Steven Edelman v. Christopher Laux et al. (2013)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 130)

Defendants Christopher Laux, Marjorie Shansky, and Donald Harwood move to strike the October 31, 2011 complaint.   The plaintiff objects on both procedural and substantive grounds.

Plaintiff brings this action under 42 U.S.C. §§ 1983 and 1988, alleging violations of his rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution.   Additionally, he claims to bring it under Conn. Gen.Stat. § 52–592.   He alleges, in the first count, that Christopher Laux, acting in concert with another individual (previously a defendant),¹ and acting under color of state law, engaged in various and sundry acts which culminated in his unlawful, malicious prosecution under Gen.Stat. § 29–254a which creates a penalty for violation of the State Building Code. Count three is also aimed at Laux, and accuses him and that former defendant of selective prosecution under that same statute.   The fourth count charges all defendants with “deprivation of due process.”

Plaintiff emphasizes at paragraph 7 of the complaint that he is suing these defendants in their individual capacities.

The three remaining individual defendants now move to strike on the basis that any acts they are alleged to have committed are insufficient to overcome the qualified immunity they hold in the performance of their official duties.

I. Propriety of the Motion to Strike

The court will first address plaintiff's three procedural objections to this motion.

A. Is the Motion in Proper Form?

He begins with the claim that the motion is deficient in form, in violation of Practice Book § 10–41, which prescribes that “[e]ach motion to strike ․ shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   The motion is definitely succinct, reading, in pertinent part, “defendants ․ move to strike the plaintiff's complaint in its entirety on the grounds that they are entitled to qualified immunity.”   Plaintiff relies upon Stuart v. Freiburg, 102 Conn.App. 857 (2007), which reversed a trial court grant of a motion to strike.   That case involved a four-count complaint, challenged by a motion which stated, simply, “that all of the counts ‘are legally insufficient’ and that they ‘fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs.’  “ 102 Conn.App. 857, 862.   The motion gave no specifics as to the deficiencies of any of the counts.   Footnotes 2 and 3 of the Stuart decision make clear why plaintiff's dependency upon this case is misplaced.   Footnote 2 explains that the purpose of the rule is to put the opposing party and the court on notice of the specific defect complained of.   Footnote 3 continues this discussion and reconciles Stuart with the earlier case of Rowe v. Godou, 12 Conn.App. 538 (1987), rev'd on other grounds, 209 Conn. 273 (1988).   The Rowe courts concluded that “a motion to strike that lacks specificity but which adequately submits the material issue to the court is sufficient to comply with Practice Book § 10–41 (then § 154)”;  102 Conn.App. 857, 862.   Here, however parsimoniously drafted, the motion does submit the material issue on the complaint's single count to the defendant and the court with sufficient distinction and clarity.   Plaintiff's objection on this basis cannot be sustained.

B. Is the Motion the Correct Means of Raising the Issue of Qualified Immunity?

Plaintiff's second procedural objection focuses upon the nature of the motion, that is, its claim that the complaint ought to be stricken on account of the defendants' qualified immunity.   Plaintiff argues that in Westport Taxi Service v. Westport Transit District, 235 Conn. 1 (1995), and Carrubba v. Moskowitz, 81 Conn.App. 382 (2004), each of our appellate tribunals held that immunity must be pleaded as a special defense.   If that rule applies here, its application would be fatal to the motion at hand.

Read in isolation, Westport Taxi includes language that seems to support plaintiff's arguments.   At page 24, the decision states that “governmental immunity must be raised as a special defense in the defendant's pleadings.”   It was a case in which, until it reached the appellate level, immunity had not been raised as a defense by any means.   The cited language addresses the absolute silence on this issue at the trial level.   But the Supreme Court has since ruled that this language does not mean that immunity may exclusively be raised as a special defense.   In Violano v. Fernandez, 280 Conn. 310 (2006), citing, inter alia, Westport Taxi and Gauvin v. New Haven, 187 Conn. 180 (1982), the Court ruled quite clearly on this issue:

We have previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings ․ Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded ․ The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.   Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike ․

280 Conn. 310, 322 (citations omitted;  internal quotation marks omitted).

This court considers the Violano ruling ² determinative on the objection now before it.   Although Violano deals with municipal officials' immunity, there is no discernible reason to confine this rule so as to preclude a similar scrutiny of similar allegations against state officers.   Plaintiff's objection to defendants' use of a motion to strike on this basis cannot be sustained.

C. Has the Motion Been Waived by Prior Pleadings?

Lastly, plaintiff objects to the motion for interrelated reasons having to do with the sequence of pleadings filed in this case.   The docket entries reveal that on January 12, 2012, defendants filed a motion to strike (# 104) which was never submitted to the court for adjudication;  on May 24, 2013, that motion was formally withdrawn.   Meanwhile, on July 27, 2012, while the first motion to strike was still pending, defendants filed a motion to dismiss (# 111) which Judge Calmar granted in part and denied in part on February 13 of this year.   The instant motion arrived on April 10 of 2013.   Plaintiff contends that the pendency of the 2012 motion to strike on April 10 of 2013 is fatal to a consideration of the present motion on two alternative grounds:  1) because it puts defendants in violation of the sequencing directives of Practice Book § 10–6 and should be deemed a waiver under § 10–7;  and 2) that a party is allowed only one motion to strike, and defendants exhausted that procedure in 2012.   Rule 10–6 specifies that a motion to dismiss must precede a motion to strike.   The very next rule, § 10–7, deems the filing of any particular motion to function as a waiver of the right to file any pleading which might have earlier been filed in the order laid out by 10–6.   In addition to the sequencing, plaintiff points to several cases concluding that a party's second motion to strike is particularly vulnerable to challenge;  these cases include Vaughn v. Freightliner of Hartford, Inc., 49 Conn. L. Rptr. 728 (2010, Shapiro, J.), and Metcoff v. NCT Group, Inc., Superior Court, Judicial District of Waterbury, Docket # X04 CV 04 0184701 (2006, Alander, J.).

Construing earlier versions of rules 10–6 and 10–7, the Appellate Court in Sabino v. Ruffalo, 19 Conn.App. 402 (1989), established that “the court has discretion to allow the filing of pleadings out of order.  Section 6 of the Practice Book supports this view by allowing for the liberal interpretation of the rules where ‘strict adherence to them will work surprise or injustice’ because the very design of the rules is ‘to facilitate business and advance justice’ “;  19 Conn.App. 402, 404.   See also, Chandler v. Chandler, Superior Court, Judicial District of Tolland, Docket # TTD CV 09 6000846S (2012, Sferrazza, J.) [53 Conn. L. Rptr. 621], and Echevarria v. Five Star Supermarkets of New London, Inc., Superior Court, Judicial District of New London, Docket # CV 10 6003675S (2011, Martin, J.).   Similarly, although it should be exercised cautiously, the court has discretion to allow a party to file a second motion to strike.   Murphy v. Cowie, Superior Court, Judicial District of New Haven, Docket # CV 09 5031311S (2011, B.Fischer, J.), and cases cited therein.

Why should that discretion be exercised in defendants' favor here?   As to both aspects of this objection, the court finds it meaningful that no adjudication of the first motion was pursued by either party.   Technically, it remained pending throughout the period of deliberation on the motion to dismiss, and until a few days after oral argument on the instant motion.³  Absent the mere filing of motion # 104, the waiver provisions of 10–7 are inapposite, since the defendants have a right, under 10–6, to file a motion to strike after a court has considered an earlier motion to dismiss.   The court also notes that the plaintiff might have raised the sequencing argument last July, when defendants filed their motion to dismiss.   That motion arrived almost six months after a motion to strike had already been filed and remained unlitigated.   The reasons plaintiff did not then make this objection are unknown to this court;  at oral argument on the instant motion, there was brief allusion to discussions of counsel and out-of-court agreements, but no definitive rendition of any such discussions or agreements.

As to the argument that the second motion to strike amounts to an unpermitted second bite of the apple (see Vaughn, supra ), the fact that the earlier motion had not resulted in any judicial scrutiny distinguishes this case from that and the other authorities plaintiff relies upon.   The absence of a prior ruling on the merits of a motion counts in the balance against precluding a hearing on the substance of the motion on a procedural infirmity.

Finally, and quite simply, the court rejects this particular procedural objection “in the interests of facilitating business and advancing justice.”   It is 2013;  the complaint arises from events that allegedly began in 1998.   This is at least the third civil case involving these same parties.⁴  In addition to the prior civil actions, State v. Edelman, 64 Conn.App. 480 (2001), aff'd, 262 Conn. 392 (2003), is a criminal case involving the same circumstances giving rise to this litigation.   Moreover, “qualified immunity is an immunity from suit ․ that should be resolved ‘at the earliest possible stage in litigation.’  “ Schnabel v. Tyler, 230 Conn. 735, fn. 5 (1994) (citations omitted).   The United States Supreme Court has recently rendered the same directive in even stronger language:  “[b]ecause qualified immunity is ‘an immunity from suit rather than a mere defense to liability ․ it is effectively lost if a case is erroneously permitted to go to trial.’   Indeed, we have made clear that the ‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that ‘insubstantial claims' against government officials [will] be resolved prior to discovery.’   Accordingly, ‘we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’  “ Pearson v. Callahan, 555 U.S. 223, 231–32 (2009) (citations omitted).   If this motion has merit and can bring about a resolution of the issues putting these parties at odds, then a ruling upon it is in the interest of all parties.   The court will, therefore, consider the motion to strike on the merits.

