                                  3
undertaken no more than to provide potentially incriminating information to a public officer[,]

. . . made a full and truthful disclosure[,] and has left the decision to prosecute entirely in the

hands of the public officer, he cannot be held liable for malicious prosecution.” Id.

          Here, the undisputed facts clearly establish that Quito did no more than provide

Gasparino with information that one of her tenants had reported the “strong odor of gas” in the

building where Richards’s apartment was located. Gasparino’s decision to arrest Richards was

based on his independent investigation of the circumstances surrounding the gas leak. Because

those facts preclude a claim of malicious prosecution, summary judgment in favor of Quito was

proper.

          We have considered all of Richards’s arguments and find them to be without merit. For

the reasons stated above, the judgment of the district court is AFFIRMED.



                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




                                                   4
