Monserrate VIDRO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Docket No. 12-4268-cv.
United States Court of Appeals, Second Circuit.
Argued: April 8, 2013. Decided: June 21, 2013.
720 F.3d 148
petition that raises both civil rights and habeas claims claim can constitute a strike. See Jennings, 175 F.3d at 779 n. 2 (indicating that such a mixed petition may count as a strike).
Having concluded that the dismissal of a habeas petition challenging the lawfulness or duration of the petitioner‘s criminal confinement cannot count as a strike, our only remaining task is to determine whether the same is true for the dismissal of an appeal in such a habeas proceeding. See Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir.2010) (holding that a plaintiff can incur a separate strike for the dismissal of an appeal “when a complaint and a subsequent appeal are independently dismissed for grounds listed in
Therefore, neither the dismissal of Jones‘s
CONCLUSION
For the foregoing reasons, we reverse the judgment of the district court and order the court to permit Jones to proceed with his civil rights complaint in forma pauperis.
Sandra S. Glover (Alan M. Solоway, on the brief), Assistant United States Attorneys, of counsel to David B. Fein, United States Attorney, District of Connecticut, New Haven, CT, for Defendant-Appellee.
Before: WALKER, CHIN, Circuit Judges, RESTANI,1 Judge.
JOHN M. WALKER, JR., Circuit Judge:
In the October 18, 2012 judgment of the District Court for the District of Connecticut (Underhill, Judge), Monserrate Vidro‘s Federal Tort Claims Act (“FTCA“),
We must address two questions of first impression in this circuit: (1) whether, in FTCA suits, the United Statеs may assert all defenses available to private persons; and (2) whether grand jury witness testimony is absolutely privileged under Connecticut law. Although our analysis is different from that of the district court, we concur with its ultimate conclusion that, if its agents would enjoy immunity from suit under state tort law, the United States may also assert immunity in FTCA actions. Further, because Connecticut would recognize an absolute privilege for grand jury witness testimony, the United States is not vicariously liable under the FTCA for the officers’ statements before the federal grand jury. The district court‘s order of dismissal is affirmed.
BACKGROUND
In his September 6, 2011 federal complaint for the state tort of intentional infliction
On December 6, the government moved to dismiss the complaint on the grounds that it should be construed as a claim for false imprisonment and that it failed to make out such a claim. Vidro opposed the motion, arguing that the complaint properly stated a claim for intentional infliction of emotional distress. The government then filed a supрlemental memorandum noting that the Supreme Court‘s recent decision in Rehberg v. Paulk, — U.S. —, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012), might be relevant insofar as it discussed justifications for grand jury witness immunity. At the district court‘s request, the parties then filed supplemental memoranda addressing the meaning of the FTCA phrase “judicial or legislative immunity.”
On September 26, 2012, the district court granted the government‘s motion to dismiss the complaint on the basis that the United States was immune from suit. After finding
DISCUSSION
We review a district court‘s grant of a motion tо dismiss on the pleadings de novo, accept all factual claims in the complaint as true, and draw all reasonable inferences in the plaintiff‘s favor. Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 107 (2d Cir.2012).
Vidro first argues that
With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is еntitled.
If
Vidro next asserts that Connecticut would not grant grand jury witness testimony absolute immunity. There is no directly relevant state case law, largely because grand juries as commonly understood were abolished in Connecticut by a constitutional amendment that took effect in November 1983. See Connecticut v. Sanabria, 192 Conn. 671, 474 A.2d 760, 774-75 (1984). Vidro also argues that, at the very least, this issue should be certified to the Connecticut Supreme Court.
We nonetheless conclude that, were Connecticut courts to consider the matter, they would find statements made under oath by federal grand jury witnesses to be privileged. Connecticut courts have long held that “[p]artiсipants in a judicial process must be able to testify ... without being hampered by fear of actions seeking damages for statements made ... in the course of the judicial proceeding.” Gallo v. Barile, 284 Conn. 459, 935 A.2d 103, 108 (2007) (quotation marks and alterations omitted). This immunity is based on Connecticut‘s conclusion that “the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” Id. Accordingly, Connecticut courts have long recognized an absolute privilege for witness testimony in judicial or quasi-judicial proceedings, provided that the statements are relevant to the subject of the controversy. See, e.g., id. (applying this protection to claims of intentional infliction of emotional distress); Simms v. Seaman, 308 Conn. 523, 69 A.3d 880, 886-89 (2013) (tracing the historical development of this privilege in Connecticut law).
