20-3234-cv Chase v. Town of Canton

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 for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 4th day of October, two thousand twenty-one. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 DENNY CHIN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 NICOLE CHASE, 14 15 Plaintiff-Appellee, 16 17 v. 20-3234-cv 18 19 MARK J. PENNEY, CHRISTOPHER ARCIERO, JOHN 20 GOMPER, CALVIN NODINE, NODINE’S SMOKEHOUSE, 21 INC., 22 23 Defendants, 24 25 TOWN OF CANTON, JOHN COLANGELO, ADAM 26 GOMPPER, 27 28 Defendants-Appellants. 29 _____________________________________ 30 31 For Defendant-Appellant JOHANNA ZELMAN, FordHarrison LLP, Hartford, 32 Town of Canton: Connecticut.

1 33 34 For Defendants-Appellants KRISTAN MACCINI, Howd & Ludorf, LLC, Hartford, 35 John Colangelo & Adam Gompper: Connecticut. 36 37 For Plaintiff-Appellee: LEWIS CHIMES (Mary-Kate Smith, on the brief), Law 38 Office of Lewis Chimes LLC, Stamford, CT. 39 Appeal from a judgment of the United States District Court for the District of Connecticut

(Bryant, J.).

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

DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.

Town of Canton, Detective John Colangelo, and Officer Adam Gompper (“Defendants-

Appellants”) appeal from a September 29, 2020, order of the United States District Court for the

District of Connecticut (Bryant, J.) granting in part and denying in part their motion for summary

judgment. See Chase v. Nodine’s Smokehouse, Inc., No. 3:18-cv-00683,

(D.

Conn. Sept. 29, 2020). We assume the parties’ familiarity with the underlying facts, procedural

history, and issues raised in the case. On interlocutory appeal, Detective Colangelo and Officer

Gompper argue that they are entitled to qualified immunity on Plaintiff-Appellee Nicole Chase’s

federal law claims of false arrest, malicious prosecution, and denial of equal protection under

. Defendants-Appellants further assert that this Court should exercise pendent

jurisdiction over and reverse the district court’s denial of summary judgment on Chase’s state law

claims of false arrest, malicious prosecution, intentional infliction of emotional distress (“IIED”),

and indemnification.

State officials performing discretionary functions are entitled to qualified immunity barring

§ 1983 claims unless such officials “violated a statutory or constitutional right” and that right “was

‘clearly established’ at the time of the challenged conduct.” Francis v. Fiacco,

(2d Cir. 2019) (quoting Ricciuti v. Gyzenis,

(2d Cir. 2016)). We

2 “review de novo a decision by a district court to deny summary judgment on the basis that a public

official is not entitled to qualified immunity.”

at 139 (quoting Golodner v. Berliner,

(2d Cir. 2014)). “This Court has jurisdiction to review an interlocutory order denying

qualified immunity so long as defendants pursue the appeal ‘on stipulated facts, or on the facts that

the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded

the jury might find.’”

(quoting Soto v. Gaudett,

(2d Cir. 2017)). “We do

not, however, have jurisdiction to review a denial of qualified immunity to the extent it is based

on a district court’s finding that there is enough evidence in the record to create a genuine issue as

to factual questions that are, in fact, material to resolution of the qualified immunity claim.”

Doninger v. Niehoff,

(2d Cir. 2011) (citing Salim v. Proulx,

, 89–90

(2d Cir. 1996)). “While an appellate court may reconsider a district court’s determination that an

issue is material, it may not reconsider the district court’s determination that an issue is genuine.”

Spavone v. N.Y. State Dep’t of Corr. Servs.,

(2d Cir. 2013).

We conclude that the Court lacks jurisdiction to consider the federal law claims at issue

here because the officers’ qualified immunity defense turns on disputed facts. We first discuss

the false arrest and malicious prosecution claims before turning to Chase’s equal protection claim.

Defendants-Appellants put forth three arguments for qualified immunity on the § 1983

false arrest and malicious prosecution claims. They first assert that the officers are entitled to

qualified immunity on both the false arrest and malicious prosecution claims because it was

objectively reasonable for them to believe that probable cause supported charges against Chase for

making a false statement. 1 Probable cause is a “complete defense” to false arrest and malicious

1 The relevant statute provides that it is a criminal offense for a person to “intentionally make[] a false written statement . . . with the intent to mislead a public servant” when such statement is

3 prosecution claims. Mara v. Rilling,

(2d Cir. 2019). “Under both federal and

Connecticut law, ‘probable cause to arrest exists when police officers have knowledge or

reasonably trustworthy information of facts and circumstances that are sufficient to warrant a

person of reasonable caution in the belief that the person to be arrested has committed . . . a crime.’”

at 69 (quoting Walczyk v. Rio,

(2d Cir. 2007)). If a plaintiff alleges that a

warrant affidavit included an omission or misrepresentation, the “corrected affidavit” doctrine

nonetheless allows the grant of qualified immunity if a hypothetical corrected affidavit

demonstrates probable cause. See McColley v. County of Rensselaer,

(2d Cir.

