11-4173
Martinsky v. City of Bridgeport,

                               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.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 6th day of December, two thousand and twelve.

PRESENT:
     JOHN M. WALKER, JR.,
     DEBRA ANN LIVINGSTON,
     CHRISTOPHER F. DRONEY

                        Circuit Judges.
______________________________________________

WILLIAM C. MARTINSKY,
                                   Plaintiff-Appellant,

                 -v.-                                                   No. 11-4173-cv

CITY OF BRIDGEPORT, CHARLES PARIS, FRANK SANTORA,
JAMES VIADERO, AND JAMES HONIS,
                         Defendants-Appellees.
_______________________________________________

                                          KATHRYN EMMETT (Christine Caulfield, on the brief),
                                          Emmett & Glander, Stamford, Connecticut, for Plaintiff-
                                          Appellant.

                                          ARTHUR C. LASKE III (Betsy A. Edwards, on the brief),
                                          Office of the City Attorney, Bridgeport, Connecticut, for
                                          Defendants-Appellees City of Bridgeport, Frank Santora,
                                          James Viadero, and James Honis.

                                          John P. Bohannon, Jr., Fairfield, Connecticut, for Defendant-
                                          Appellee Charles Paris.

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       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

that the judgment of the District Court entered September 7, 2011 is AFFIRMED.

       Plaintiff-Appellant William C. Martinsky (“Martinsky”) appeals from a decision and order

of the United States District Court for the District of Connecticut granting Defendants-Appellees’

motion for summary judgment on all claims. On appeal, Martinsky argues that triable issues of fact

exist with respect to both his false arrest claims arising under Connecticut common law and 42

U.S.C. § 1983 and his disability discrimination claims arising under the American with Disabilities

Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Connecticut Fair Employment Practices Act

(“CFEPA”), CONN. GEN. STAT. § 46a-51 et seq.. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal, which we reference

only as necessary to explain our decision to affirm.

       We review a district court’s grant of summary judgment de novo, “drawing all factual

inferences in favor of the non-moving party.” Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011).

“Summary judgment is appropriate only if the moving party shows that there are no genuine issues

of material fact and that the moving party is entitled to judgment as a matter of law.” Miller v.

Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). A defendant is entitled to summary

judgment where “the plaintiff has failed to come forth with evidence sufficient to permit a

reasonable juror to return a verdict in his or her favor on” an essential element of a claim on which

the plaintiff bears the burden of proof. In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d

Cir. 2010) (internal citation and quotation marks omitted).

                                             *   *     *

1. False Arrest Claims

       Martinsky alleges that Defendants-Appellees Charles Paris (“Paris”), Frank Santora

(“Santora”), James Viadero (“Viadero”), and James Honis (“Honis”) subjected him to a false arrest,

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violating his Fourth Amendment rights, when they arrested him for moving items from a basement

storage area into a separate locked area of the basement underneath the Savoy Bar and Grill

Restaurant (“the Savoy”), a restaurant he previously owned with Paris. The District Court assumed

arguendo that Martinsky was arrested and seized within the meaning of the Fourth Amendment.

It then held that the Defendants-Appellees were entitled to summary judgment because, at the time,

probable cause existed for them to believe Martinsky had committed larceny. See Russo v. City of

Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007) (noting probable cause is a complete defense to an

action for false arrest). Martinsky argues on appeal that the District Court erred principally by

ignoring disputes over material facts and by drawing inferences in the Defendants-Appellees’ favor.

We disagree. Assuming arguendo that the alleged detention prior to the issuance of the summons

constituted an arrest, Martinsky’s appeal fails.

       a. Santora, Viadero, and Honis

       We agree with the District Court that, viewing the facts in the light most favorable to

Martinsky and drawing all inferences in his favor, no genuine dispute exists as to whether Santora,

Viadero, and Honis had probable cause. The parties do not dispute that Martinsky, while on duty

and in uniform, sought entry into the Savoy when its owners were not present and without seeking

their permission. He then took items out of the Savoy’s storage space, transferred them to a separate

locked area to which the Savoy’s owners did not have access, and then covered the items, thus

concealing them. The officers confirmed this sequence of events at the scene. They examined the

basement, talked to Martinsky, and interviewed Mike Falcigno, the employee of a nearby business,

who gave Martinsky access to the basement. Falcigno confirmed the sequence of events. Based on

these facts, the officers were reasonably suspicious that Martinsky intended to wrongfully obtain

another’s property. See CONN. GEN. STAT. § 53a-119.




