Opinion
No. CV08 5012985
January 25, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendants, City of Stamford, Brent Larrabee, Joseph Kennedy, Robert Snyder, Jennifer Lynch, Sean Scanlon, Michael Longo, Nicole Petrenko and Mark Sinise have filed a motion for summary judgment. The defendants claim they are not liable for the plaintiff's claim of false arrest because they had probable cause or arguable probable cause for the arrest of the plaintiff. The defendants deny they used excessive force or maliciously prosecuted the plaintiff. The defendants also claim that because they had probable cause for the arrest of the plaintiff and did not use excessive force, they, therefore, have federal qualified immunity and state governmental immunity or their discretionary actions in making the arrest.
Defendant Larrabee is the Stamford Chief of Police. The remaining individual defendants are Stamford Police Officers.
I Procedural Background
The plaintiff has sued the City of Stamford, the Chief of Police and seven police officers for his arrest for interfering with a police officer, General Statutes § 53a-167a. Section 53a-167a reads as follows:
(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer's, special policeman's or firefighter's duties.
(b) Interfering with an officer is a class A misdemeanor.
The plaintiff's amended complaint contains eighteen counts. The First Count against Chief Larrabee alleges negligence in that Larrabee basically failed to "adopt, promulgate and/or enforce rules, guidelines, polices, procedures, practices and/or customs regarding arrest and other procedures." The Second Count is filed against Stamford for indemnity pursuant to General Statutes §§ 7-465 and 52-557n. The First Count, as well as, all other counts against individual police officers sound primarily in state law, but also include claims under federal constitutional provisions. The Third Count against Kennedy, a police sergeant, alleges negligence and contains claims similar to those alleged in the previous count against Larrabee. The Fourth Count against Stamford alleges indemnity as to the acts of Kennedy. The Fifth, Seventh, Ninth, Eleventh, Thirteenth and Fifteenth Counts allege negligence against the remaining individual police officers. Counts Four, Six, Eight, Ten, Twelve and Fourteen claim indemnity against Stamford regarding each of the police officers. The Seventeenth Count is filed as to all defendants, alleging malicious prosecution. The Eighteenth Count alleges intentional infliction of emotional distress. A criminal jury trial was held on August 5, 2008 and August 6, 2008 regarding the charge of Interfering with a Police Officer. The plaintiff was found not guilty and acquitted.
It was after the plaintiff's acquittal when the amended complaint was filed adding the count alleging malicious prosecution.
The defendants have submitted numerous exhibits in support of the motion for summary judgment and a memorandum of law. The plaintiff in opposition to the motion has submitted his memorandum of law.
II Standard of Law
Initially, the court sets forth the standard of review regarding a motion for summary judgment. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view he evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374,381,713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 56, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 67, 372, 949 A.2d 1084 (2008); Karwowsky v. Fardy, 118 Conn.App. 480, 484 (2009).
"[A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) Karwowsky v. Fardy, supra 118 Conn.App. 485, quoting, Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008).
III Factual Background
At all times relevant to this incident, the defendant Sergeant Kennedy was a supervisor of The Youth Bureau at the Stamford Police Department and headed the Stamford Internet Crimes Against Children Task Force. After several days of Internet conversations with a suspected male predator, who was using the internet name of "STAT 22222," Kennedy instituted an undercover sting operation. During these internet conversations, Officer Nicole Petrenko posed as a fourteen-year-old female. Petrenko agreed to meet the alleged predator at a picnic table at Smokey Joe's Café, located on Route 1 near the Stamford and Darien town lines between 2:00 p.m. and 3:00 p.m. on November 1, 2006. The area is somewhat isolated from normal traffic and the café was not scheduled to open for business until 3:00 p.m. Petrenko was to sit at the picnic table wearing a sweatshirt bearing the name of the "Dave Mathews Band." The alleged pedophile was to arrive at that location in a red Chevrolet Blazer vehicle. Petrenko had a photograph of the alleged pedophile, which the suspect had sent her, but the defendants claim it is common for individuals to post false photos of themselves on the internet, and, therefore, the photo was considered unreliable.