II. Legal Issues Raised by the Motion

A. Purpose of a Motion to Strike

Connecticut is a fact-pleading jurisdiction, and § 10–1 of our Practice Book requires that each pleading contain a plain and concise statement of the material facts on which the pleader relies.  Practice Book § 10–39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted.   Briefly stated, “[a] motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.”  Kumah v. Brown, 307 Conn. 620, 626 (2013).   But a motion to strike may properly be granted “if the complaint alleges mere conclusions of law that are unsupported by the facts alleged”;  Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498 (2003).

Here, plaintiff has brought in state court an action arising under federal law.⁵  In Sullins v. Rodriguez, 281 Conn. 128 (2007), the Supreme Court held that our state courts provide an appropriate forum for such a claim.⁶  That case further holds that analysis of available defenses (in Sullins, the defense of sovereign immunity), must be performed in accordance with federal law.   If immunity exists under federal law, it ought to be an available defense to a federal claim brought in a state court.

Subsequently, in Brooks v. Sweeney, 299 Conn. 196 (2010), the Supreme Court comprehensively sketched out the path a trial court must pursue in ruling on legal issues arising from 1983 claims to which qualified immunity has been raised as a defense.   In accordance with Saucier v. Katz, 533 U.S. 194 (2001), the Brooks case directs that a qualified immunity claim in such a case is to be tested against federal standards.   Since a § 1983 plaintiff must allege facts showing that a state actor violated his or her clearly established constitutional rights, the first question is whether the complaint contains such facts.   If it does not—if, that is, no constitutional right would have been violated were the allegations established—then there is no necessity for further inquiries concerning qualified immunity.   On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established, and this inquiry must be undertaken not as a broad general proposition but in light of the specific context of the case.

B. Count One:  Malicious Prosecution as a Violation of 42 U.S.C. § 1983

It has long been the rule in this state that to succeed in a claim alleging malicious prosecution, a plaintiff must “prove that:  (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff;  (2) the criminal proceedings 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”;  McHale v. W.B.S. Corp., 187 Conn. 444, 446 (1982).   These are “stringent requirements”;  Rioux v. Barry, 283 Conn. 345 (2007);  and each of these elements must be pleaded as well as proven;  Keller v. Beckenstein, 122 Conn.App. 338 (2010), rev'd on other grounds, 305 Conn. 523 (2011).   All four elements are essential to the cause of action, and a claimant unable to prove all four elements must necessarily fail;  Karwowsky v. Fardy, 118 Conn.App. 480, 487 (2009).

In analyzing claims for malicious prosecution brought under § 1983, federal courts look to the law of the state where the arrest occurred, as the federal tort is substantially the same as a claim for malicious prosecution under state law;  “[c]laims for false arrest or malicious prosecution, brought under [section] 1983 to vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are ‘substantially the same’ as claims for false arrest or malicious prosecution under state law.”  Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003).   Conversely, a Connecticut court considering how to enforce federal law in cases brought to its attention, particularly under § 1983, must as to the federal questions involved give great weight to the decisions of the Second Circuit.  Thomas v. City of New Haven, 249 Conn. 385 (1999).

Additionally, the court notes that analysis of claims of malicious prosecution can benefit from a consideration of case law involving vexatious litigation.   These two torts share elements that have been expressed in identical language, save that the former follows a criminal prosecution whereas the latter redresses wrongs on the civil side.  Bernhard–Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63 (2007), aff'd, 286 Conn. 548 (2008).

This court has examined plaintiff's first count carefully in light of these requirements.⁷

1. Are the Allegations Sufficient to Denote “Initiation” or “Procurement”?

The first count contains seventy-eight paragraphs, climaxing with the assertions in number seventy-seven that Christopher Laux and Braxton ⁸ “knowingly and intentionally colluded in conspiracy to maliciously prosecute Edelman” by perpetrating upon the courts certain “massive frauds and hoaxes” including his claims that the Town of Windham had not properly adopted the State Building Code, that the Code does not allow the prosecution of plaintiff in the manner in which that prosecution progressed, that the prosecution was in derogation of administrative law principles, and that plaintiff was not in fact in violation of the statute under which he was charged.   The plaintiff alleges that the local building official (not a party to this action) confronted him on June 22, 1998, as he was installing shingles on the roof of his dwelling (¶ 9).   On June 25, that local non-party official had a “stop work” order served upon plaintiff (¶ 10).   The prosecution formally began on July 7, 1998, when the Connecticut State Police arrested plaintiff (¶ 30).   Prior to the moment of the arrest, the first count contains only seven allusions to defendant Laux or any actions he might have taken:

1) that he is the State Building Inspector (¶ 3);

2) that on June 25, plaintiff had filed with him an administrative appeal of the “stop work” order (¶ 25);

3) that plaintiff filed a second administrative appeal with him on June 27 (¶ 53);

4) that Laux responded to these appeals on July 6 (¶ 51);

5) that “after August 20,” Braxton had “obtained an informal June 8, 1998 letter” from Laux which figured in the criminal trial against plaintiff (¶ 34);

6) that “Laux personally visited Edelman's property before writing the June 8, 1998, letter” (¶ 39);  and that

7) plaintiff appealed Laux's decision on both the June 25 and the June 27 administrative appeals to the Codes and Standards Committee.

Paragraphs 1–42, 47–50, 54–65, 70–71, 74–75, and 78 consist of descriptions of the behavior of persons other than Laux, or plaintiff's claims regarding the meaning of the various statutes and regulations incidental to his prosecution, the history of other actions he has brought, etc.   The remaining allegations against Laux relate to things he did after the arrest, to wit:  he discussed the case with others (¶ 43);  he testified (in the criminal trial) (¶¶ 44–46);  he interpreted the State Building Code (¶¶ 52, 54–55);  and he received and rejected a third administrative appeal from plaintiff on August 4, 2004, from which plaintiff filed yet another appeal with the Codes and Standards Committee (¶¶ 66–69).

Plaintiff also alleges here that the ex-defendant Lonnie Braxton was at all relevant times an Assistant State's Attorney (¶ 4) who participated in the application for a warrant which led to plaintiff's July 7 arrest (¶ 20).   The inescapable inference, therefore, is that the decision to arrest and prosecute plaintiff rested with Braxton.   Prior to the moment of arrest, the complaint alleges no more than that defendant Laux received and responded to two appeals by plaintiff, visited plaintiff's property, and authored a letter not made available to Braxton until after the arrest had occurred.

“To initiate a prosecution, a defendant must do more than report the crime or give testimony.   He must ‘play an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.’   A jury may permissibly find that a defendant initiated a prosecution where he ‘fil[ed] the charges' or ‘prepar[ed an] alleged false confession and forward[ed] it to prosecutors.’  “ Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir.2010).   Plaintiff in that case was a police officer accused but ultimately acquitted of murder, and the decision reports a lengthy list of police misconduct which spurred the prosecution and kept it going in the face of plaintiff's protestations of his innocence.   Under Connecticut law, “[a] person is deemed to have initiated a proceeding if his direction or request, or pressure of any kind by him, was the determining factor in the officer's decision to commence the prosecution ․” Zenik v. O'Brien, 137 Conn. 592, 596 (1951).   Recently our Supreme Court approved the application of this standard in upholding a civil judgment against a woman who had falsely reported sexual abuse of a child by a plaintiff who was subsequently acquitted of that charge;  Bhatia v. Debek, 287 Conn. 397 (2008).   Both the federal and the state cases cited involved clearly false and weighty factual charges made to prosecutors which, it may fairly be said, were the sine qua non of the prosecution—without those false and reprehensible allegations, in other words, no prosecution would have gone forward.

Dozens if not scores of decisions in the Second Circuit and even in the District Court in Connecticut have wrestled with the question of what constitutes wrongful initiation or procurement of a prosecution.   Circumstances very similar to the case at bar are present in Plude v. Adams, No. 3:12CV69 (AWT), (U.S.D.C.Conn., 2013), in which Judge Thompson just months ago dismissed a malicious prosecution count for failure to state a claim.   Plude alleged he is a certified public accountant who was arrested by a local police department on certain fraud charges.   Adams was an investigator in the office of the State Board of Accountancy, the body which regulates public accountants;  other defendants were volunteer members of the Board itself, with oversight responsibility for the work done by the Board's investigative staff.   Plude alleged that Adams investigated a complaint raising the question of fraud, presented the results of her investigation to the SBOA, and informed the SBOA that the information she discovered in the course of her investigation warranted that Plude be charged with violations of the code of professional ethics for CPAs. Plude alleged that Adams misled the SBOA as to the scope and content of her investigation and ignored facts that undermined Adams's conclusion that the plaintiff had committed violations of the code of professional ethics.   He also alleged that Adams made false statements to the SBOA regarding an investigation by the Internal Revenue Service and the Federal Bureau of Investigation, and regarding improprieties and conflicts of interests on the part of the plaintiff in his capacity as a board member of the Naugatuck Savings Bank. In addition, Plude alleged that Adams delayed her investigation to cause him harm and made defamatory statements to the Shelton Police Department, withheld exculpatory evidence and repeatedly contacted an Assistant United States Attorney in an attempt to have Plude prosecuted and convicted on felony charges.

