09-1820-cv

Session v. Rodriguez, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of March, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GERARD E. LYNCH,
9 Circuit Judge,
10 JANE A. RESTANI, *
11 Judge.
12
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14 GARY SESSION,
15
16 Plaintiff-Appellant,
17
18 -v.- 09-1820-cv
19
20 EDWIN RODRIGUEZ, STEPHEN COPPOLA, and
21 THE CITY OF NEW HAVEN,
22
23 Defendants-Appellees.
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25

*
The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.
 1 APPEARING FOR APPELLANT: John A. Pinheiro (Donna L.
2 Alvarez, on the brief), Milford,
3 CT.
4
5 APPEARING FOR APPELLEES Thomas E. Katon, Susman, Duffy &
6 EDWIN RODRIGUEZ AND Segaloff, P.C., New Haven, CT.
7 STEPHEN COPPOLA:
8
9 APPEARING FOR APPELLEE Michael A. Wolak, III, Assistant
10 CITY OF NEW HAVEN: Corporation Counsel, for the
11 Office of Corporation Counsel,
12 New Haven, CT.
13
14
15 Appeal from a judgment of the United States District
16 Court for the District of Connecticut (Thompson, C.J.).
17
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19 AND DECREED that the judgment of the district court be
20 AFFIRMED in part and VACATED in part.
21
22 Plaintiff-appellant Gary Session appeals from the final
23 judgment and several earlier orders entered in the United
24 States District Court for the District of Connecticut
25 (Thompson, C.J.), ultimately granting judgment in favor of
26 defendants-appellees Edwin Rodriguez and Stephen Coppola
27 formerly of the New Haven Department of Police Services, and
28 the City of New Haven. Session sued these defendants for
29 false arrest, false imprisonment, malicious prosecution, and
30 intentional and negligent infliction of emotional distress,
31 alleging primarily that the police improperly influenced a
32 drug-addicted witness to implicate Session in a murder, that
33 the averment of the witness was used to induce a probable
34 cause finding, that he was jailed for eleven months as a
35 result, and that the charges against him were nolled after
36 the witness recanted. We assume the parties’ familiarity
37 with the underlying facts, the procedural history, and the
38 issues presented for review.
39
40 Session appeals, inter alia, the March 27, 2009 order
41 granting Rodriguez’s motion to dismiss for lack of subject
42 matter jurisdiction pursuant to Federal Rule of Civil
43 Procedure 12(b)(1) (“Rule 12(b)(1)”) and the ensuing March
44 30, 2009 final judgment. “In reviewing a district court’s

2
 1 dismissal of a complaint for lack of subject matter
2 jurisdiction, we review factual findings for clear error and
3 legal conclusions de novo.” Morrison v. Nat’l Australia
4 Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal
5 quotation marks omitted).
6
7 The district court concluded that it lacked subject
8 matter jurisdiction by reason of the Rooker-Feldman
9 doctrine. The district court reasoned that, in light of the
10 Connecticut Superior Court’s probable cause determination,
11 Session’s federal suit met Rooker-Feldman’s four
12 requirements. See Exxon Mobil Corp. v. Saudi Basic Indus.
13 Corp., 544 U.S. 280, 284 (2005) (clarifying that the Rooker-
14 Feldman doctrine applies only to “cases brought by state-
15 court losers complaining of injuries caused by state-court
16 judgments rendered before the district court proceedings
17 commenced and inviting district court review and rejection
18 of those judgments”); accord Hoblock v. Albany County Bd. of
19 Elections, 422 F.3d 77, 85 (2d Cir. 2005).
20
21 However, subsequent to the district court’s entry of
22 judgment, this Court made the following clarification:
23
24 The Rooker-Feldman doctrine does not bar a
25 district court from exercising subject-matter
26 jurisdiction over a federal claim where the
27 federal claim complains of injuries caused by an
28 interlocutory state-court order that was
29 effectively reversed by a superseding state-court
30 order, where the federal claim was brought after
31 the state-court proceeding was dismissed, and
32 where any appeal of the interlocutory order would
33 have been moot. In such circumstances, the
34 plaintiff is not a “state-court loser,” and the
35 federal claim does not “invite district court
36 review and rejection” of the interlocutory state-
37 court order.
38
39 Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). The
40 state court probable cause determination was “interlocutory,
41 unappealable, and effectively reversed” in light of the
42 subsequent entry of a nolle prosequi and the later dismissal
43 of all criminal charges against Session. Id. at 103.
44 Moreover, Session did not invite district court review and

