Nodoushani v. Southern Connecticut State University

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OMID NODOUSHANI v. SOUTHERN CONNECTICUT

STATE UNIVERSITY ET AL.

(AC 34778)

DiPentima, C. J., and Lavine and Borden, Js.

Argued April 22—officially released August 5, 2014

(Appeal from Superior Court, judicial district of New

Haven, Young, J.)

William S. Palmieri, for the appellant (plaintiff).

Peter M. Haberlandt, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney gen-

eral, and Ann E. Lynch, assistant attorney general, for

the appellees (defendant Cecil Murphy et al.).

Opinion

BORDEN, J. This appeal arises from an incident in

which the individual defendants, acting in their capaci-

ties as administrators of the defendant Southern Con-

necticut State University (university), allegedly made

false and malicious statements accusing the plaintiff of

submitting a fraudulent request for personal reimburse-

ment for funds that he purportedly expended at a pro-

fessional conference, ultimately resulting in his arrest.

The plaintiff, Omid Nodoushani, appeals from the sum-

mary judgment rendered by the trial court in favor of

the individual defendants, Cecil Murphy, Cheryl Norton,

and Bharat Bhalla.1 In this appeal, the plaintiff claims

that the trial court improperly granted the defendants’

motion for summary judgment on his false arrest, mali-

cious prosecution, and defamation claims because it

improperly determined that: (1) there was no genuine

issue of material fact with respect to his common-law

claims of false arrest and malicious prosecution; and

(2) the defendants had qualified immunity as to his

claim of defamation. We disagree with the plaintiff and

affirm the judgment of the trial court.

The plaintiff brought this action against the defen-

dants and the university, alleging, inter alia, false arrest

and malicious prosecution, pursuant to 42 U.S.C. § 1983

and the common law, and defamation. The defendants

and the university moved to dismiss the complaint, and

the court, A. Robinson, J., granted the motion to dismiss

with respect to the university; see footnote 1 of this

opinion; but denied the motion as to the defendants.

Thereafter, the defendants filed a motion for summary

judgment, which the plaintiff opposed pursuant to Prac-

tice Book § 17-45. Following oral argument, the court,

Young, J., issued a memorandum of decision granting

the defendants’ motion. This appeal followed.

The following procedural history and undisputed

facts are relevant to our resolution of this appeal. The

plaintiff was employed by the university as a tenured

professor of management and management information

systems, and as the director of the masters of business

administration program in the university’s school of

business. In June, 2005, the university granted permis-

sion to the plaintiff to attend and present a paper at the

Eighth Annual Conference on Ethics and Technology

(conference), to be held on June 24 and 25, 2005, at St.

Louis University in St. Louis, Missouri. On July 6, 2005,

the plaintiff submitted to Bhalla, the interim dean of

the university’s school of business, a request for reim-

bursement in the amount of $1213.61 for expenses alleg-

edly incurred while attending the conference. The

plaintiff submitted several documents in support of his

reimbursement request, including a copy of a confer-

ence registration receipt bearing his name and the

amount expended of $175.

Bhalla had concerns regarding the authenticity of the

plaintiff’s reimbursement request. Specifically, Bhalla

noted that the conference registration receipt was not

an original document, and, therefore, may have been

altered. In light of his concerns, Bhalla sent a memoran-

dum to the plaintiff requesting further explanation and

documentation of his travel expenses. The plaintiff,

however, failed to provide original documentation of his

conference registration receipt. Consequently, Bhalla

contacted St. Louis University to determine whether

the plaintiff actually attended the conference and pre-

sented a paper, as he had claimed.