As it must do, the court accepted these allegations as true for the purpose of testing their sufficiency.   Applying well-honed rules for construing pleadings, however, and keeping in sight that the plaintiff must allege more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.”   Judge Thompson concluded that Plude failed to plead facts that could show that Adams was the determining factor in the prosecuting officer's decision to commence the prosecution.   A similar vacuum is at the heart of Edelman's complaint that Laux controlled Braxton's prosecutorial discretion.

The foregoing authorities all centered upon the “initiation” of a prosecution.   The word “procured” must not be overlooked.   A party might sufficiently plead this first element by alleging that a defendant “procured” the prosecution rather than that he “initiated” the same.   Our Appellate Court in Lefebvre v. Zarka, 106 Conn.App. 30 (2008), distinguished those verbs as follows:

Though the terms “procure” and “initiate” are not synonymous, our case law does not elucidate the legal distinction.   The Restatement (Second) of Torts distinguishes between the two terms and states:  “A person who does not himself initiate criminal proceedings may procure their institution in one of two ways:  (1) by inducing a third person, either a private person or a public prosecutor, to initiate them, or (2) by prevailing upon a public official to institute them by filing an information ․ The giving of the information or the making of the accusation, however, does not constitute a procurement of the proceedings that the third person initiates if it is left to the uncontrolled choice of the third person to bring the proceedings or not as he may see fit.”   3 Restatement (Second), Torts § 653, comment (d) (1977).

106 Conn.App. 30, fn. 2.

This court finds in the first count no allegations that defendant Laux did anything improper which may be construed as affecting Braxton's discretion to bring proceedings against plaintiff, or not, as he saw fit.   Our statutory law, Gen.Stat. § 29–252(c), expressly authorizes the State Building Inspector to issue “official interpretations” of the State Building Code, and subsection (d) of the same statute authorizes that official to review decisions of local zoning officials and “issue any order he deems appropriate.”   There is no legislated or common-law prohibition against his “visiting” ⁹ a property or writing a letter detailing his observations at the site if he does so.   Bare allegations that a person “discussed a case with others,” “testified” in a case, “interpreted” a code within his precincts, or “received and rejected” appeals do not even connote wrongdoing, let alone the false or illegal conduct found in the case law to support a conclusion that Laux can be held responsible for initiating or procuring plaintiff's prosecution.

All plaintiff can point to is his assertion in paragraph 77 that “Laux and Braxton ․ colluded in a conspiracy.”   The Second Circuit has held that in a § 1983 case alleging conspiracy, “complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed;  diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.”  Ciambrello v. County of Nassau, 292 F.3d. 307, 325 (2002).   Plaintiff's use of the adverbs “knowingly,” “intentionally,” and “maliciously” are mere appendages to what is essentially an empty charge.   Although primarily dealing with the element of probable cause, our Appellate Court, in Byrne v. Burke, 112 Conn.App. 262 (2009), also affirmed the dismissal of conspiracy charges against defendants whose claims had been upheld by the local probate court, despite a reversal of that court's ruling on appeal.   Absent an allegation with supporting facts that the “conspirators” had engaged in a criminal or unlawful act (emphasis added by the Appellate Court), a civil conspiracy count must fail.

The first count is completely devoid of factual allegations sufficient to show that the first element of the tort of malicious prosecution can be proven, and hence stands vulnerable to the pending motion to strike.

2. Have the Criminal Proceedings Terminated in Plaintiff's Favor?

The complaint gives short shrift to this second prong of the malicious prosecution test, addressing it entirely by paragraph 49's assertion that “The Appellate Court vacated the C.G.S. § 29–263 conviction on July 24, 2001,” and that of paragraph 50 that “[f]ollowing February 18, 2003 Supreme Court remand, the plaintiff obtained an unconditional October 24, 2003 nolle prosequi on the C.G.S. § 29–263 charge.”

Generally speaking, Connecticut cases are subject to the lenient standard that the entry of an unconditional nolle is sufficient to establish that a proceeding terminated in an individual's favor;  Roberts v. Babkiewicz, 582 F.3d 418 (2nd Cir.2009), citing See v. Gosselin, 133 Conn. 158 (1946);  DeLaurentis v. City of New Haven, 220 Conn. 225 (1991).

At this juncture, this court will consider plaintiff's claim that the state entered an unconditional nolle as tantamount to an assertion of a termination in his favor sufficient to protect this element of his cause of action from the motion to strike.

3. Is Sufficient Lack of Probable Cause Alleged?

What the court may not do, however, is to view paragraphs 49 and 50 as establishing a lack of probable cause for plaintiff's July 7, 1998 arrest.   Even serial dismissals of a case by a hierarchy of courts creates no inference of a lack of probable cause;  “[p]robable cause may be present even where a suit lacks merit.   Favorable termination of the suit often establishes lack of merit, yet the plaintiff ․ must separately show lack of probable cause.”   Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 103–04 (2007);  Cadle Co v. D'Addario, 131 Conn.App. 223 (2011).  “This third prong of the malicious prosecution tort is ‘the gravamen of the tort,’ “ and a plaintiff hoping to survive a motion to strike must plead facts sufficient to show that evidence may be adduced to prove a lack of probable cause;  Giannamore v. Shevchuk, 108 Conn.App. 303, 311 (2008).  Giannamore summarizes prior case law on this element as providing that a defendant acting with probable cause has “an absolute protection against an action for malicious prosecution”;  and, “[o]rdinarily, in the absence of exculpatory facts which became known after an arrest, probable cause to arrest is a complete defense to a claim of malicious prosecution.”   Manson v. Narus, No. 3:08–CV–1 JCH, USDC, District of Connecticut (2008, Haight, S.J.).   Additionally, where, as here, one person (Laux) is charged with this tort as a result of a decision to prosecute made by another (Braxton), the Supreme Court has held that pleading and proof of the absence of probable cause is a particularly important bridge linking the actions of the two individuals.  Hartman v. Moore, 547 U.S. 250 (2006).

With respect to commencement of a criminal case, “probable cause broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred ․ The probable cause determination is, simply, an analysis of probabilities”;  State v. Johnson, 286 Conn. 427, 435–6 (2008).   Because “probable cause is a fluid concept ․ not readily, or even usefully, reduced to a neat set of legal rules,” a court weighing the sufficiency of allegations that officers acted without probable cause must, in this federal circuit, look to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”  Zalaski v. City of Hartford, 838 F.Sup.2d 13 (D.Conn.2012).

The court notes that in all of its seventy-eight paragraphs, the first count does not even use the words “probable cause.”   The court has nonetheless parsed plaintiff's litany of charges to see if under other terminology he alleges facts that might permit keeping this action alive so as to allow a trial on the merits.¹⁰  Fairly stated, his complaint merely perseverates in its insistence that the Code was not in effect in the Town of Windham in 1998, or ought not to have been enforced as to him, or that it means something other than what the trial court evidently instructed the jury to apply in his trial upon the charge.   These are legal conclusions, not facts.   The untethered assertions sprinkled here and there that a “massive fraud” has been perpetrated and that “lies” were the vernacular of the defendant and others involved in this case reflect only an interested person's point of view.   If such assertions were deemed to satisfy the probable cause requirement by raising genuine factual claims, that would undoubtedly put every case of malicious prosecution or vexatious litigation beyond the scope of any dispositive pre-trial procedure.

This court has also examined both the Appellate Court and Supreme Court decisions rendered in plaintiff's appeal from his superior court conviction.   While he succeeded in obtaining an Appellate Court reversal on account of a procedural error on the part of the trial court, that is, the failure to individually poll the jurors as the Rules of Practice require;  State v. Edelman, 64 Conn.App. 480 (2001);  that decision concludes with a remand that evaluated legal claims some of which are of the same character as those that he includes in the present complaint.   The decision clearly precludes any possibility of such defenses succeeding on the merits against the charges he faced.   The Supreme Court affirmed the judgment of the Appellate Court in a per curiam decision reported at 262 Conn. 392 (2003).   From a close reading of both decisions it is inescapable that as a matter of law there was probable cause for plaintiff's arrest and prosecution for a violation of the State Building Code. The existence of such specific guidance from our higher courts is a factor which this court may depend upon in evaluating whether a consequent civil suit can survive a motion to strike.  Cadle Co v. D'Addario, supra, at 234 (fn.8).

The court cannot find colorable compliance with the requirement that his complaint adequately pleads a lack of probable cause, and must conclude that this first count is insufficient on this third prong also.

4. Do the Facts Pleaded Allow Proof That Defendant Acted With Malice?

In this area of the law, and particularly when the facts showing lack of probable cause are egregious, it is not uncommon for reviewing courts to conclude that a prosecution in the absence of such cause raises a presumption of malice on the part of the actor charged, and thus a relaxation of the pleading standard on this element.   See, Mulligan v. Rioux, 229 Conn. 716 (1994).   Logically, it should follow that a prosecution based upon probable cause makes the question of malice moot.   As Judge Bryant suggested in Peruta v. City of Hartford, No. 3:09–CV–1946 (VLB), United States District Court for Connecticut, August 24, 2012, “bringing an offender to justice” is a more likely motivation for a diligent officer of the law than any presumption that such an officer acted maliciously.   Plaintiff's complaint alleges no malice other than that which would inhere in “lies” and “massive fraud,” but since there is no factual basis pleaded to allow a conclusion that such behavior existed, there is likewise no basis alleged upon which to prove the mental state necessary to establish this element.