At approximately 2:30 p.m. on November 11, 2008, the plaintiff arrived at the area near the café on foot. Defendant Kennedy and ten additional police officers were hidden in the vicinity, maintaining visual contact and communicating through various radios or walkie-talkies, some of which were malfunctioning. The officers and Kennedy were dressed in plain clothes. By way of a pre-arranged signal, Petrenko was to remove her backpack if she felt the "suspect" was to be arrested or if she felt she was in danger.
As the plaintiff approached the café, he stopped and began to talk to Petrenko. At this time Petrenko's hidden radio transmitter was working intermittently. Despite not being able to positively identify the plaintiff as the suspected pedophile, Petrenko eventually removed her backpack, signaling the other officers that she needed assistance. Kennedy then ordered his officers to proceed to arrest the plaintiff, whom they later learned was Faubel. Defendant officers Lynch and Snyder were the first to reach the plaintiff's location. They claim that they identified themselves as "police" and ordered the plaintiff to "get down on the ground." They claim that after multiple requests, the plaintiff failed to obey their commands. They, then, grabbed the plaintiff and a struggle ensued. The defendant officers claim that the plaintiff continued to physically resist their efforts to place handcuffs on him. During the course of the struggle, the defendant Lynch, a female, who was smaller physically than the plaintiff, struck the plaintiff in the face with a closed fist. Additional officers were then required to subdue and handcuff the plaintiff.
The plaintiff Faubel was 51 years old. The suspected predator was thought to be 37 years old.
The plaintiff claims that after Petrenko dropped her backpack, signaling the other officers to assist her, he heard footsteps behind him with a voice telling him to get down. He was then tackled from behind and was struck several times by defendant police officers. He claims he was screaming for help. The bartender from the café became aware of the disturbance outside the café and noticed three individuals engaged in a physical altercation with the plaintiff. The bartender, thinking the plaintiff was in danger, attempted to assist the plaintiff and, in turn, was pushed and struck by defendant Scanlan and/or defendant Longo. At least one officer pulled out a gun and told the bartender they were Stamford Police. Prior to that moment, the plaintiff claims that none of the officers had identified themselves as police, nor were their badges visible. The defendants claim they had their badges clearly visible and audibly identified themselves as police officers. Faubel was offered medical assistance by the defendants, but refused the same.
The plaintiff was then transported to the police department and charged with interfering with police officer, General Statutes § 53a-167a. With the plaintiff's permission, the police visited his home and conducted a further investigation. The investigation revealed that the two computers in the home where Faubel resided had no internet capabilities. No further charges were lodged against the plaintiff, and he was released on a promise to appear, being charged only with interfering with police officer.
A jury trial commenced on August 5, 2008 before the court (Malone, J.). Kennedy testified regarding his training and experience and his investigation of crimes by internet predators who target children. He discussed the plans for the sting operation which was to take place outside Smokey Joe's Café. He confirmed that Petrenko's signal for assistance from other officers was the removal of her backpack. When she removed the backpack, he ordered other officers to assist her. He testified that the officers were in plain clothes and had their police badges in clear view. He viewed Faubel struggling with the police who were attempting to subdue him. He testified that the plaintiff had an injury to his shoulder, but the plaintiff refused medical assistance, After interviewing Faubel at the police station, Kennedy decided not to arrest Faubel for any additional charges other than interfering with a police officer.
Defendant Petrenko testified that because the plaintiff was standing extremely close to her she became uncomfortable and moved away. The plaintiff moved in tandem with her until her back was against a fence. Feeling trapped, she decided to signal the other officers for assistance by dropping her backpack in accordance with the pre-arranged signal. She observed the plaintiff struggling with the other officers and saw defendant Lynch punch the plaintiff in the face.
