08-3858-cv
Roberts v. Babkiewicz

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                _____________________

                                       August Term, 2008
(Argued: July 7, 2009                                               Decided: September 30, 2009)
                                     Docket No. 08-3858-cv

                                    _____________________

                                         Dale C. Roberts,
                                                             Plaintiff-Appellant,

                                                -v.-

                                         Joe Babkiewicz,
                                                             Defendant-Appellee.
                                     _______________________


BEFORE:        CALABRESI, HALL, Circuit Judges, and SESSIONS, District Judge.*
                             ______________________

        Appeal from a grant of Defendant-Appellee’s motion for judgment on the pleadings
entered in the United States District Court for the District of Connecticut (Thompson, J.). On
appeal, Plaintiff-Appellant Roberts challenges the district court’s ruling that his malicious
prosecution claim, advanced under 42 U.S.C. § 1983, fails as a matter of law because the state
nolle prossed the assault charge on the same day that Roberts pleaded guilty to interfering with a
police officer and Roberts, therefore, had not shown under Connecticut law that the dismissal of
the underlying criminal offense resulted in a “favorable termination.” From the record before us
on appeal it is unclear that the criminal charge that was nolled is necessarily related to or arose
from the same circumstances as the criminal offense to which Roberts pleaded guilty. We vacate
the judgment of the district court and remand for further proceedings consistent with this
opinion.
                                     ______________________

FOR PLAINTIFF-APPELLANT:                     JOHN R. WILLIAMS, John R. Williams and
                                             Associates LLC, New Haven, CT.


       *
       The Honorable William K. Sessions III, United States District Judge for the District of
Vermont, sitting by designation.

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FOR DEFENDANT-APPELLEE:                       SCOTT M. KARSTEN, Karsten, Dorman &
                                              Tallberg, LLC, West Hartford, CT.

                                    ______________________


PER CURIAM:

       This is an appeal from a grant of Defendant-Appellee Joe Babkiewicz’s motion for

judgment on the pleadings entered in the United States District Court for the District of

Connecticut (Thompson, J.). Because this matter comes to us on appeal from a judgment on the

pleadings, we rely on the complaint, the answer, any written documents attached to them, and

any matter of which the court can take judicial notice for the factual background of the case. See,

e.g., Faconti v. Potter, 242 Fed. Appx. 775, 777 (2d Cir. 2007) (unpublished).

       On appeal, Plaintiff-Appellant Dale Roberts challenges the district court’s ruling that his

malicious prosecution claim, brought under 42 U.S.C. § 1983, fails as a matter of law because

the state court nolle prossed the assault charge that was the basis for the malicious prosecution

claim on the same day that Roberts also pleaded guilty to interfering with a police officer and

Roberts, therefore, had not shown under Connecticut law that the dismissal of the underlying

criminal offense was a “favorable termination.” From the record before us on appeal it is unclear

whether the nolle prosequi of the criminal charge was necessarily related to or part of the

disposition of the criminal offense to which Roberts pleaded guilty. We vacate the judgment of

the district court and remand for further proceedings consistent with this opinion.




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                                           BACKGROUND

       On December 1, 2004, Dale Roberts was arrested by the Bloomfield, Connecticut Police

Department on various criminal and motor vehicle charges. The record is silent as to the nature

of these charges. In his complaint Roberts has alleged that while he was in custody, Joe

Babkiewicz, a police officer in the town of Bloomfield, assaulted him and inflicted physical

injuries without cause or justification. Roberts further alleged that Babkiewicz then falsely

accused him of assaulting a police officer, a felony, and maliciously prepared a false report of

that charge which was presented to the prosecuting attorney.

       On May 25, 2005, in the Superior Court at Hartford, Connecticut the prosecuting attorney

entered a nolle prosequi with respect to the charge of assaulting a police officer. That same day,

Roberts pleaded guilty to interfering with a police officer on December 1, 2004, the date that he

had allegedly assaulted Officer Babkiewicz. Because the record contains only the guilty plea

sentencing document, we rely on the pleadings, the district court’s opinion, and the parties’ briefs

for the factual background of this case.