Through his inquiry, Bhalla obtained several docu-

ments from St. Louis University indicating that the

plaintiff had neither registered for the conference nor

presented a paper. Following this inquiry, Bhalla sent to

Norton, the university president, a memorandum with

supporting documents gathered pursuant to his investi-

gation (collectively, memorandum). The documents

submitted to Norton in support of Bhalla’s memoran-

dum included the following: (1) the plaintiff’s reim-

bursement request, including the registration receipt;

(2) a list of the conference registrants, which did not

include the plaintiff’s name; (3) an e-mail to Bhalla from

an employee of St. Louis University whose signature

appeared on the plaintiff’s registration receipt stating,

‘‘I believe that the receipt has been altered. I used the

Ariel 16 font with only the first letter of the first and

last names capitalized and the receipt has both names

typed in all caps and looks to be in a font other than

Ariel 16’’; (4) a list of individuals who presented papers

at the conference, which did not include the plaintiff’s

name; (5) an e-mail to Bhalla from the conference mod-

erator stating that the plaintiff did not present his paper.

Subsequently, the university police department

obtained a copy of Bhalla’s memorandum and applied

for a warrant to arrest the plaintiff on the charge of

attempt to commit larceny in the second degree in viola-

tion of General Statutes §§ 53a-49 and 53a-123. The affi-

davit supporting the warrant application stated that it

was based upon Bhalla’s memorandum to Norton, as

well as an investigation conducted by John Flynn, a

detective with the university police department. On Sep-

tember 20, 2005, the police arrested the plaintiff pursu-

ant to the arrest warrant. The state subsequently nolled

the criminal charge on July 18, 2006.

The plaintiff subsequently filed this action against

the defendants in their individual capacities, alleging,

inter alia, false arrest, malicious prosecution, and defa-

mation. With respect to his claims of false arrest and

malicious prosecution, the plaintiff alleged that after

he furnished his reimbursement request to Bhalla, ‘‘the

defendant Bhalla falsely, maliciously and without prob-

able cause to do so stated in writing in a letter to the

. . . [u]niversity and Norton, inter alia, that: A. The

plaintiff engaged in ‘[f]raudulent behavior and ethical

[misconduct]’; B. The plaintiff ‘[d]id not attend the 8th

annual Ethics and Technology Conference in St. Louis

University on June 24–25, 2005’; C. The plaintiff ‘did

not pay the registration fee of $ 175.00’; and D. The

plaintiff was on vacation from June 16, 2005 through

June 26, 2005.’’ The complaint further alleged that ‘‘[a]t

or about the time of the false allegations letter, the

defendants met and planned the steps they would take

against the plaintiff. . . . At that meeting, the defen-

dant Norton ordered her subordinates to take the

strongest possible measures against the plaintiff. . . .

Thereafter . . . the defendant Bhalla or one or more

agents, officers or employees of the . . . [u]niversity,

with malice and without probable cause to do so, con-

tacted the [university] [p]olice [d]epartment for the pur-

pose of having the plaintiff arrested. . . . In support

of the desire and effort to have the plaintiff arrested

. . . the defendant Bhalla or one or more agents, offi-

cers or employees of the . . . [u]niversity provided the

[university] police with the letter referenced above, con-

taining numerous false allegations and statements

regarding the plaintiff. . . . Numerous false state-

ments contained in the letter appeared verbatim in the

[a]ffidavit in support of the plaintiff’s arrest. . . .

‘‘Thereafter . . . the plaintiff was arrested, charged

with criminal attempt to commit larceny in the second

degree, and taken into custody from his office at the

. . . [u]niversity. . . . With malice and for the purpose

of using the criminal justice system to discredit the

plaintiff, support his termination from employment and

to ruin his academic career and cause him great emo-

tional financial harm, the defendants caused the issu-

ance of a warrant for the plaintiff’s arrest on the false

charge of attempt to commit larceny in the second

degree. . . . As a result, the plaintiff was arrested and

prosecuted continuously from September of 2005

through July of 2006, was required to hire attorneys for

his defense, was required to appear many times in

courts as an accused criminal to defend himself against

the false and spurious allegations . . . . The defen-

dants caused the aforesaid prosecution to be main-

tained and pressed against the plaintiff . . . . There

was no probable cause for the aforesaid arrest or prose-

cution of the plaintiff and his said arrest and prosecu-

tion by the defendants was malicious, wilful, and

wanton.’’