5. Does This Count Allege a Violation of a Constitutional Privilege?

While a plaintiff seeking to sufficiently plead a state action for the tort of malicious prosecution need only satisfactorily plead the four elements as set forth above, a plaintiff seeking relief from the behavior of state officials under § 1983 must plead and prove a fifth element which distinguishes the state claim from that brought under the federal statute.   That fifth element is that claimant also show that the tort resulted in his deprivation of a constitutional right.  Fulton v. Robinson, 289 F.3d 188, 195 (2d.   Cir., 2002).   Fulton sued officers of the Rochester, N.Y., Police Department for malicious prosecution and other wrongs, claiming that his arrest was illegal.   The Second Circuit upheld the dismissal of his § 1983 claim by the trial court because there was probable cause for his arrest, even though he was exonerated on the most serious of the charges brought against him.  Fulton is a core decision from the Second Circuit which has been followed or cited approvingly more than one hundred times since its issuance.   The import of its holding for this case is that unless a litigant is able to fully establish the likelihood of success on the state tort claim, failure of the federal statutory claim is automatic.   Here, as outlined above, Edelman's state tort claim is insufficient, and thus his federal statutory claim is necessarily equally bereft.

C. Count Three:  Selective Prosecution

Plaintiff additionally accuses Laux of “selective prosecution.”   His third count incorporates the seventy-eight paragraphs of the first count ¹¹ and adds:

83:  Instead of allowing Edelman to pay a penalty fee without further consequence, as Town of Windham Resolution Number 766 enables every other Windham Stop Work Order recipient to do, Laux and Braxton conspired to confound Edelman's administrative remedy by singling him out for a C.G.S. 29–263 trial unique in the history of Connecticut while simultaneously ignoring all facts and circumstances exposing an Edelman prosecution as groundless.

Among those seventy-eight incorporated paragraphs, number 42 is uniquely pertinent to this count.   It alleges that “in Windham alone, hundreds of other property owners discontinued work and paid a Windham Resolution Number 766 penalty fee after Stop Work Order receipt, as did Edelman, but unlike Edelman suffered no further consequence.”

“Selective prosecution” is a specter appearing most often as a shield raised against a criminal prosecution, rather than as a sword in a civil case.   The U.S. Supreme Court approved its use in this context, however, in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), which plaintiff understandably (even if fleetingly) ¹² relies upon in his brief.   The Olech plaintiffs claimed that the defending authorities ignored a rule that a property owner grant the town a 15–foot easement to obtain water service, and instead insisted upon their granting it a 33–foot easement instead.   Further, they claimed, the disparate treatment was “irrational,” “wholly arbitrary,” and “actually motivated by ill will resulting from the Olechs' previous filing of an unrelated, successful lawsuit against the Village”;  528 U.S. 562, 563.   In this per curiam decision, the Court recognized that there may be cases in which a “class of one” can be found to exist, its members having been illegally subjected to disparate treatment by state officers.   Justice Breyer, concurring, explained that specific allegations of ill will of the caliber quoted above were essential to avoid “transforming run-of-the-mill zoning cases into cases of constitutional right.”  Id., 564.   Justice Roberts colorfully expanded upon this concern in Engquist v. Oregon Department of Agriculture, 553 U.S. 591, at 603–04 (2008):

Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them.   If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of people that did not get speeding tickets, and a “class of one” that did.   But assuming that it is in the nature of the particular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper government classification.   Such a complaint, rather, challenges the legitimacy of the underlying action itself—the decision to ticket speeders under such circumstances.   Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns.   But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action.   It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized.

Olech has spawned many hundreds of subsequent cases in which courts have sought to identify where the line is that separates meritorious claims from those which amount to mere whining.¹³  One doctrinal dichotomy that has emerged is a bifurcation between the so-called “selective prosecution” cases, on the one hand, and the “class of one” cases, on the other.¹⁴  Succinctly put, in order “․ to state a claim for selective enforcement, a plaintiff must allege facts supporting a conclusion that 1) he was treated differently from other similarly situated comparators, and 2) that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.   A class-of-one claim requires the plaintiff to allege facts showing that the plaintiff has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”  Missere v. Gross, 826 F.Sup.2d 542, 560 (S.D.N.Y.2011) (internal quotation marks and citations omitted).

The Missere opinion derives that distinction from the cases Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2007), and Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55 (2nd Cir.2010), which are the leading Second Circuit cases outlining the pleading requirements for “selective prosecution” and “class of one” cases, respectively.   In the Henrietta case, the theatre owner complained that local police had enforced the criminal statutes in a manner prejudicial to its patrons (with race as a factor, as well), while looking askance at similar circumstances involving the customers of competing businesses.   Plaintiff had “named names” of those let off the hook, but failed to make any material assertions as to how the “names named” were similarly situated, or had comparable regulatory status or history, or exhibited problems similar to those present at plaintiff's establishment.   The court held that the complaint was filled with “sheer conjecture and speculation,” 507 F.3d 778, 791, and thus, lacking specificity, had to fail.   Here, plaintiff includes no specific allegations that any one of the “hundreds” of other Windham residents who he claims have avoided prosecution for building code violations them was in a situation comparable to his own.   A Connecticut analogue to the Henrietta case is Kroll v. Steere, 60 Conn.App. 376 (2000), which found a particular complaint sufficient to plead a claim of selective prosecution where plaintiff had alleged numerous instances of similarly situated neighbors avoiding prosecution, but had done so by specifically identifying those neighbors and the details in which each had violated ordinances.   Plaintiff here has not bothered.   The Kroll court distinguished its ruling from that handed down in Bianco v. Darien, 157 Conn. 548 (1969), wherein, as plaintiff here presents himself, the complaint was of “mere laxity in the administration of the law” which, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law.¹⁵

In the Ruston case, the court dismissed a suit alleging violations of plaintiffs' constitutional rights in a zoning context.   Having been denied the local permit they sought, their complaint alleged, in essence, that “neighbor A” had a property with such and such characteristics, “neighbor B” another, and so on.   This catalogue failed to sustain their pleading burden because it did not sufficiently compare their land to that of others, and more importantly because it did not eliminate proper governmental concerns for the disparity in treatment, nor even the possibility that defendants had simply made a mistake.   All the Rustons had done was to assume impermissible motivations, and this case holds that “class of one” plaintiffs cannot rest upon such an assumption but must plead particulars descriptive of the persons whom they claim received more favorable treatment.   Here, plaintiff fails this test, also.   Although he peppers his complaint with broadsides at the defendants' motives, he indicates in no manner how the people he claims were let off are similar to him in any detail permitting a disinterested observer to conclude that there was no rational basis for his arrest and prosecution, but not theirs.

Plaintiff appears before this court with a set of charges similar to those pleaded by the plaintiff in Brooks v. Sweeney, 299 Conn. 196 (2010).   Brooks sued various officials of the towns of Bloomfield and West Hartford for malicious and selective prosecution in violation of § 1983.   Like Edelman, she had been arrested on account of regulatory lapses, specifically health code issues resulting from leakage of her septic system, and like Edelman, she succeeded in having those charges dropped.   Brooks argued that since she was the only person out of Bloomfield's 20,000–plus residents ever arrested for septic system leakage, she was indisputably a “class of one” plaintiff, and thus had proven the improper motivations of the town officials.   Not so, declared the Court, which held that to succeed on a “class of one” claim, a plaintiff must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves, and “must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy;  and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.”   299 Conn. 196, 220 (citations omitted;  internal quotation marks omitted).¹⁶  This formulation is not fundamentally different from that which the Second Circuit propounded in Ruston.

The foregoing cases establish that it is not enough that one accused of violating the law allege or even prove that the next guy, or the one before him, escaped scot free.   One apprehended pursuant to a “subjective, individualized decision” to prosecute is out of luck and out of court in a subsequent civil action unless he can allege on the basis of factual predicates that some irrational, arbitrary, or personally vindictive animus motivated his selection for prosecution.   The complaint contains no material from which such animus can be discerned, and the third count therefore fails to state a claim upon which relief might be granted.

D. Count Four:  Due Process Violations

Count four accuses all defendants of “deprivation of due process.”   Plaintiff once again incorporates all that has come before, now consisting of eighty-three paragraphs.¹⁷  He completes the articulation of this cause of action by adding:

85. With Schultz statutorily not a party to either the C.G.S. § 29–252(d) Laux appeal or C.G.S. § 29–262(d) licensure petition, they constitute disciplinary rather than quasi-judicial or legislative proceedings.

86. Laux, Shansky, and Harwood concocted shockingly bald pretexts to prevent Edelman from availing himself of administrative protection to fend off the retaliatory, vindictive, and baseless criminal prosecution brought against him.

87. Laux issued numerous C.G.S. § 29–252(c) Official Interpretations designed to frustrate the administration of justice.

88. Braxton refused to let a complete absence of jurisdiction or Edelman wrongdoing dissuade him from bringing Edelman to trial instead of letting Edelman's administrative remedy run its course.