Lynch testified that she was a back-up officer. She saw the plaintiff approach Petrenko and saw Petrenko drop her backpack. She and defendant Snyder identified themselves as police as they approached the plaintiff. As they attempted to handcuff the plaintiff, the plaintiff struggled with them. Lynch stated she was forced to punch the plaintiff to subdue him. Eventually with the assistance of officers Longo and Snyder, the plaintiff was handcuffed. Officer Snyder's testimony was similar to that of Lynch and Petrenko.
Defendant Longo testified that the plaintiff told him that the plaintiff was going to the café to get a drink when he noticed a young lady (Petrenko) sitting on a bench. He began talking to her about the "Dave Matthews Band" when he was told to get on the ground. The plaintiff stated that he didn't know they were police and didn't hear anyone identify themselves as such. The plaintiff remarked that he thought he was being attacked by a jealous boyfriend. The plaintiff signed a consent order for a search of his home in order to clear himself of any suspicion or charges of being the internet predator who was the original target of the sting operation. Officer Senise, the police department's computer expert, checked two computers at the home of the plaintiff's parents. The result of this computer analysis was that neither computer was hooked up to the internet or had internet capability. The plaintiff was not arrested for any additional charges.
Defendant Scanlon did not testify at the criminal trial, but his police report reveals he was with defendant Longo in a pick-up truck. While he did not hear the command to move in on the plaintiff due to a radio malfunction, he moved to a closer location and saw Snyder and Lynch fighting with the plaintiff. As Longo and Scanlon exited their truck, they heard Snyder yell, "police" and "get on the ground." Scanlon heard Longo yell, "police stop, police stop." Scanlon saw the bartender exit the café and grab officer Snyder. With Longo's assistance, Scanlon pulled the bartender off of Snyder, and they pushed the bartender against the wall of the building. Scanlon, in an attempt to control the bartender, struck the bartender in the stomach with a closed fist. When the bartender still resisted, Scanlon drew his gun. When the bartender got on the ground, he was handcuffed by Kennedy and Scanlon holstered his weapon.
The bartender was not charged with any criminal offense.
At his criminal trial, the plaintiff testified he did not resist arrest. He claims he was struck five or six times and suffered a severe injury to his left shoulder. He admitted that he refused medical attention offered to him by the defendant Kennedy on at least three occasions, preferring, instead, to go home. The following day he went to the Stamford Hospital Emergency Room complaining of a left shoulder dislocation. The x-rays were negative and the physical exam conducted at the hospital revealed no signs of facial swelling. He did have a decreased range of motion in his left shoulder. The plaintiff received treatment for bursitis until tests in February 2007 showed a large rotator cuff tear. The rotator cuff tear was surgically repaired in June 2007. The plaintiff moved for a judgment of acquittal at trial, which was denied by the court on August 6, 2008. Subsequently, the plaintiff was found not guilty by way of the jury verdict later that same day.
IV Discussion A. Probable Cause
The plaintiff claims that he was falsely arrested, assaulted and subjected to excessive and unreasonable force by the members of the Stamford Police Department in violation of the Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983. "False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another." Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982).
The Fourth Amendment "guarantees citizens the right `to be secure in their persons against unreasonable . . . seizures' of the person." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The federal law set forth in 42 U.S.C. § 1983 reads in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."
Whether or not the plaintiff was falsely arrested and maliciously prosecuted hinges on the question of probable cause. The issue of probable cause presents a question of law that must be determined by the court. Falls Church Group, Ltd v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007); Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960) ("[w]hether particular facts constitute probable cause is a question of law").