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       Santora, Viadero, and Harris were also entitled to rely on the statements of Paris, interviewed

at the scene. Paris claimed the Savoy owned the items and denied that Martinsky had permission to

access the basement. Officers may generally rely on information received from putative victims to

establish probable cause. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“[I]t is

well-established that a law enforcement official has probable cause to arrest if he received his

information from some person, normally the putative victim or eyewitness, unless the circumstances

raise doubt as to the person’s veracity.” (internal quotation marks and citations omitted)). Nor did

Martinsky’s protestations that he owned the items, given the surrounding circumstances, preclude

the officers from relying on Paris’s statements to the contrary.

       Despite the evidence supporting the officers’ determination of probable cause, Martinsky

argues that the Defendants-Appellees lacked probable cause because their investigation failed to

exhaust all possible alternatives. He contends that the officers gave insufficient weight to his

ownership claims and that they should have verified ownership against an inventory list from the

sale of his interest in the Savoy before arresting him. However, police officers are not required

conclusively to eliminate all alternative explanations offered by a suspect where the evidence

reasonably indicates that the suspect may have committed a crime. See, e.g., Krause v. Bennett, 887

F.2d 362, 371-72 (2d Cir. 1989) (holding that officer had probable cause to arrest suspect for

possession of stolen property even though suspect had given officer contact number of person who

might have exonerated suspect). Because the totality of the circumstances was sufficient to allow

a reasonable police officer to conclude that Martinsky had committed larceny, it is “‘of no

consequence that a more thorough or more probing investigation might have cast doubt upon’ the

situation.” Id. (quoting United States v. Manley, 632 F.2d 978, 984 (2d Cir. 1980)).

       b. Paris

       Martinsky next argues that, even if the other officers had probable cause to arrest Martinsky,

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a reasonable jury could find that Defendant-Appellee Paris lacked probable cause because he knew

that some of the items removed by Martinsky, specifically two circus posters, did not belong to the

Savoy. However, to prevail on his false arrest claim against Paris, Martinsky must show specifically

that Paris unlawfully restrained his physical liberty. See Green v. Donroe, 440 A.2d 973, 974 (Conn.

1982) (“[F]alse[] arrest is the unlawful restraint by one person of the physical liberty of another.”);

see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“It is well settled in this Circuit that

personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an

award of damages under § 1983.” (internal quotation marks omitted)). Here, the record is clear that

Paris never directly detained Martinsky and lacked the authority to steer the investigation to such

an end. Cf. Provost v. City of Newburgh, 262 F.3d 146, 154-55 (2d Cir. 2001) (noting § 1983

liability requires intentional participation in the unconstitutional conduct and may include “ordering

or helping others to do the unlawful acts, rather than doing them him-or herself”). Though Paris

stated that he reported the incident pursuant to his duties as a police officer, there is no evidence that

any official involvement of Paris continued after this point. Indeed, once Paris called in the

complaint to dispatch, the record is undisputed that other more senior officers appeared on the scene;

conducted the investigation, treating Paris as a witness; and ultimately made the decision to detain

Martinsky. Hence, even assuming arguendo that material issues of fact exist as to whether Paris had

probable cause, Martinsky’s claim fails. See, e.g., Lo Sacco v. Young, 564 A.2d 610, 612, 618

(Conn. App. Ct. 1989) (finding complaint insufficient to state cause of action for false imprisonment

where police arrived in response to a call from one of the defendants, “took statements from the

parties, and arrested the plaintiff for assault”); see also Russo, 479 F.3d at 204 (noting that the

standards for false arrest and false imprisonment are the same under Connecticut law).