At a deposition conducted on June 3, 2010, in a related

federal action brought by the plaintiff,2 the plaintiff

admitted under oath that he forged the conference regis-

tration receipt and that he did not present his paper at

the conference. The plaintiff reaffirmed these admis-

sions at a deposition in this case conducted on March 2,

2012. Later, the defendants filed a motion for summary

judgment on all of the claims asserted against them

on the ground that the plaintiff failed to produce any

admissible evidence sufficient to raise a genuine issue

of material fact. The trial court granted the defendants’

motion for summary judgment. This appeal followed.

Additional facts and procedural history will be set forth

as necessary.

As a preliminary matter, we set forth the appropriate

standard of review. ‘‘In seeking summary judgment, it

is the movant who has the burden of showing the

nonexistence of any issue of fact. The courts are in

entire agreement that the moving party for summary

judgment has the burden of showing the absence of

any genuine issue as to all the material facts, which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law. The courts hold

the movant to a strict standard. To satisfy his burden

the movant must make a showing that it is quite clear

what the truth is, and that excludes any real doubt as

to the existence of any genuine issue of material fact.

. . . As the burden of proof is on the movant, the evi-

dence must be viewed in the light most favorable to

the opponent. . . . When documents submitted in sup-

port of a motion for summary judgment fail to establish

that there is no genuine issue of material fact, the non-

moving party has no obligation to submit documents

establishing the existence of such an issue. . . . Once

the moving party has met its burden, however, the

opposing party must present evidence that demon-

strates the existence of some disputed factual issue.

. . . It is not enough, however, for the opposing party

merely to assert the existence of such a disputed issue.

Mere assertions of fact . . . are insufficient to estab-

lish the existence of a material fact and, therefore, can-

not refute evidence properly presented to the court

under Practice Book § [17-45]. . . . Our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Internal quotation marks omit-

ted.) Ramirez v. Health Net of the Northeast, Inc., 285

Conn. 1, 10–11, 938 A.2d 576 (2008).

I

We first address the plaintiff’s claim that the trial

court improperly granted the defendants’ motion for

summary judgment with regard to his false arrest and

malicious prosecution claims. As a threshold matter,

we note the plaintiff’s contention that his complaint

alleges claims of false arrest and malicious prosecution

pursuant to both § 1983 and the common law. The

defendants contend that the plaintiff failed to properly

plead his claims pursuant to § 1983, and, therefore, the

claims set forth in the complaint are based entirely on

the common law. For the purposes of this appeal, we

agree with the trial court’s conclusion that it is not

necessary to determine whether the plaintiff’s § 1983

claims were properly alleged in the complaint, in light

of the fact that our substantive analysis of the false

arrest and malicious prosecution claims is virtually

identical under § 1983 and the common law.3 Jocks v.

Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (‘‘[c]laims

for false arrest or malicious prosecution, brought under

§ 1983 . . . are ‘substantially the same’ as claims for

false arrest or malicious prosecution under state law’’).

Turning to the substance of the plaintiff’s false arrest

and malicious prosecution claims, the plaintiff contends

that the trial court improperly granted the defendants’

motion for summary judgment because there existed a

genuine issue of material fact regarding whether the

defendants ‘‘instigated the proceedings against [him]

by contacting the police and then encouraging . . .

prosecution’’ on the basis of false allegations.4 (Internal

quotation marks omitted.) We disagree.

We first set forth the elements of the common-law

claims of false arrest and malicious prosecution. ‘‘False

imprisonment, or false arrest, is the unlawful restraint

by one person of the physical liberty of another. . . .

False imprisonment is categorized as an intentional tort

for which the remedy at common law was an action

for trespass. . . . [I]n the case of a false imprisonment

the detention must be wholly unlawful . . . . To pre-

vail on a claim of false imprisonment, the plaintiff must

prove that his physical liberty has been restrained by

the defendant and that the restraint was against his

will, that is, that he did not consent to the restraint or

acquiesce in it willingly.

‘‘An action for malicious prosecution against a private

person requires a plaintiff to prove that: (1) the defen-

dant initiated or procured the institution of criminal

proceedings against the plaintiff; (2) the criminal pro-

ceedings have terminated in favor of the plaintiff; (3)

the defendant acted without probable cause; and (4)

the defendant acted with malice, primarily for a purpose

other than that of bringing an offender to justice. . . .

