19-3267-cv Conquistador v. Zweibelson

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 TO 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 for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 27th day of May, two thousand twenty-one. 4 5 PRESENT: ROBERT D. SACK, 6 RAYMOND J. LOHIER, JR., 7 RICHARD J. SULLIVAN, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 JEAN K. CONQUISTADOR, 11 12 Plaintiff-Appellant, 13 14 v. 19-3267-cv 15 16 ZWEIBELSON, POLICE OFFICER, INDIVIDUAL 17 AND OFFICIAL CAPACITY, GASHI, POLICE 18 OFFICER, INDIVIDUAL AND OFFICIAL 19 CAPACITY, 20 21 Defendants-Appellees, 22 1 KIM BERMUDEZ, INDIVIDUAL AND 2 OFFICIAL CAPACITY, POLICE OFFICER 1, 3 INDIVIDUAL AND OFFICIAL CAPACITY, CITY 4 OF HARTFORD, HARTFORD POLICE 5 DEPARTMENT, STATE OF CONNECTICUT, 6 7 Defendants. 8 ------------------------------------------------------------------ 9 10 FOR PLAINTIFF-APPELLANT: ALYSSA M. HELFER (Andrew W. 11 Schilling, Brian J. Wegrzyn, on 12 the brief), Buckley LLP, New 13 York, NY 14 15 FOR DEFENDANTS-APPELLEES: NATHALIE FEOLA-GUERRIERI, 16 Senior Assistant Corporation 17 Counsel, Hartford, CT

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

19 of Connecticut (Kari A. Dooley, Judge).

20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

21 AND DECREED that the judgment of the District Court is AFFIRMED.

22 Plaintiff Jean K. Conquistador appeals from the October 4, 2019 judgment

23 of the United States District Court for the District of Connecticut (Dooley, J.)

24 dismissing his claim of false arrest under

. The District Court

25 granted summary judgment in favor of Defendants John Zweibelson and Arber

2 1 Gashi, both police officers in the City of Hartford, Connecticut, on the ground

2 that the relevant criminal proceedings against Conquistador did not terminate in

3 his favor. We assume the parties’ familiarity with the underlying facts and

4 prior proceedings, to which we refer only as necessary to explain our decision to

5 affirm.

6 “Where, as here, the burden of persuasion at trial would be on the non-

7 moving party . . . the party moving for summary judgment may satisfy his

8 burden of production under [Federal Rule of Civil Procedure] 56 . . . by

9 submitting evidence that negates an essential element of the non-moving party’s

10 claim.” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co.,

(2d

11 Cir. 2017) (quotation marks omitted). Summary judgment may be granted

12 where the non-movant fails to rebut the movants’ showing that they are entitled

13 to judgment as a matter of law.

14 The parties do not dispute that in this case favorable termination is an

15 element of a false arrest claim brought under § 1983, or that a nolle prosequi

16 satisfies the favorable termination element only if the abandonment of the

17 prosecution was not based on an arrangement with the defendant. In other

3 1 words, the parties do not dispute that a nolle does not support a claim for false

2 arrest if it was entered as part of a plea bargain or if the defendant received the

3 nolle in exchange for providing something of benefit to the State. 1

4 Here, the undisputed record evidence demonstrates that the government

5 entered a nolle as the result of an agreement with Conquistador. Specifically,

6 Conquistador agreed to give the government proof of treatment from his mental

7 health provider in exchange for a dismissal of the criminal charge against him.

8 See App’x 47, 91. In one of his affidavits on summary judgment, Conquistador

9 acknowledged that he understood that “the prosecutor would dismiss the

10 charges brought by defendants Zweibelson and Gashi if [he] showed proof of . . .

11 having rec[ei]ved mental health treatment.” Id. at 91. And during a hearing

12 before the state court, the Connecticut Assistant State’s Attorney stated that the

13 nolle was entered because Conquistador had confirmed that he “ha[d] done

14 treatment during the six-month diversionary period.” Id. at 51. Together,

15 Conquistador’s affidavit and the transcript of the hearing are enough to show

1 The parties agree that the elements of a false arrest claim are the same under federal common law and Connecticut law. See Oral Arg. at 7:55–8:34, 18:45–19:07.

4 1 that Conquistador received the nolle in exchange for providing something of

2 benefit to the State.

3 Conquistador fails to raise any genuine dispute of material fact as to the

4 existence of the arrangement. Conquistador principally argues that the record

5 does not show (1) that the nolle was “expressly conditioned on any specific

6 undertaking” on his part or (2) “the specific terms of any mental health treatment

7 that the prosecutor purportedly expected [him] to engage in.” Appellant’s Br. 2.

8 But as Conquistador’s counsel conceded at oral argument, Conquistador’s

9 agreement to provide proof of treatment in exchange for a nolle constitutes an

10 arrangement with the State. See Oral Arg. at 2:25–2:48. Conquistador does not

11 contend that he failed to provide proof of treatment at the hearing.

12 Conquistador alternatively argues that we should disregard the exchange

13 because he misunderstood the legal consequences of the nolle and thought his

14 agreement would result in a “complete dismissal” of the criminal charge against

15 him. Appellant’s Br. 16–18. We reject the argument, the premise of which is

16 that the dismissal of the charge against Conquistador was not “complete.” The

17 record makes clear that the charge was dismissed with prejudice within thirteen

5 1 months of the nolle. App’x 89–90, 92; see State v. Kallberg,

, 1042

2 (Conn. 2017).

3 We have considered Conquistador’s remaining arguments and conclude

4 that they are without merit. For the foregoing reasons, the judgment of the

5 District Court is AFFIRMED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk of Court

6