"A warrantless arrest without probable cause violates the Fourth Amendment and forms a basis for a 1983 claim." Ortega v. Christian, CT Page 3643 85 F.3d 1521, 1525 (11th Cir. 1996). However, "[t]he existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Weavant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007). Additionally, a lack of probable cause is essential to a malicious prosecution action. To establish the tort of malicious prosecution, a plaintiff must prove: "(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. If a plaintiff is unable to prove any element, his claim, necessarily, fails." Karwowsky v. Fardy, supra, 118 Conn.App. 486. "Our Supreme Court has described these elements of the tort as the stringent requirements . . ." Giannamore v. Shevchuk, 108 Conn.App. 303, 310-11, 947 A.2d 1012 (2008); see also, Gallo v. Barile, 284 Conn. 459, 475, 935 A.2d 103 (2007); 52 Am.Jur.2d 143, supra, § 5 ("Actions for malicious prosecution are not favored by the courts. Thus, a malicious prosecution action is subject to limitations that are more stringent than those surrounding other kinds of actions, and recovery is allowed only if the requirements have been fully complied with").
The first two elements of a malicious prosecution have been met for the purposes of this motion. The focus of the court's inquiry, thus, is the third element of malicious prosecution; that is, whether the defendant acted without probable cause because the fourth element, which is malice, can be inferred from a lack of probable cause. Falls Church Group, Ltd v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94. "If the evidence supports a finding of a lack of probable cause, then the fact finder reasonably may conclude that the defendant acted with malice. Giannamore v. Shevchuk, supra, 108 Conn.App. 318-19; Mulligan v. Rioux, 229 Conn. 716, 746, 643 A.2d 1226 (1994). "In a malicious prosecution action, the defendant is said to have acted with malice if he [or she] acted primarily for an improper purpose; that is, for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based . . ." (Citation omitted; internal quotation marks omitted.) Id. at 732; see also 3 Restatement (Second), Torts, Malicious Prosecution § 668, p. 438 (1977).
"Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable grounds for prosecuting an action . . . Mere conjecture or suspicion is insufficient . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable . . . Although want of probable cause is negative in character, the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding." Giannamore v. Shevchuk, supra, 108 Conn.App. 311. "The existence of probable cause is an absolute protection against an action for malicious prosecution . . ." (Internal quotation marks omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); Hebrew Home Hospital v. Brewer, 92 Conn.App. 762, 767, 886 A.2d 1248 (2005).
"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 . . . [I]t is axiomatic that [a] significantly lower quant[um] of proof is required to establish probable cause [rather] than guilt . . . [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens' . . . demands . . . In making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts." (Citations omitted; internal quotation marks omitted.) State v. Kaminski, 106 Conn.App. 114, 127, 940 A.2d 844; State v. Batts, 281 Conn. 682, 700-01, 916 A.2d 788, cert. denied, U.S., 128 S.Ct. 667, 169 L.Ed.2d 524 (2007). The existence of probable cause must be determined on the basis of the "totality of the circumstances." State v. Barton, 219 Conn. 529, 594, 594 A.2d 917 (1991). "Probable cause is the knowledge of facts sufficient to justify a reasonable person's beliefs that there are grounds to make an arrest." Beinhorn v. Saraceno, 23 Conn.App. 487, 492, 582 A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991).
The court has reviewed the extensive materials submitted by the parties and finds that the facts leading to the plaintiff's arrest contain a sufficient basis for a determination that probable cause existed for the detention and arrest of the plaintiff. After two days of conversations with the suspect predator, the defendant police officers carefully set up a sting operation in a relatively remote location. The undercover officer, defendant Petrenko, arranged to meet with the internet predator. She informed the predator that she would be identifiable by her "Dave Matthews Band" sweatshirt. At close to the pre-arranged time and location, the plaintiff arrived and approached Petrenko who was sitting alone at a picnic table. He then stood in close proximity and began a conversation with her regarding the "Dave Mathews Band." Based on his close physical proximity to Petrenko and his interest in the "Dave Matthews Band," Petrenko viewed the plaintiff's actions as suspicious and determined he was the targeted internet predator. She then used the pre-arranged signal for assistance. While the plaintiff claims he struggled because he didn't realize the defendants were police officers, he does not deny he struggled. The court must view what occurred from the police officers' perspective. Despite the fact that the plaintiff did not resemble the photo Petrenko had, there were sufficient reasonable grounds to believe that the plaintiff was the targeted suspect.