Two observations may be made immediately.   First, as to Shansky and Harwood, the first involvement they are alleged to have had in plaintiff's affairs came, according to paragraph 64 of the complaint, in calendar year 2004.   This is almost six years after his arrest.   Clearly, none of the circumstances of the arrest and prosecution could have had anything to do with these defendants.   To now accuse them of “deprivation of due process” for anything done prior to 2004 is patently irrational.   In analyzing this count as to these two, the court will limit its review of the incorporated paragraphs to those of paragraphs 5, 6, 64, 65, 69, 72, and 73 of the complaint.

Secondly, as to Laux, regurgitation of claims relative to his pre–2004 conduct amounts to plaintiff taking a second stab, under the guise of “deprivation of due process,” at conduct separately challenged in counts one and three as violations of the civil rights statute depriving him of rights guaranteed by the Fourth Amendment.   In Albright v. Oliver, 510 U.S. 266 (1994), the Court held that § 1983 claims arise under the Fourth Amendment, not the Fourteenth.   A § 1983 claim grounded upon due process claims must be dismissed because “[s]ection 1983 ‘is not itself a source of substantive rights,’ but merely provides a method for vindicating federal rights elsewhere conferred' “;  510 U.S. 266, 271.   Under the authority of Albright, the District Court for Connecticut recently dismissed due process claims wrapped around a malicious prosecution action in Clack v. Torre, No. 3:10 CV 1905(JBA) (August 30, 2012;  Arterton, J.), and in Diaz–Bernal v. Myers, 758 F.Sup.2d 106 (D.Conn.2010).   Thus as to Laux, also, the incorporated material is irrelevant to this fourth count except to the extent it alleges additional matters beyond those pleaded in counts one and three.

As best as this court can discern, plaintiff's due process issues as to Shansky and Harwood arise from actions these two took in their capacity as members of the Codes and Standards Committee described in Conn. Gen.Stat. §§ 29–251 et seq.   Paragraphs 5 and 6, respectively, allege they belong to this Committee.   Paragraphs 64 and 65 allege that they “asserted jurisdiction over building official enforcement action [but exonerated Schultz]”;  paragraph 69 alleges they scheduled a hearing on an appeal plaintiff had filed with them “nearly twenty-one months” after filing;  72, that they had previously recused themselves from hearing other appeals;  and 73, that at some moments coinciding with these activities, they were defendants in a federal court suit plaintiff had filed against them.   Laux's post–2004 role in this scenario included (paragraphs 66 and 67) his receipt of and response to the appeal cited in paragraph 69, his own status as a federal court defendant, and his having “issued numerous C.G.S. § 29–252(c) Official Interpretations designed to frustrate the administration of justice.”   From the fact that plaintiff's administrative appeals did not result in outcomes consistent with his expectations, he concludes that these defendants violated his constitutional rights by “concoct[ing] shockingly bald pretexts to prevent Edelman from availing himself of administrative protection to fend off the retaliatory, vindictive, and baseless criminal prosecution brought against him”;  paragraph 86.

The court searched the parties' briefs on this motion for guidance as to how it ought to construe these allegations.   Defendant's brief maintains that the plaintiff's allegations are so unclear and ambiguous as to confound the reader, and amount to little more than appending a “Due Process” violation label to a series of meaningless assertions.   Plaintiff responded by arguing that 1) Shansky and Harwood ought to have recused themselves from participation in the Edelman matters because he had sued them;  2) the processing of his appeal was too slow;  3) the Committee's decision adverse to Edelman indicates that Shansky and Harwood didn't know what they were doing;  and 4) all of the above is irrefutable proof that due process was not afforded him.   While plaintiff tosses cryptic references to a few decisions randomly into the brief, he includes no analysis of how a claim for violation of due process must be pleaded, nor how his allegations satisfy any standard for such a pleading.

Notably, it is not true that a person acting as a judge or a member of an administrative agency is required to step aside merely because he or she has been sued by a litigant appearing in that person's forum.  Practice Book § 1–22, captioned “Disqualification of Judicial Authority,” in subsection (b) expressly provides that a “judicial authority is not automatically disqualified from sitting on a proceeding merely because an attorney or party to the proceeding has filed a lawsuit against [him].”   It appears that at the time complained of, the federal court action had terminated.   Further, plaintiff admits (paragraph 73) that “nearly all of the Codes and Standards Committee were defendants” in that suit.¹⁸  It would be an unreasonable result if a litigant could sue one or more of the people who might sit in judgment of him, causing their automatic disqualification, and then be allowed to argue that his cause should be sustained because no one is left to adjudicate it.   The necessity of having someone left in a position to decide was long ago recognized as a substantial concern in ruling upon questions of recusal or disqualification.  Dacey v. Connecticut Bar Association, 184 Conn. 21 (1981).

Moreover, whatever the propriety of defendants' role in sitting on plaintiff's case, any dereliction on their part does not equate to a constitutional deprivation;  State v. Rizzo, 303 Conn. 71 (2011).  “Judicial disqualification claims rarely raise due process questions;  more typically, they invoke statutes, rules or common law imposing much stricter standards than are required constitutionally ․ [m]ost questions concerning a judge's qualifications to hear a case are not constitutional ones, because the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment establishes a constitutional floor, not a uniform standard”;  303 Conn. 71, 78.   Plaintiff here alleges no pecuniary interest or personal stake in the outcome of the proceedings, nor any other egregious and definable bias on the part of Shansky and Harwood which would compel their disqualification from his case as a matter of constitutional concern.

The remaining aspects of plaintiff's due process claim are tied to no identified constitutional rights and warrant no lengthy discussion.   For this court to find, for instance, that administrative proceedings must end in so many months as a matter of constitutional law would put this court into a freefall of judicial activism.   Two recent U.S. Supreme Court cases make this obvious.   In District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009), the issue was whether a person claiming innocence of a crime has a substantive due process right to the disclosure of DNA evidence which might acquit him.   Without prejudice to whatever other means might enable the prisoner to obtain his desired end (including, potentially, a § 1983 action), the Court expressly declined to expand the concept of substantive due process beyond the territory in which it has traditionally been recognized, such as matters involving family rights or procreative rights.   As the Court had noted previously in Collins v. Harker Heights, 503 U.S. 115 (1992), the “guideposts for responsible decision making in this unchartered area are scarce and open-ended”;  503 U.S. 115, 125.

As to “procedural due process,” the Court in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), severely limited claims based upon it.   That suit was brought by the mother of three deceased children who died at the hands of their father, against the local police for dilatory response to an apparent violation of a family court restraining order.   Theoretically, expeditious enforcement of the restraining order would have protected the children.   The Court denied her claim for lack of any “entitlement” to the goal she sought.   To invoke a right as a matter of constitutional privilege, “a person clearly must have ‘more than an abstract need or desire’ and ‘more than a unilateral expectation of it.’   He must, instead, have a legitimate claim of entitlement to it.   Such entitlements are, of course ․ not created by the Constitution.   Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law”;  545 U.S. 748, 756.   See also, Hunt v. Brennan, Docket No. CV08 4031395, Superior Court, New Haven Judicial District (2011;  Woods, J.) (motion to strike granted as to fourteenth amendment procedural due process count accompanying other counts alleging violations of § 1983).

Plaintiff has identified no entitlement under state law to a resolution of his appeals within any time period alleged in his complaint, and it is axiomatic that his simple failure to prevail on his appeals does not, ipso facto, amount to any violation of his rights under the constitution or from any other source.   The court cannot find one fact in the entirety of the fourth count supporting a claim that these defendants did anything wrongful, let alone that they violated his constitutional rights.   Accordingly, this count, too, should be stricken.

III. Qualified Immunity

Since it is undisputed that Laux, Shansky, and Harwood did what they did while in the service of our state government, the issue of whether they are entitled to defend on the basis of qualified immunity is properly before the court.   It is clear that the complaint fails Saucier 's first test by failing to state a cause of action for a violation of § 1983, and thus resolution of whether qualified immunity otherwise bars this suit is not, strictly speaking, required at this point.   However, the court concludes that it is prudent to explain how plaintiff also fails the second Saucier test, in the event that the court's conclusions as to § 1983 are viewed in a different light by a higher court.

The policy considerations behind the doctrine of qualified immunity are well expressed by the U.S. Supreme Court in the Pearson decision cited above.   In weighing a claim of qualified immunity, the presumption in its favor is “necessarily high, protecting ‘all but the plainly incompetent or those who knowingly violate the law.’  “ Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 122 (2nd Cir.2003), citing Malley v. Briggs, 475 U.S. 335, 341 (1986).  Reichle v. Howards, 132 S.Ct. 2088 (2012), holds that “[q]ualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct ․ courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all ․ To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’  ․ In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’  “ 132 S.Ct. 2088, 2093 (internal citations omitted).   This state's highest court, in the Brooks case, supra, has left no doubt that the protection of state officers from civil liability claims when they have properly exercised their discretion is a concern as valid in the state court system as it is in the federal courts.   Its formulation of the reach of qualified immunity tracks the federal language closely:  a governmental defendant is 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”;  299 Conn. 196, 218.