3
 1 rejection of the state court probable cause determination;
2 rather, he invited district court scrutiny of the actions
3 allegedly undertaken by Rodriguez in falsely procuring that
4 determination. See Morrison v. City of N.Y., 591 F.3d 109,
5 115 (2d Cir. 2010) (finding “no basis for construing the
6 complaint as an attack on the Family Court’s order, rather
7 than an attack on independent discretionary acts and
8 decisions of the hospital staff that were not compelled by
9 court order,” and therefore concluding that “the suit was
10 not barred by the Rooker-Feldman doctrine”).
11
12 We therefore vacate the district court’s March 27, 2009
13 order granting Rodriguez’s Rule 12(b)(1) motion and the
14 March 30, 2009 final judgment insofar as it dismissed
15 Session’s false arrest and malicious prosecution claims
16 against Rodriguez under the Rooker-Feldman doctrine, and
17 remand for further proceedings consistent with this order.
18 At the same time, however, we find no merit in Session’s
19 remaining arguments.
20
21 The district court did not abuse its discretion in
22 denying Session’s motion pursuant to Federal Rule of Civil
23 Procedure 56(f) as moot in light of Magistrate Judge
24 Martinez’s October 24, 2006 rulings and the district court’s
25 denial of the defendants’ then-pending motions for summary
26 judgment without prejudice to renewal upon certain specified
27 events.
28
29 Following de novo review, we conclude that the district
30 court properly granted partial summary judgment because (i)
31 Session pleads no cause of action other than false arrest,
32 false imprisonment, malicious prosecution, negligent
33 infliction of emotional distress, and intentional infliction
34 of emotional distress; (ii) Session’s unsupported assertions
35 of emotional distress cannot withstand summary judgment to
36 support his claims of negligent infliction of emotional
37 distress and intentional infliction of emotional distress,
38 see Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.
39 1996) (“[M]ere conclusory allegations, speculation or
40 conjecture will not avail a party resisting summary
41 judgment.”); (iii) there is no genuine issue of material
42 fact indicating a municipal policy or custom--under a theory
43 of widespread practice, failure to train, failure to
44 supervise, or any other theory--that could trigger New

4
 1 Haven’s liability under Monell v. Department of Social
2 Services, 436 U.S. 658 (1978); and (iv) there is no genuine
3 issue of material fact indicating the involvement of Coppola
4 in the alleged coercion of Mayra Mercado’s statement or
5 testimony. Accordingly, the district court properly granted
6 partial summary judgment, leaving only Session’s false
7 arrest and malicious prosecution claims against Rodriguez.
8
9 In light of this order’s vacatur and remand, we need
10 not reach Session’s motion pursuant to Federal Rule of Civil
11 Procedure 60(b) (“Rule 60(b)”) with respect to Session’s
12 false arrest and malicious prosecution claims against
13 Rodriguez. On remand, Session will be able to use any
14 newly-discovered evidence in opposing Rodriguez’s further
15 motions for summary judgment or at trial. The district
16 court did not abuse its discretion in denying Session’s Rule
17 60(b) motion with respect to Session’s other claims.
18 Session failed to explain (i) how any of the allegedly
19 withheld evidence probably would have altered the outcome of
20 the proceedings in the district court, see United States v.
21 Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001);
22 (ii) how any of the defendants’ conduct precluded him from
23 fully and fairly presenting his case, see State Street Bank
24 & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158,
25 176 (2d Cir. 2004); or (iii) how Session’s prior attorney’s
26 conduct or how Session’s discovery difficulties constitute
27 exceptional circumstances, see Teamsters, 247 F.3d at 391
28 (“A motion for relief from judgment is generally not favored
29 and is properly granted only upon a showing of exceptional
30 circumstances.”).
31
32 We therefore AFFIRM the other orders appealed from and
33 the remainder of the March 30, 2009 final judgment. We
34 VACATE and REMAND for further proceedings consistent with
35 this opinion regarding Session’s false arrest and malicious
36 prosecution claims against Rodriguez.
37
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41
42