‘‘The weight of modern authority is that where the

defendant has attempted to comply with legal require-

ments, and has failed to do so through no fault of his

own, false imprisonment will not lie, and the remedy

is malicious prosecution. The policy is to give the defen-

dant the privilege of making reasonable efforts to bring

his case properly before the court, without liability

unless his ultimate purpose is an improper one. W.

Prosser, Torts (4th Ed.) § 11.’’ (Citations omitted;

emphases added; internal quotation marks omitted.) Lo

Sacco v. Young, 20 Conn. App. 6, 19–20, 564 A.2d 610,

cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).

We conclude that the defendants satisfied their initial

burden of demonstrating the absence of a genuine issue

of material fact with regard to the plaintiff’s false arrest

and malicious prosecution claims. See Ramirez v.

Health Net of the Northeast, Inc., supra, 285 Conn. 10–

11. We agree with the trial court’s determination that,

‘‘[i]n viewing the evidence in the light most favorable

to the plaintiff, the defendants have offered substantial

evidence that the defendants utilized the proper legal

channels to report their complaint against the plaintiff.’’

Therefore, the defendants demonstrated that there was

no genuine issue of material fact as to whether they

acted unlawfully or without probable cause.

In particular, the defendants submitted ample docu-

mentation in support of their motion for summary judg-

ment, thereby demonstrating that any suspicions with

respect to the fraudulent nature of the plaintiff’s reim-

bursement request were well-founded and based on

a good faith investigation conducted by Bhalla. The

defendants submitted a copy of Bhalla’s affidavit, which

details the steps that he took to investigate the authen-

ticity of the plaintiff’s reimbursement request. They

additionally provided the documents that Bhalla

obtained pursuant to his investigation, including numer-

ous correspondences between Bhalla and St. Louis Uni-

versity, which indicate that the plaintiff was not

registered for the conference and did not present a

paper, as he purported to have done in his reimburse-

ment request. The defendants also submitted a copy of

the plaintiff’s sworn deposition testimony, wherein the

plaintiff admitted that he submitted to Bhalla a falsified

conference registration receipt, and that he did not pre-

sent a paper at the conference. All of these documents

demonstrate that any communications that the defen-

dants had with the university police regarding the plain-

tiff’s reimbursement request were not made unlawfully

or without probable cause. To the contrary, the defen-

dants’ allegations were supported by ample documenta-

tion that would be admissible at trial—including the

plaintiff’s own sworn admissions.

The plaintiff, on the other hand, failed to present any

admissible evidence demonstrating that the defendants

acted unlawfully or without probable cause. The only

evidence that the plaintiff submitted in opposition to

the defendants’ motion for summary judgment was his

deposition testimony, consisting of bare conclusory

assertions that the defendants directed the police to

arrest him on the basis of false allegations. See Chadha

v. Charlotte Hungerford Hospital, 97 Conn. App. 527,

540, 906 A.2d 14 (2006) (no genuine issue of material

fact where plaintiff relied on ‘‘his own conclusory state-

ments and personal assessment of the motives of the

defendants’’ in opposing summary judgment). Most

damaging to the plaintiff’s claims on appeal is his admis-

sion—set forth within the very deposition testimony on

which he presently relies—that he did not register for

the conference or present a paper as he purported to

do. Because the plaintiff’s claims of false arrest and

malicious prosecution remain wholly unsubstantiated,

we conclude that the trial court properly granted the

defendants’ motion for summary judgment.5

II

The plaintiff next claims that the trial court improp-

erly granted the defendants’ motion for summary judg-

ment with respect to his defamation claim.6 The

following additional facts are relevant to our disposition

of this claim.

The plaintiff alleged in his complaint that, in addition

to the facts set forth in support of his false arrest and

malicious prosecution claims, ‘‘[t]he defendants pub-

lished one or more defamatory statements about the

plaintiff. . . . The defamatory statements identified

the plaintiff to a third person. . . . The plaintiff’s repu-

tation suffered injury as a result of the statements.’’