Plaintiff argues in his brief that his allegations prove that defendant Laux knowingly violated the law;  his premise, apparently, is that the statute in question is either invalid or inapplicable to plaintiff's conduct and thus its invocation by this defendant vitiates any claim to immunity.   As a matter of law, however, this contention cannot be maintained.   There is no authority from any court holding that the state may not prosecute a person engaged as was plaintiff for a violation of § 29–254.   Thus plaintiff's objection to defendants' invocation of qualified immunity fails the first prong of the Brooks test.   This conclusion comports with that reached by the Second Circuit in Fabrikant v. French, 691 F.3d 193 (2012), a § 1983 suit brought against a multitude of defendants by a woman arrested under state animal abuse statutes, and whose animals were seized as part of the state's response.   The court held that since the statutes at issue had not been declared void, the defense of qualified immunity was available as a matter of law to those who had acted under their direction.

Here, the plaintiff also cannot refute that the defendants acted with an objectively reasonable expectation that their actions did not violate clearly established law.  Reichle itself is weighty precedent on this point;  it allowed Secret Service agents assigned to then Vice President Cheney to avoid a § 1983 suit on the basis of qualified immunity after they wrestled to the ground and arrested the case's plaintiff, later determined to have been engaged in innocuous conduct;  the law was, at best, unclear, and that in the opinion of the Court removed from those officers the burden of obtaining an opinion of counsel before acting to uphold the law.   In the Second Circuit, the court reached a similar conclusion in the case of Amore v. Novarro, 624 F.3d 522 (2d Cir.2010), whose plaintiff brought suit under § 1983 for false arrest and other torts against a police officer who had found him “loitering” and charged him with violation of a New York statute making that conduct illegal.   Even before the arrest, the New York courts had declared that enactment unconstitutional as applied to the specific behavior Amore was engaged in, yet the law's provisions as originally stated remained in the statute books.   Amore attempted to refute Novarro's claim of qualified immunity with the argument that using legal process to arrest someone under a statute expressly held unconstitutional was inarguably a violation of his constitutional rights, and for purpose of the argument, the Second Circuit panel agreed.   Still, it upheld a judgment favoring Novarro because New York had not repealed the statute, and it remained in a printed booklet provided to police.   Looking to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act”;  Zalaski, supra.   The Amore court deemed it to have been “objectively reasonable for [Novarro] to believe that his actions did not violate clearly established law” when the state legislature had done nothing to remove the law in question from the statute books.   If Novarro is entitled to immunity on the basis of objectively reasonable belief in the validity of such a statute, then how can Laux, Shansky, or Harwood be deprived of that defense?   Here, not only is it undeniable that § 29–254a has at all relevant times been “on the books” in this state, but there is no authority whatsoever for the proposition that it is inapplicable to the factual situation plaintiff himself describes in his complaint;  to the contrary, the Appellate and Supreme Courts' decisions on his appeal directly dispose of that contention.¹⁹

This memorandum could end at this point, were it not for the fact that recent federal precedent sets forth a second and entirely distinct line of reasoning which independently leads to the conclusion that qualified immunity shelters the defendants here from further need to defend this suit.   This test, which has become a tool routinely used in the federal courts, requires that a complaint set forth a plausible basis for belief that a plaintiff may prove his case on the merits at trial.   This plausibility test was first articulated in Bell Atlantic Corporation v. Twombly, 550 U.S. 554 (2007), involving the sufficiency of a complaint alleging a conspiracy violative of provisions of the Sherman Act, 15 U.S.C. § 1, and in that case focused upon the allegations necessary to make plausible a claim of an illegal agreement which would violate that act.

Subsequently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court applied and substantially expanded upon the reach of this new pleading standard in a case brought under 42 U.S.C. § 1983.   Plaintiff, a Guantanamo detainee, claimed that the former attorney general and others were liable to him under that statute for numerous violations, including torture and prolonged detainment.   The federal defendants asserted that they were entitled to qualified immunity against such claims.  Iqbal speaks to the pleadings required to overcome that defense.   It makes clear that while a complaint may not require “detailed factual allegations,” pleading requirements demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation ․ A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do’ ․ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’  “ 556 U.S. 662, 678.  Iqbal directed trial courts evaluating the sufficiency of pleadings in § 1983 actions to distinguish between the possibility and the plausibility of entitlement to relief.   The Court noted, first, that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.   Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”;  and, that although “for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’   “ Id. (internal quotation marks omitted).   Only a complaint that states a plausible claim for relief survives a motion to dismiss, and “determining whether a complaint states a plausible claim for relief will ․ be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense ․ where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief,” Id., 678–79.

As a preliminary, one might ask how these cases which literally explicate a federal procedural rule are applicable to a state court's consideration of a motion to strike.   A federal motion “to dismiss” under Fed.R.Civ.Proc. 12(b)(6) tests whether a pleading fails to state a claim upon which relief can be granted, and that is the same function of a motion to strike under Connecticut practice.   Our Supreme Court has recognized that a motion to strike is similar in purpose and in practice to the federal dismissal rule;  Delaurentis v. City of New Haven, supra;  and the motion therefore benefits from being considered according to the same standards.   In declaring the primacy of federal law in this realm, the Sullins case, supra, further instructs us that it would be “a bizarre result” if the law “allowed individual state defendants to assert immunity from federal constitutional claims ‘when in another courthouse, a few blocks away, the federal court, being bound by the Second Circuit would not.’  “ 281 Conn. 128, 136.   By the same token, it would be an equally bizarre result if state courts had to allow individual plaintiffs the privilege of avoiding pleading requirements imposed upon their peers a few blocks away in the federal court.   While there appears to be as yet no Connecticut appellate adoption of the plausibility test with respect to motions to strike, each of our courts has hinted that such an outcome is foreseeable.   Citing Iqbal, the Appellate Court in Coleman v. Commissioner of Corrections, 137 Conn.App. 51 (2012), recognized that plausibility is a worthwhile consideration for a court reviewing a hyperbolic and fact-deficient complaint filed by a person alleging a promiscuous violation of his rights.²⁰  Citing Twombly, the Supreme Court has expressly acknowledged the particular pertinence of this pleading requirement to cases filed in courts of this state, given that this is a fact pleading jurisdiction;  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, fn. 7 (2011).

Iqbal informs us that determining whether a complaint states a plausible claim for relief is a context-specific task that requires the court to draw on its judicial experience and common sense.   The context of the instant case begins with a 1998 arrest which led to a conviction, reversed on appeal due to procedural error, alongside a parallel series of administrative appeals brought by plaintiff.   Beyond his assertions that defendants engaged in “conspiracy” and “retaliatory, vindictive, and baseless criminal prosecution,” he sets forth no facts upon which those conclusions could be premised.   Aside from his description of his arrest, prosecution, and administrative experiences, the complaint is full of statutory hermeneutics of highly dubious validity.   Significantly, since common sense is called for, he sets forth no reason whatsoever that would explain why the many defendants joined together to do him the wrongs he claims, nor how they did so, nor what they might have gained from doing so, etc.   His is the classic “the defendant[s] unlawfully harmed me” case, but nothing more, and the purely conclusory nature of his allegations must under the commanding precedent of this recent Supreme Court case “disentitle them to the presumption of truth.”

Whether measured by the Brooks rule or the Iqbal rule, nothing in this complaint suffices to overcome the claim of qualified immunity which defendants have raised.

IV. Conclusions and Orders

In conclusion, this court holds that counts one, three, and four are all legally insufficient to state a claim upon which relief might be granted.

Further, the court holds that the defendants are entitled to qualified immunity as plaintiff has failed to allege any facts, let alone a plausible set of facts, sufficient to deprive them of this defense.

For all the reasons cited above, the motion to strike is granted as to counts one, three, and four.

Boland, J.

ADDENDUM to MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 130)

COMPLAINT ALLEGATIONS AGAINST DEFENDANT CHRISTOPHER LAUX

Paragraph:  Allegations:

3 Christopher Laux held the position of State Building Inspector.

25 [O]n June 25, 1998, Edelman stopped all roofing work and filed a CGS § 29–252(d) administrative appeal with Laux, eventually designated A–18–98.

34 After August 20, 1998, Braxton obtained an informal June 8, 1998 letter from Laux asserting “Section 2308.0 of the BOCA National Building Code/1990 ․ deals with re-roofing ․ A building permit is required for the removal and replacement of less than 25 percent of less of the roof covering.”

39 Laux personally visited Edelman's property before writing the June 8, 1998 letter and SBI files include a detailed July 8, 1984 description of Edelman's property written by Public Safety Building Official and Building Plan Reviewer, David Zwick.

43 Schultz testified on October 14, 1999 that he and Laux discussed the case against Edelman at various times.

44 Laux testified on October 15, 1999 that he had familiarity with the 217 Scotland Road site and the circumstances surrounding Edelman's arrest and prosecution.

45 Laux testified on October 15, 1999 that he had seen the June 1994 Update magazine CABO clarification.

46 Laux testified on October 15, 1999 that the BOCA code, not the CABO code, applied to 217 Scotland Road.

51 In response to the A–18–98 appeal, Laux wrote on July 6, 1998 that “any work that may have been performed between the issuance of the STOP WORK order and the application for the building permit was, in fact, a violation of the State Building Code.”

52 Laux's November 14, 2000 C.G.S. § 29–252(c) Official interpretation I–62–00 says that C.G.S. § 29–263 does not comprise part of the State Building Code.