The fact that the plaintiff was found not guilty of interfering with an officer, General Statutes § 53a-167a, is not dispositive of the question of whether the defendants had probable cause to arrest him. The question of the plaintiff's intent is not at issue. What is at issue is what was in the minds of the defendant police officers. Crocco v. Advance Stores, 421 F.Sup.2d 485 (D.Conn. 2006); accord, Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). "Probable cause is the knowledge of facts sufficient to justify a reasonable person's beliefs that there are grounds to make an arrest." Beinhorn v. Saraceno, supra, 23 Conn.App. 492. Additionally, mistaken identity in and of itself does not negate a finding of probable cause for an arrest. "When the police have probable cause to arrest one party and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest." Hill v. California, 401 U.S. 797, 802, 91 S.Ct. 1106 (1971). "A policeman's mistaken belief of fact can properly contribute to a probable cause determination and can count just as much as a correct belief as long as the mistaken belief was reasonable in light of all of the circumstances." United States v. Gonzalez, 969 F.2d 999, 1006 (11th Cir. 1992); Stone v. Town of Westport, 411 F.Sup.2d 77 (D.Conn. 2006). Based on the totality of the circumstances that existed at the time and on the date of the subject incident, the police had probable cause to approach and arrest the plaintiff Faubel. As the underlying probable cause existed for an arrest as the internet predator, probable cause to arrest him for interfering with that arrest also existed. "[P]robable cause does not require an officer to be certain that subsequent prosecution of the arrestee will be successful." Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989). "[T]he quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction . . ." United States v. Fisher, 702 F.2d 373, 375 (2d Cir. 1983).
B. Excessive Force CT Page 3646
"[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard . . . Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it . . . Because [t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application . . . however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." (Citations omitted; internal quotation marks omitted.) Weyel v. Catania, 52 Conn.App. 292, 296-97, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999). "In order to determine whether the amount of force used by a police officer was proper, a court must ask whether a reasonable officer would believe that this level of force is necessary in the situation at hand." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871 (1989). "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." (Citations omitted; internal quotation marks omitted.) Id. at 396-97.
The court has already determined that the defendants had probable cause for the arrest and detention of the plaintiff. For reasons already discussed, herein, a physical struggle ensued between the plaintiff and the police officers, as well as, the bartender, who was assisting the plaintiff and the police officers. The plaintiff admits he resisted, as he thought he was being attacked by a jealous boyfriend, not police officers. A chaotic few moments ensued. It is acknowledged by all parties that in the course of the physical altercation the plaintiff was struck by one or more officers who were attempting to restrain him. The plaintiff repeatedly refused medical attention offered by the defendants, despite complaining that his shoulder hurt. The plaintiff, thereafter, treated for bursitis, and at a subsequent date, then was diagnosed with a rotator cuff tear, which was then repaired. The plaintiff alleges his injuries were proximately caused by the defendants' actions on the date of his arrest.
Again, the court must focus on the police officers' perception of what was occurring and whether their actions were reasonable in light of what they perceived. The focus cannot be on the plaintiff's state of mind and his perception of what was occurring. It was reasonable for the officers to believe that Petrenko had determined that the plaintiff was the targeted suspect. It was reasonable for Petrenko to feel uncomfortable in the plaintiff's presence, which caused her to signal for assistance. When the assisting officers arrived and the plaintiff struggled with them, it was reasonable for the police to use a measure of force to restrain and secure him. This is especially true, when at the same time the police were struggling with the bartender who joined the melee with the mistaken belief he was assisting the plaintiff from being accosted by a group of people. Faubel allegedly hurt his shoulder when his arm was grabbed by the police who were pushing him to the ground and attempting to handcuff him. Faubel refused medical attention at the scene. He visited the hospital emergency room the next day and was released without any finding of significant injuries.