Although the complaint does not set forth specific facts

in support of the plaintiff’s defamation claim, the plain-

tiff’s memorandum opposing the defendants’ motion

for summary judgment provides the following: ‘‘The

defendants defamed the plaintiff by publishing material

false allegations about him, falsely claiming both crimi-

nal behavior and professional incompetence. . . . The

defendants published this information to members of

the . . . [u]niversity [p]olice, to the [university] news-

paper, to the New Haven Register, and on the Internet.

. . . On the day after the plaintiff’s arrest, the defendant

Norton published material false statements about the

plaintiff to the [university] community at large in the

‘President’s Dialogue.’ . . . The plaintiff was identified

as the subject of defendant Norton’s comments, which

included stating that the plaintiff’s arrest was ‘cleaning

up the school’ . . . .

‘‘The plaintiff further suffered substantial harm to his

reputation. . . . He testified that, after the publication

of a claim that he had engaged in criminal conduct, he

was removed from his positions at Albertus Magnus

[College] and the University of New Haven. . . . Those

positions have never been restored to him. . . . The

plaintiff further was removed as [d]irector of the [mas-

ters of business administration] program at [the univer-

sity]. . . . That position has never been restored. . . .

The plaintiff had travel restrictions placed upon him by

his employer subsequent to the defendants’ defama-

tion.’’ (Citations omitted.)

The defendants, in moving for summary judgment,

argued that the plaintiff failed to establish a prima facie

defamation claim, and that the defendants were pro-

tected by the doctrine of qualified immunity.7 In its

memorandum of decision granting the defendants’

motion for summary judgment, the trial court deter-

mined that ‘‘[t]he plaintiff argues, without documentary

evidence, that the defendants published . . . defama-

tory statements to the university police, in the university

newspaper, to the New Haven Register, on the Internet,

and in the ‘President’s Dialogue.’ Although the plaintiff’s

proffered deposition testimony consists of assertions

that the statements were false, he provides no documen-

tary evidence to counter the defendants’ evidence as

to the truth of the allegedly defamatory statements

made by them. The plaintiff’s evidence merely consists

of his own assertions that the statements were false.

These assertions do not call into question the alleged

facts that the plaintiff submitted an altered receipt to

the university so as to be reimbursed for the registration

fee for a conference which the plaintiff neither regis-

tered [for] nor attended.’’ Moreover, the court stated

that ‘‘[e]ven if the defendants made defamatory state-

ments about the plaintiff, they have demonstrated that

they are entitled to qualified immunity. . . . The plain-

tiff has offered no admissible evidence to establish mal-

ice in fact or actual malice, which is required to

overcome the immunity.’’ (Citation omitted; emphasis

added.)

The plaintiff contends that the court improperly

relied upon the doctrine of qualified immunity as its

‘‘sole basis’’ for granting the defendant’s motion for

summary judgment because such doctrine was inappli-

cable as a matter of law. (Emphasis added.) Contrary

to the plaintiff’s characterization, the court cited the

doctrine of qualified immunity only as an alternative

basis for granting summary judgment, and not as the

sole basis for its decision. The court’s decision princi-

pally was based upon its determination that the plaintiff

failed to raise a genuine issue of material fact as to the

prima facie elements of his defamation claim.

‘‘It is well established that this court may rely on

any grounds supported by the record in affirming the

judgment of a trial court.’’ State v. Burney, 288 Conn.

548, 560, 954 A.2d 793 (2008). In this appeal, the plaintiff

does not claim that the court improperly determined

that he failed to establish a prima facie defamation

claim. ‘‘An unmentioned claim is, by definition, inade-

quately briefed, and one that is generally . . . consid-

ered abandoned.’’ (Internal quotation marks omitted.)

State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007).

An appellant’s failure to raise all possible grounds for

reversal operates as waiver. See Harris v. Bradley

Memorial Hospital & Health Center, Inc., 306 Conn.

304, 325 n.10, 50 A.3d 841, (2012), cert. denied,

U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013).