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2. ADA Disability Discrimination Claim



       Martinsky also appeals the District Court’s grant of summary judgment to his former

employer, the City of Bridgeport, on his claims of discrimination based on disability. “[A] prima

facie case of disability discrimination arising from a failure to accommodate” requires a showing

that “(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer

covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff

could perform the essential functions of the job at issue; and (4) the employer has refused to make

such accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96-97 (2d Cir.

2009) (internal quotation marks omitted). The plaintiff “bears the burdens of both production and

persuasion as to the existence of some accommodation that would allow [him] to perform the

essential functions of [his] employment.” Id. at 97.

       We assume for the purpose of this analysis that a reasonable juror could find that Martinsky

had a disability under the ADA and that a reasonable juror could conclude that patrol was not an

essential function of his position. We nonetheless affirm the District Court’s conclusion that there

was no disability discrimination on the basis that Bridgeport never refused Martinsky an

accommodation because Bridgeport did not know of Martinsky’s disability (which the District Court

assumed arguendo in determining that the offer of a training post constituted a reasonable

accommodation).1

       In December 2007, Martinsky asked to remain posted to booking indefinitely, explaining not

that he had a disability, but that he wanted to avoid contact with Defendants, as he feared for his

safety and planned on bringing a civil action against them. Martinsky never informed anyone at the


       1
      Martinsky confirmed at oral argument that he was denied an accommodation in November -
December 2007; not in February 2008 after Bridgeport arguably had notice of his disability.

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Bridgeport Police Department that he needed to remain in booking because of a medical condition;

indeed, at that point in time, Martinsky had never sought treatment or diagnosis of a disability. Nor

is there evidence in the record that Martinsky’s mental disability was so obvious that it would be

reasonable to infer that his employer knew of the disability. A reasonable juror could not conclude

that Martinsky’s requests – phrased as a desire to avoid specific individuals – served as notice to

Bridgeport that Martinsky needed a reasonable accommodation for a mental disability.

        Because Bridgeport never had notice of Martinsky’s disability, Captain Porter’s refusal to

permit Martinsky to remain in booking – for the legitimate reason that additional officers were

needed on patrol – did not constitute a denial of a reasonable accommodation. Because an indefinite

posting to booking was the only accommodation Martinsky requested,2 he fails to state the fourth

element of a prima facie case of denial of reasonable accommodations.

3. CFEPA Discrimination Claim

        Under the Connecticut Fair Employment Practices Act, it is prohibited for an employer to

“refuse to hire or employ or to bar or discharge from employment any individual or to discriminate

against such individual in compensation or in terms, conditions or privileges of employment because

of the individual’s . . . present or past history of mental disability, intellectual disability, learning

disability or physical disability.” CONN. GEN. STAT. § 46a-60(a)(1). While the CFEPA defines

disability more broadly than the ADA, see Beason v. United Techs. Corp., 337 F.3d 271, 276-79 (2d

Cir. 2003) (“[T]he case law on point, although not extensive, uniformly confirms our belief that the

CFEPA’s definition of physical disability is broader than the ADA’s.”), the ADA and the CFEPA




        2
         In his appellate brief, Martinsky argues that there is no evidence that he would have been
able to perform in any job in November 2008, even though he requested a posting to the canine unit
at that time. Accordingly, we do not consider whether a posting to the canine unit would have
constituted a reasonable accommodation (or whether Bridgeport’s subsequent offer to post him to
the training unit was an acceptable counter-offer).

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apply the same standards for reasonable accommodation, Curry v. Allan S. Goodman, Inc., 944 A.2d

925, 933-35 (Conn. 2008) (noting that the CFEPA “implicitly imposes the same duty on employers

to provide reasonable accommodation to disabled individuals that expressly is required under the

federal ADA”). Because Bridgeport did not fail to provide a reasonable accommodation under the

ADA, it likewise did not violate CFEPA.

       We have reviewed Martinsky’s remaining arguments and find them to be without merit. For

the foregoing reasons, the judgment of the District Court is AFFIRMED.



                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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