2014). The materiality of an alleged omission in a warrant affidavit presents “a mixed question

of law and fact”: a question of law as to the relevance of the information to the probable cause

determination and a question of fact as to the weight that a magistrate would have given the

information or whether the defendants acted deliberately or recklessly in omitting the information

from the warrant affidavits. Walczyk,

(citing United States v. Awadallah,

(2d Cir. 2003)). “Recklessness is inferred when the omitted information was ‘clearly

critical’ to the determination of probable cause.” McColley,

(quoting Rivera v.

United States,

(2d Cir. 1991)).

The district court held that the existence of probable cause posed a “genuine question of

material fact,” Chase,

, at *14, and concluded that a reasonable jury could find

that it was objectively unreasonable for the officers to pursue Chase’s arrest because the alleged

false statement was an omission of a sexual contact that Chase did not have a duty to report, Chase

did not affirmatively deny the sexual contact in her initial statements, and the officers did not notify

“under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable.” Conn. Gen. Stat. § 53a-157b.

4 prosecutors of her supplemental statement before the warrant issued nearly two months later, id.

at *17. We likewise conclude that factual disputes preclude our consideration of the officers’

assertion of qualified immunity. The parties disagree on several facts material to the existence

of probable cause, including whether Chase made her initial written statement under oath; whether

Chase omitted the full extent of the sexual contact in her initial statements with the intent to

mislead authorities; whether Chase characterized the sexual contact as consensual; the

circumstances of her supplemental filing and its potential impact on a magistrate; and the contents

and weight accorded to various details in a hypothetical corrected affidavit. Defendants-

Appellants have not shown that they would be entitled to qualified immunity as a matter of law

under Chase’s version of the facts, and thus we cannot consider their claim.

Second, Defendants-Appellants argue that the officers are entitled to qualified immunity

on the false arrest claim because it was objectively reasonable for them to believe that Chase’s

voluntary surrender to the police did not implicate the Fourth Amendment. The district court did

not consider this issue as it was neither raised nor litigated at summary judgment. “In general, a

federal appellate court does not consider an issue not passed upon below.” United States v.

Gomez,

(2d Cir. 2017) (internal quotation marks and citation omitted). We are

more likely to exercise our discretion to hear such an issue “(1) where consideration of the issue

is necessary to avoid manifest injustice or (2) where the issue is purely legal and there is no need

for additional fact-finding.”

(citation omitted). Here, the officers have shown no “manifest

injustice” that would result from declining to consider this claim now. Moreover, the question

5 of the extent to which Chase’s surrender was voluntary requires further factfinding. 2 We

therefore decline to entertain this alternative ground for qualified immunity.

Third, Defendants-Appellants argue that the resolution of Chase’s false statement

proceedings by a nolle prosequi negates her malicious prosecution claim and thus entitles the

officers to qualified immunity. “[A] plaintiff asserting a malicious prosecution claim under §

1983 must . . . show that the underlying criminal proceeding ended in a manner that affirmatively

indicates his innocence.” Lanning v. City of Glens Falls,

(2d Cir. 2018). The

district court held that a “genuine dispute of material fact” as to the origin and conditions of the

nolle precluded summary judgment on Chase’s malicious prosecution claim. Chase,

, at *16. We agree and conclude that we lack jurisdiction to consider this claim given

the parties’ disagreement about the basis of the nolle and whether the nolle left open the question

of Chase’s innocence.

We turn next to Defendants-Appellants’ argument that the officers are entitled to qualified

immunity on Chase’s equal protection claim. To state an equal protection claim based on a theory

of selective enforcement, a plaintiff must prove that they were (1) “selectively treated” compared

with “others similarly situated” and (2) “the selective treatment was motivated by an intention to

discriminate on the basis of impermissible considerations.” Hu v. City of New York,

(2d Cir. 2019) (citation omitted). Here, the district court determined that “a reasonable jury

could reach different conclusions” about the “factual dispute” of whether gender bias motivated

the officers. Chase,

, at *19–20. Rather than asserting their entitlement to

2 The record indicates only that Detective Colangelo reported that Chase “agreed to turn herself in” upon issuance of the warrant and “walked into the booking room . . . where she was processed.” Joint App’x at 963.

6 qualified immunity as a matter of law, the officers are effectively challenging the district court’s

ruling about the sufficiency of the evidence to create an issue for the jury — a contention that we

cannot entertain on interlocutory review. See, e.g., Doninger,

; Salim,

.

* * *

Having concluded that we lack jurisdiction to consider the question of qualified immunity

as to Chase’s federal law claims, we also lack any basis to exercise pendent jurisdiction over

Chase’s state law claims. We have considered Defendants-Appellants’ remaining arguments and

find them to be without merit. Accordingly, we DISMISS this appeal for lack of appellate

jurisdiction.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

7