53 Edelman also filed with Laux a related June 27, 1998 C.G.S. § 29–252(d) administrative appeal, eventually designated A–23–98.

54 In response to the A–23–98 appeal, Laux wrote on October 20, 1998 that “It is my decision that the stop work order was properly served.”

55 Laux issued September 8, 1998 I–14–98 and May 11, 2006 I–6–06 C.G.S. § 29–252(c) Official Interpretations classifying a Stop Work Order as criminal process.

66 Edelman filed an August 4, 2004 C.G.S. § 29–252(d) appeal with Laux, eventually designated A–34–04, about Schulz's misconduct relating to the June 25, 1998 and July 7, 1998 arrests and subsequent trial.

67 A September 1, 2004 Laux A–34–04 decision found no Schultz misconduct.

68 Edelman appealed Laux's September 1, 2004 A–34–04 C.G.S. § 29–252(d) decision to the Codes and Standards Committee on September 6, 2004.

69 On May 11, 2006, the Codes and Standards scheduled an A–34–04 hearing for May 30, 2006, nearly twenty-one months after Edelman filed the appeal.

73 Laux, Shansky, and Harwood, as well as nearly all of the Codes and Standards Committee were defendants in federal court case Edelman v. Braxton, 04–6675–CV, 3:01 CV 1087 DJS before and after the C.G.S. § 29–262(d) licensure petition and CGS § 29–252(d) A–34–04 appeal.

FIRST COUNT Incorporating all the foregoing, plaintiff alleges Malicious Prosecution (First Count) against Laux and Braxton in that:

77 Laux and Braxton knowingly and intentionally colluded in conspiracy to maliciously prosecute Edelman by perpetrating upon the courts the massive frauds and hoaxes that:

a) The SBC was valid law in the Town of Windham despite never having been either adopted by the Town of Windham as required by § V–5 of the Windham Town Charter or lawfully promulgated by the State of Connecticut by the C.G.S. § 29–252(a) July 1, 1993 statutory deadline;

b) Schultz had the authority to file a criminal complaint against Edelman, a role SBC § 117.3 reserves for “legal counsel of the jurisdiction”;

c) Schultz could contravene C.G.S. § 29–260(c) by doing something not specifically authorized by the SBC, namely, soliciting an Edelman prosecution under a purportedly criminal statute;

d) The State could assert the power to prosecute Edelman while simultaneously disregarding the legal restraints that Edelman's SBC § 118.2 immediate cessation of work and A–18–98 and A–23–98 C.G.S. § 29–252(d) administrative appeals imposed on exercising such authority, thereby,

i) Pre-empting the administrative exhaustion doctrine by not letting the Codes and Standards Committee adjudicate the RCSA § 29–2–3(a) “rights between the parties”;

ii) Violating Edelman's First Amendment petitioning and Fourteen Amendment due process rights by subverting Edelman's administrative remedy;

iii) Ignoring the administrative exhaustion doctrine;

iv) Not heeding the presumption of agency expertise and the prohibition against having a court substitute its judgment for that of an agency;  and

v) Creating the absurdity through parallel proceedings that Edelman could prevail administratively one day and get convicted the next;

e) Schultz's promise to abate prosecution in Edelman's June 29, 1998 building permit was of no import;

f) The BOCA portion of the SBC applied to Edelman's 217 Scotland Road single-family dwelling although SBC § R–103 makes clear beyond any doubt that the CABO portion of the SBC constitutes the default building code governing every other single-family dwelling in the State of Connecticut;

g) C.G.S. § 29–263 is a criminal statute, that it comprises part of the SBC, and that C.G.S. § 29–254a penalties apply to it;

h) The necessary SBC § 118.2 condition of valid Stop Work Order service had occurred even though Page had no authority to serve criminal process and the omission of any allegation of a specific SBC violation on the Stop Work Order rendered it invalid;  and

i) Edelman violated the Stop Work Order by continuing work, a patent and readily disprovable lie.

And THIRD COUNT Incorporating all the foregoing plaintiff alleges Selective Prosecution (Third Count) against Laux and Braxton in that:

83 Laux and Braxton conspired to confound Edelman's administrative remedy by singling him out for a C.G.S. § 29–263 trial unique in the history of Connecticut while simultaneously ignoring all facts and circumstances exposing an Edelman prosecution as groundless.

And FOURTH COUNT Incorporating all the foregoing plaintiff alleges Deprivation of Due Process (Fourth Count) against all Defendants in that:

86 Laux, Shansky, and Harwood concocted shockingly bald pretexts to prevent Edelman from availing himself of administrative protection to fend off the retaliatory, vindictive, and baseless criminal prosecution brought against him.

87 Laux issued numerous C.G.S. § 29–252(c) Official Interpretations designed to frustrate the administration of justice.

COMPLAINT ALLEGATIONS AGAINST DEFENDANT MARJORIE SHANSKY

Paragraph:  Allegations:

5 Marjorie Shansky belonged to the Codes and Standards Committee ․ acting under color of law and in the scope of her duties as an agent for the State of Connecticut and the Department of Public Safety.

64 Prompted by Chairman Marjorie Shansky at an April 14, 2004 meeting, Vice Chairman Donald Harwood and the rest of the Codes and Standards Committee asserted jurisdiction over building official enforcement action but decided that Schultz had not undertaken any enforcement action.

65 At the June 9, 2004 meeting, Chairman Marjorie Shansky, Vice Chairman Donald Harwood and the rest of the Codes and Standards Committee voted against an April 27, 2004 Edelman Notice of Error listing Schultz enforcement actions.

69 On May 11, 2006, the Codes and Standards scheduled an A–34–04 hearing for May 30, 2006, nearly twenty-one months after Edelman filed the appeal.

72 Shansky and Harwood, as well as nearly all of the Codes and Standards Committee, had previously recused themselves in A–18–98 and A–23–98.

73 Laux, Shansky, and Harwood, as well as nearly all of the Codes and Standards Committee were defendants in federal court case Edelman v. Braxton, 04–6675–CV, 3:01 CV 1087 DJS before and after the C.G.S. § 29–262(d) licensure petition and C.G.S. § 29–252(d) A–34–04 appeal.

And FOURTH COUNT Incorporating all the foregoing plaintiff alleges Deprivation of Due Process (Fourth Count) against all Defendants in that:

86 Laux, Shansky, and Harwood concocted shockingly bald pretexts to prevent Edelman from availing himself of administrative protection to fend off the retaliatory, vindictive, and baseless criminal prosecution brought against him.

COMPLAINT ALLEGATIONS AGAINST DEFENDANT DONALD HARWOOD

Paragraph:  Allegations:

6 Donald Harwood belonged to the Codes and Standards Committee ․ acting under color of law and in the scope of his duties as an agent for the State of Connecticut and the Department of Public Safety.

64 Prompted by Chairman Marjorie Shansky at an April 14, 2004 meeting, Vice Chairman Donald Harwood and the rest of the Codes and Standards Committee asserted jurisdiction over building official enforcement action but decided that Schultz had not undertaken any enforcement action.

65 At the June 9, 2004 meeting, Chairman Marjorie Shansky, Vice Chairman Donald Harwood and the rest of the Codes and Standards Committee voted against an April 27, 2004 Edelman Notice of Error listing Schultz enforcement actions.

69 On May 11, 2006, the Codes and Standards scheduled an A–34–04 hearing for May 30, 2006, nearly twenty-one months after Edelman filed the appeal.

70 The Codes and Standards Hearing Panel, chaired by Codes and Standards Committee Vice Chairman Donald Harwood, did not respond to important issues raised pre-hearing by Edelman and dismissed the appeal on June 20, 2006 without making any decision on the merits.

71 The Codes and Standard Committee notified the Plaintiff on January 17, 2007 that it had denied a June 26, 2006 Edelman Petition for Reconsideration by virtue of not having made a decision within the statutory time period.

72 Shansky and Harwood, as well as nearly all of the Codes and Standards Committee, had previously recused themselves in A–18–98 and A–23–98.

73 Laux, Shansky, and Harwood, as well as nearly all of the Codes and Standards Committee were defendants in federal court case Edelman v. Braxton, 04–6675–CV, 3:01 CV 1087 DJS before and after the C.G.S. § 29–262(d) licensure petition and C.G.S. § 29–252(d) A–34–04 appeal.

And FOURTH COUNT Incorporating all the foregoing plaintiff alleges Deprivation of Due Process (Fourth Count) against all Defendants in that:

86 Laux, Shansky, and Harwood concocted shockingly bald pretexts to prevent Edelman from availing himself of administrative protection to fend off the retaliatory, vindictive, and baseless criminal prosecution brought against him.

FOOTNOTES

FN1. The complaint names as that other individual a state prosecutor, Lonnie Braxton, also named as a defendant.   Recently the court (Calmar, J.) dismissed the action as to Braxton;  see Memorandum of Decision on Motion to Dismiss, February 13, 2013.   Judge Calmar's decision addressed the issues of sovereign and judicial immunity, not the claim of qualified immunity that is now before this court.   Braxton's departure necessarily moots the second count, which is directed exclusively at his actions..  FN1. The complaint names as that other individual a state prosecutor, Lonnie Braxton, also named as a defendant.   Recently the court (Calmar, J.) dismissed the action as to Braxton;  see Memorandum of Decision on Motion to Dismiss, February 13, 2013.   Judge Calmar's decision addressed the issues of sovereign and judicial immunity, not the claim of qualified immunity that is now before this court.   Braxton's departure necessarily moots the second count, which is directed exclusively at his actions.