“Judiciаl proceedings” have been defined to include “any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not.” Craig v. Stafford Constr., Inc., 271 Conn. 78, 856 A.2d 372, 376 (2004) (quotation marks omitted). Although what constitutes a judicial or quasi-judicial prоceeding has not been defined with precision, it has been interpreted broadly. See id. at 376-77 (observing that such proceedings include “lunacy, bankruptcy, or naturalization proceedings, and an election contest [and] extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character” (quotation marks omitted)). If a proceeding is not clearly judicial in nature, the Connecticut Supreme Court has outlined factors relevant to determining whether it is quasi-judicial:
These factors include whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3)
Grand jury proceedings are unquestionably judicial or quasi-judicial in nature, see Abrahams v. Young & Rubicam Inc., 79 F.3d 234, 240 (2d Cir.1996) (describing statements made to a grand jury as statements made in a judicial proceeding), and witness testimony under oath in such proceedings is certainly relevant to the tribunal‘s fact-finding process. Accordingly, we can conclude with confidence that Connecticut courts would extend the state‘s longstanding and well-established protections of statements made in such proceedings to grand jury witness testimony. As “sufficient precedents exist for us to make a determination,” there is no need to certify this question to the Connecticut Supreme Court. Amerex Grp., Inc. v. Lexington Ins. Co., 678 F.3d 193, 200 (2d Cir.2012) (quotation marks and alteration omitted).
Our conclusion is bolsterеd by the fact that the public policy justifications underlying Connecticut‘s absolute immunity defense for statements made in judicial and quasi-judicial proceedings apply to federal grand jury testimony. See Gallo, 935 A.2d at 111 (“Ultimately, ... the issue [in evaluating whether certain statements deserve absolute immunity] is whеther the public interest is advanced.“). As discussed in Rehberg, 132 S.Ct. 1497, there are strong policy justifications for absolute immunity for witness testimony in grand jury proceedings. First, “a witness’ fear of retaliatory litigation may deprive the tribunal of critical evidence.” Id. at 1505. Second, “the possibility of civil liability [is] not needed to deter false testimony ... because other sanctions ... provid[e] a sufficient deterrent.” Id. Additionally, the public‘s interest in preserving grand jury secrecy counsels against anything less than absolute immunity for witness testimony, as the jurors’ identities might be disclosed in the course of discovery in subsequent suits. Id. at 1509.
Based on Gallo, 935 A.2d 103, in whiсh the Connecticut Supreme Court found that witness statements to an investigating police officer received only qualified immunity, Vidro argues that Connecticut courts are restricting the privilege. We disagree. Under Connecticut law, statements with an attenuated connection to judicial proceedings receive only qualified immunity if they do not affect the fact-finding process of a tribunal. See Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337, 1341-42 (1986) (noting that police officers sued for false arrests or “complaining witnesses” who initiate prosecutions are entitled only to qualified immunity). Acсordingly, the Gallo court‘s holding was grounded in its determination that the public policy justifications for granting absolute immunity to statements made in judicial proceedings did not apply with equal force to statements made in the course of a police investigation. 935 A.2d at 111 (“There is no benefit to society or the administration of justice in protecting those who make intentionally false and malicious defamatory statements to the police.“); see also id. at 112-13 (distinguishing Craig, 856 A.2d 372). As described above, however, there are significantly stronger policy reasons for protecting grand jury tеstimony. See Rehberg, 132 S.Ct. at 1507-09 (reasoning that the customary grant of only qualified immunity to “complaining witnesses” is irrelevant in the federal grand jury context).
Furthermore, as evidenced by the Connecticut Supreme Court‘s recent decision in Simms, 69 A.3d 880 (holding that attorneys enjoy absolute immunity from suits for fraud or intentional infliction of emotional distress based on their conduct during judicial proceedings), Connecticut courts show no intention of restricting the privilege‘s traditionally broad scope.
CONCLUSION
For the foregoing reasons, the district court‘s dismissal of Vidro‘s complaint is AFFIRMED.