       In December 2007, Roberts brought a civil rights action against Babkiewicz under 42

U.S.C. § 1983, alleging excessive force, false arrest, and malicious prosecution. The complaint

asserted that the criminal charge was nolled because “it was apparent from medical evidence that

the plaintiff was innocent of the charge.” Compl. ¶ 9. The district court granted Babkiewicz’s

motion for judgment on the pleadings, finding that the excessive force and false arrest claims

were barred by the statute of limitations. As for the claim of malicious prosecution, the district

court took judicial notice of the Superior Court records showing that the nolle prosequi occurred

on May 25, 2005, the same day as Roberts’s guilty plea, and concluded that the two charges were


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“apparently related.” Roberts v. Babkiewicz, 563 F. Supp. 2d 358, 361 (D. Conn. 2008).

Reasoning that it “would have to ‘conjure up unpleaded facts,’ in order to state a scenario in

which the nolle of the assault charge was not in exchange for the plaintiff’s plea of guilty to

Interfering with an Officer,” the district court concluded that Roberts’s allegations did not

suggest a favorable termination of the underlying criminal offense and that Roberts’s malicious

prosecution claim failed as a matter of law. Id. at 361 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 562 (2007)). Roberts appeals.

                                          DISCUSSION

       We review de novo a grant of a judgment on the pleadings under Federal Rule of Civil

Procedure 12(c). Nicholas v. Goord, 430 F.3d 652, 658 n.8 (2d Cir. 2005).

       “In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a

plaintiff must show a violation of his rights under the Fourth Amendment, and establish the

elements of a malicious prosecution claim under state law.” Fulton v. Robinson, 289 F.3d 188,

195 (2d Cir. 2002). To prevail on a malicious prosecution claim under Connecticut law, a

plaintiff must prove the following elements: (1) the defendant initiated or continued criminal

proceedings against the plaintiff; (2) the criminal proceeding terminated in favor of the plaintiff;

(3) “the defendant acted without probable cause”; and (4) “the defendant acted with malice.”

McHale v. W.B.S. Corp., 446 A.2d 815, 817 (Conn. 1982).

       A nolle prosequi is a “unilateral act by a prosecutor, which ends the pending proceedings

without an acquittal and without placing the defendant in jeopardy.” Cislo v. City of Shelton, 692

A.2d 1255, 1260 n.9 (Conn. 1997) (internal quotations and citations omitted). Under

Connecticut law, a nolle prosequi terminates the prosecution, but the prosecuting authority is


                                                  4
permitted to initiate a new action against the defendant within the statute of limitations. Conn.

Practice Book § 39-31. A nolle prosequi may not be entered if the accused objects and demands

either a trial or dismissal. Conn. Gen. Stat. § 54-56b. Criminal charges that have been nolled are

erased thirteen months after entry of the nolle prosequi. Conn. Gen. Stat. § 54-142a(c).

       Connecticut law adopts a liberal understanding of a favorable termination for the

purposes of a malicious prosecution claim. See See v. Gosselin, 48 A.2d 560, 561 (Conn. 1946)

(“It is not necessary that the accused should have been acquitted. It is sufficient if he was

discharged without a trial under circumstances amounting to an abandonment of the prosecution .

. . .”); Colli v. Kamins, 468 A.2d 295, 297 (Conn. Super. Ct. 1983) (“An abandonment of a

criminal proceeding, so far as the plaintiff’s right to prevail is concerned, is the equivalent of its

successful termination.”); see also DeLaurentis v. City of New Haven, 597 A.2d 807, 820 (Conn.

1991) (“[W]e have never required a plaintiff in a vexatious suit action to prove a favorable

termination either by pointing to an adjudication on the merits in his favor or by showing

affirmatively that the circumstances of the termination indicated his innocence or nonliability, so

long as the proceeding has terminated without consideration.”); Russo v. City of Hartford, 184 F.