Accordingly, because the plaintiff waived the ground

upon which the court based its decision, we decline to

review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1

The university filed a motion to dismiss the claims against it, which the

court, A. Robinson, J., granted on July 31, 2008, on the ground of sovereign

immunity. The university, therefore, is not a party to this appeal. In this

opinion, we refer to the individual defendants collectively as the defendants,

and individually by name where appropriate.

2

This deposition was conducted in connection with the plaintiff’s similar

claims against the university brought in the United States District Court for

the District of Connecticut subsequent to the commencement of this state

court action. The federal claims set forth within that action were resolved

by summary judgment in favor of the university, and the remaining state

claims were ultimately dismissed for lack of subject matter jurisdiction on

the ground of the doctrine of sovereign immunity. See Nodoushani v. South-

ern Connecticut State University, United States District Court, Docket No.

3:08CV00561 (AWT) (D. Conn. September 29, 2011), aff’d in part, vacated

in part, 507 Fed. Appx. 79 (2d Cir. 2013).

3

Although the substantive analysis of the plaintiff’s § 1983 and common-

law claims of false arrest and malicious prosecution is virtually identical

under § 1983 and the common law, in order to establish a § 1983 claim, the

plaintiff bears the additional burden of demonstrating both a constitutional

or statutory violation, and that the alleged misconduct was carried out

‘‘under color of state law.’’ See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct.

2250, 101 L. Ed. 2d 40 (1988). With respect to the latter requirement, the

trial court ruled that the plaintiff failed to demonstrate the existence of a

genuine issue of material fact as to whether the defendants were acting under

color of state law. In this appeal, the plaintiff claims that this determination of

the trial court was improper. We need not reach this claim, however, in

light of our conclusion, as set forth in part I of this opinion, namely, that

the plaintiff failed to establish a genuine issue of material fact as to the

prima facie elements of his false arrest and malicious prosecution claims.

4

Notably, the plaintiff does not contend that the defendants physically

restrained him.

5

We further note that, in this appeal, the plaintiff additionally claims that

the trial court failed to analyze his federal false arrest claim under the

standard set forth in Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct.

2674, 57 L. Ed. 2d 667 (1978). The plaintiff relies upon Golino v. New Haven,

950 F.2d 864 (1991), cert. denied, 505 U.S. 1221, 112 S. Ct. 3032, 120 L. Ed.

2d 902 (1992), and Ham v. Greene, 248 Conn. 508, 729 A.2d 740, cert. denied,

528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999), for the proposition

that the court was required to conduct an inquiry into whether the affidavit

supporting the arrest warrant, when viewed in the absence of material

misstatements or omissions, was supported by probable cause sufficient to

support the issuance of the arrest warrant. In light of our determination

that the trial court properly granted the defendants’ motion for summary

judgment on the plaintiff’s federal false arrest claim, as discussed in part I

of this opinion, we decline to review his Franks claim. See Russell v. Russell,

91 Conn. App. 619, 636–37, 882 A.2d 98 (unnecessary for appellate court to

review all claims brought on appeal where one claim is dispositive), cert.

denied, 276 Conn. 924, 925, 888 A.2d 92 (2005).

6

‘‘A defamatory statement is defined as a communication that tends to

harm the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing with him

. . . . To establish a prima facie case of defamation, the plaintiff must

demonstrate that: (1) the defendant published a defamatory statement; (2)

the defamatory statement identified the plaintiff to a third person; (3) the

defamatory statement was published to a third person; and (4) the plaintiff’s

reputation suffered injury as a result of the statement.’’ (Citation omitted;

internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267

Conn. 210, 217, 837 A.2d 759 (2004). ‘‘For a claim of defamation to be

actionable, the statement must be false and truth is an affirmative defense.’’

Rafalko v. University of New Haven, 129 Conn. App. 44, 53, 19 A.3d 215

(2011).

7

‘‘A [governmental] defendant will be entitled to qualified immunity if

either (1) his actions did not violate clearly established law or (2) it was

objectively reasonable for him to believe that his actions did not violate

clearly established law.’’ (Internal quotation marks omitted.) Fleming v.

Bridgeport, 284 Conn. 502, 519, 935 A.2d 126 (2007).