FN2. Curiously, given the dispositive significance of this case on the procedural point raised, neither party mentioned it in the portions of their memoranda dealing with this objection..  FN2. Curiously, given the dispositive significance of this case on the procedural point raised, neither party mentioned it in the portions of their memoranda dealing with this objection.

FN3. The court accepts defense counsel's representations made at oral argument that he believed the withdrawal to have been filed on a prior occasion..  FN3. The court accepts defense counsel's representations made at oral argument that he believed the withdrawal to have been filed on a prior occasion.

FN4. Paragraph 73 of the complaint alleges that the three defendants involved here “were defendants in federal court case Edelman v. Braxton, 04–6675–cv, 3:01CV1087 DJS” (sic);  see Edelman v. Braxton, United States District Court, Docket No. 3:01–CV–01087 (DJS) (D.Conn.);   see also, Edelman v. Page, 535 F.Sup.2d 290 (D.Conn.2008).   Paragraph 74 alleges that “[t]he Superior Court dismissed for insufficient service of process a predecessor action for the same cause as described herein.   Edelman v. Page, X07 CV06 5020038S” (sic);  see Edelman v. Page, 123 Conn.App. 233 (2010), cert. denied, 299 Conn. 908 (2010)..  FN4. Paragraph 73 of the complaint alleges that the three defendants involved here “were defendants in federal court case Edelman v. Braxton, 04–6675–cv, 3:01CV1087 DJS” (sic);  see Edelman v. Braxton, United States District Court, Docket No. 3:01–CV–01087 (DJS) (D.Conn.);   see also, Edelman v. Page, 535 F.Sup.2d 290 (D.Conn.2008).   Paragraph 74 alleges that “[t]he Superior Court dismissed for insufficient service of process a predecessor action for the same cause as described herein.   Edelman v. Page, X07 CV06 5020038S” (sic);  see Edelman v. Page, 123 Conn.App. 233 (2010), cert. denied, 299 Conn. 908 (2010).

FN5. Any ambiguity lurking within the language of his complaint is resolved by his assertion, in footnote 20 of his brief on the instant motion, that “Edelman's Complaint raises only federal claims.”.  FN5. Any ambiguity lurking within the language of his complaint is resolved by his assertion, in footnote 20 of his brief on the instant motion, that “Edelman's Complaint raises only federal claims.”

FN6. Forum and sovereign immunity were the dominant issues in Sullins;  the opinion did not specify what a plaintiff is required to plead in order to state a valid claim under the statute.   The court pointed out that “defendant has not filed a motion to strike or otherwise challenged the sufficiency of the complaint,” 281 Conn. 128, 146;  such a challenge is what now faces this court..  FN6. Forum and sovereign immunity were the dominant issues in Sullins;  the opinion did not specify what a plaintiff is required to plead in order to state a valid claim under the statute.   The court pointed out that “defendant has not filed a motion to strike or otherwise challenged the sufficiency of the complaint,” 281 Conn. 128, 146;  such a challenge is what now faces this court.

FN7. Lest any of the pertinent details of the complaint be overlooked, the court has prepared an appendix to this memorandum setting forth in plaintiff's own words all of the various charges against the remaining defendants..  FN7. Lest any of the pertinent details of the complaint be overlooked, the court has prepared an appendix to this memorandum setting forth in plaintiff's own words all of the various charges against the remaining defendants.

FN8. See Note 1..  FN8. See Note 1.

FN9. Paragraph 17 of the complaint asserts that “the Town of Windham ․ possessed written ․ notices from Edelman asserting a right to privacy.”   Be that as it may, the complaint fails to allege that Laux's “visit” in any way violated such a right to the extent it might exist..  FN9. Paragraph 17 of the complaint asserts that “the Town of Windham ․ possessed written ․ notices from Edelman asserting a right to privacy.”   Be that as it may, the complaint fails to allege that Laux's “visit” in any way violated such a right to the extent it might exist.

FN10. Plaintiff filed his complaint on his own behalf, as a pro se litigant, and the court has accorded him the deference usually provided to such persons who might want for full appreciation of legal parlance and procedures.   On the other hand, counsel appeared on his behalf four months after the complaint was filed, and now over one year ago, but has made no effort to amend the complaint..  FN10. Plaintiff filed his complaint on his own behalf, as a pro se litigant, and the court has accorded him the deference usually provided to such persons who might want for full appreciation of legal parlance and procedures.   On the other hand, counsel appeared on his behalf four months after the complaint was filed, and now over one year ago, but has made no effort to amend the complaint.

FN11. Literally, he incorporates the eighty-one paragraphs of the first and second counts.   The second count speaks only to behavior of Assistant State's Attorney Braxton, and has no bearing upon actions of the defendant Laux. Hence the court finds within paragraphs 79, 80, or 81 no matter of significance with respect to the third count..  FN11. Literally, he incorporates the eighty-one paragraphs of the first and second counts.   The second count speaks only to behavior of Assistant State's Attorney Braxton, and has no bearing upon actions of the defendant Laux. Hence the court finds within paragraphs 79, 80, or 81 no matter of significance with respect to the third count.

FN12. Plaintiff cites Olech for its express holding but does not analyze that holding as applied to this case.   His brief in support of this third count is sparse at best.   In fact, his brief in large part is made up of verbatim recitation of the allegations of the complaint as opposed to any reasoned argument how those allegations satisfied plaintiff's obligation to plead a state of facts sufficient to support his causes of action..  FN12. Plaintiff cites Olech for its express holding but does not analyze that holding as applied to this case.   His brief in support of this third count is sparse at best.   In fact, his brief in large part is made up of verbatim recitation of the allegations of the complaint as opposed to any reasoned argument how those allegations satisfied plaintiff's obligation to plead a state of facts sufficient to support his causes of action.

FN13. The difficulty in articulating a single, bright-line test is illustrated in the learned decisions of the Seventh Circuit delivered recently by Judge Posner, for four members of that court, and by Judge Easterbrook, for the court's four members who reached a different conclusion, in Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir.2012)..  FN13. The difficulty in articulating a single, bright-line test is illustrated in the learned decisions of the Seventh Circuit delivered recently by Judge Posner, for four members of that court, and by Judge Easterbrook, for the court's four members who reached a different conclusion, in Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir.2012).

FN14. Cobb v. Pozzi, 363 F.3d 89 (2d.   Cir.2003) is a leading example of a case outlining this dichotomy, and although plaintiff cites the case he does not indicate upon which path he is proceeding, nor does he address the pleading demands set forth for either..  FN14. Cobb v. Pozzi, 363 F.3d 89 (2d.   Cir.2003) is a leading example of a case outlining this dichotomy, and although plaintiff cites the case he does not indicate upon which path he is proceeding, nor does he address the pleading demands set forth for either.

FN15. Kroll, moreover, was published in 2000 and thus precedes the numerous federal authorities cited herein which establish the minimum pleading requirements for cases alleging violations of federal law;  quaere whether Kroll's allegations would not be held to an even higher standard today in light of that evolution in decisional authority..  FN15. Kroll, moreover, was published in 2000 and thus precedes the numerous federal authorities cited herein which establish the minimum pleading requirements for cases alleging violations of federal law;  quaere whether Kroll's allegations would not be held to an even higher standard today in light of that evolution in decisional authority.

FN16. While this ruling came in review of a trial court order granting summary judgment in favor of defendants, and thus focused upon proof, there is no reason why that reasoning should not also be apposite to a court determining what must be pleaded to sustain a complaint in the face of a motion to strike..  FN16. While this ruling came in review of a trial court order granting summary judgment in favor of defendants, and thus focused upon proof, there is no reason why that reasoning should not also be apposite to a court determining what must be pleaded to sustain a complaint in the face of a motion to strike.

FN17. See footnote 11..  FN17. See footnote 11.

FN18. In addition, it appears, they were all defendants in a state court proceeding plaintiff filed;  see Edelman v. Page, 123 Conn.App. 233, fn. 1 (2010)..  FN18. In addition, it appears, they were all defendants in a state court proceeding plaintiff filed;  see Edelman v. Page, 123 Conn.App. 233, fn. 1 (2010).

FN19. One notes with respect to the instant case that in the fifteen years since plaintiff's arrest the Connecticut General Assembly has taken no action to correct § 29–254(a), and thus may be presumed to approve of the judicial interpretations of the statute as applied to plaintiff;  State v. Peeler, 271 Conn. 338, 427–8 (2004)..  FN19. One notes with respect to the instant case that in the fifteen years since plaintiff's arrest the Connecticut General Assembly has taken no action to correct § 29–254(a), and thus may be presumed to approve of the judicial interpretations of the statute as applied to plaintiff;  State v. Peeler, 271 Conn. 338, 427–8 (2004).

FN20. In dictum (fn.2), the court implied that the use of a plausibility analysis is limited to the scrutiny of suits filed by prisoners, but no such limitation has been evident in the federal courts..  FN20. In dictum (fn.2), the court implied that the use of a plausibility analysis is limited to the scrutiny of suits filed by prisoners, but no such limitation has been evident in the federal courts.

Boland, John D., J.