Supp. 2d 169, 186 (D. Conn. 2002) (determining that the Connecticut Supreme Court considers

“the burden to establish the termination prong a minimal one, with little emphasis on whether the

actual termination was favorable to the plaintiff.”).

       The United States District Court for the District of Connecticut has reached different

conclusions on whether a nolle prosequi bars a claim of false arrest or malicious prosecution.

What these cases have in common however is that they were adjudicated at summary judgment,

and the outcome depended on whether facts material to the reasons for the nolle prosequi


                                                   5
remained in dispute. See, e.g., Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 249 (D. Conn. 2008)

(summary judgment denied because deposition testimony provided evidence that the nolle was

not conditioned on any benefit to state or victim); Clark v. Dowty, No. 3:05-CV-1345 (WWE),

2007 WL 2022045 (D. Conn. July 9, 2007) (summary judgment granted because nolle prosequi

was conditioned upon completion of therapy); Holman v. Cascio, 390 F. Supp. 2d 120, 125 (D.

Conn. 2005) (summary judgment denied because deposition testimony provided evidence that

nolles were not entered as part of a plea bargain); Walsh v. Sousa, No. Civ. A. 3:01CV1872,

2004 WL 717169 (D. Conn. Mar. 25, 2004) (summary judgment granted); Galazo v. City of

Waterbury, 303 F. Supp. 2d 213, 218-19 (D. Conn. 2004) (malicious prosecution claim survived

summary judgment); Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 171 (D. Conn. 2003)

(summary judgment granted because the charges were dismissed in exchange for a charitable

contribution).

       The majority of cases from Connecticut courts interpret Connecticut law so that a nolle

prosequi satisfies the “favorable termination” element as long as the abandonment of the

prosecution was not based on an arrangement with the defendant. See Holman, 390 F. Supp. 2d

at 123 (“The majority of decisions applying Connecticut law . . . hold that a nolle of the criminal

charge may still permit the plaintiff to satisfy [the favorable termination] element if the

circumstances of the nolle satisfy the See v. Gosselin test of an abandonment of prosecution

without request from or by an arrangement with [the defendant].” (internal quotations omitted)).

Under Connecticut law, as Holman correctly stated, “the mere allegation of a nolle in a complaint

may be enough to withstand a motion to dismiss under Fed.R.Civ.P.12(b)(6).” Id. at 124.




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However, “a nolle will preclude a subsequent case for malicious prosecution when it was made

as part of a plea bargain . . . .” Id. at 123-24.

        The district court here concluded that the assault charge against Roberts that was nolled

on the same date as the guilty plea was “apparently” part of Roberts’s plea agreement by which

he pleaded guilty to interfering with a police officer. Roberts, 563 F. Supp. 2d at 361.

Notwithstanding the temporal proximity of the two charges and the subsequent guilty plea to one

and the nolle prosequi of the other entered on the same day, there is nothing in the record that

proves the assault charge was nolled as part of the bargain struck.

        Accepting the factual allegations of the complaint as true, Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949-50 (2009), the prosecuting attorney nolled the charge “because it was apparent from

medical evidence that the plaintiff was innocent of the charge.” Drawing all reasonable

inferences from these facts in favor of the plaintiff, he has stated a plausible claim for relief, to

wit, that the prosecuting attorney terminated the prosecution based on Roberts’s innocence and

not because of a negotiated plea or other consideration. Without additional facts explaining the

circumstances of Roberts’s initial arrest on December 1, 2004 and of his subsequent guilty plea

and the nolle prosequi, both entered on May 25, 2005, we must accept Roberts’s allegation that

the assault charge brought by Officer Babkiewicz was nolled because medical evidence proved

his innocence.

        Because Roberts has adequately pled a claim for relief that is plausible on its face, i.e., he

has pled facts which, if taken as true together with all reasonable inferences, would lead to the

conclusion that the nolle prosequi was a favorable termination under Connecticut law, we must

vacate the judgment of the district court and remand the case for further proceedings.


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                                         CONCLUSION

       For the reasons stated herein, the judgment of the district court is vacated, and the case is

remanded for further proceedings consistent with this opinion.




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