"Whether [an officer] is acting in the performance of his duty . . . must be determined in the light of that purpose and duty. If he is acting under a good faith belief that he is carrying out that duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties . . ." State v. Privitera, 1 Conn.App. 709, 722, 476 A.2d 605 (1984). The police in this matter were acting in performance of their official duties as police officers. The police were not on a personal frolic. Id. They were doing appropriate police business. The force used to subdue and handcuff the plaintiff was commensurate with the situation the defendant officers found themselves in. They were attempting to arrest a suspected internet predator. This was not a simple traffic stop. The force used was necessary and not excessive.
C. Qualified Immunity
"The defense of qualified immunity shields government officials from civil liability if the official's conduct did not violate constitutional rights that were clearly established at the pertinent time or if it was objectively reasonable for the official to believe that the conduct did not violate such rights . . . State courts follow federal precedent in interpreting the doctrine of qualified immunity . . . As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights . . ." Weyel v. Catania, supra, 52 Conn.App. 296-97; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,73 L.Ed.2d 396 (1982).
"Police officers are entitled to qualified immunity from civil actions arising from § 1983 claims for discretionary actions." Ham v. Greene, 248 Conn. 508, 519-20, 729 A.2d 740 (1999). "State courts follow federal precedent in interpreting the doctrine of qualified immunity." (Citations omitted.) Outlaw v. City of Meriden, 43 Conn.App. 387, 395, 682 A.2d 1112 (1996). "The Supreme Court has expressly encouraged the use of summary judgment when qualified immunity is raised as a defense. The objective reasonableness test was designed to facilitate this summary device as a means quickly to extricate government officials from defending insubstantial suits." Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 1992). "As a matter of public policy, the qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law." (Internal quotation marks omitted.) Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
The court has found that the defendant officers had probable cause to make an arrest of the plaintiff. Even if one were to disagree that probable cause existed, the defendants would be entitled to qualified immunity if "arguable probable cause" exists. Stone v. Westport, 411 F.2d 77 (D.Conn. 2006). "In an unlawful arrest action, an officer is immune if he has arguable probable cause, and is subject to suit only if his judgment was so flawed that no reasonable officer would have made a similar choice . . . Arguable probable cause is all that is required because (t)he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." (Internal citations omitted; internal quotations omitted) Williams v. City of New York, 02 Civ. 3693 (CBM) United States District Court, (S.D.N.Y. 2003). Thus, even if probable cause to arrest did not exist, the defendant officers would still be entitled to qualified immunity if they established that there was "arguable probable cause" to arrest. Escalera v. Lunn, 354 F.3d 198 (2d Cir. 2004).
"Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause . . . and in those situations courts will not hold that they have violated the Constitution." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151 (2001). Therefore, "in situations where an officer may have reasonably but mistakenly concluded that probable cause existed, the officer is nonetheless entitled to qualified immunity." "Arguable probable cause exists `if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met . . . [T]he analytically distinct test for qualified immunity is more favorable to the officers than the one for probable cause; "arguable probable cause" will suffice to confer qualified immunity for the arrest." Escalera v. Lunn, supra; See also Boyd v. New York, 336 F.3d 72, 76 (2d Cir. 2003); Szekeres v. Schaeffer, 3:01 cv 2099 (MRK); 3:01 cv 2108 (MRK) United States District Court, (D.Conn. 2004). "If police officers of reasonable competence could disagree as to whether there was probable cause, there is `arguable probable cause' sufficient to warrant qualified immunity for the defendant officers." For the reasons already given, the defendant officers are entitled to qualified immunity from suit on plaintiffs' claims for false arrest and malicious prosecution.
Qualified immunity is also available to the defendant officers for the claims of excessive force. Finnegan v. Fountain, 915 F.2d 817, 822-23 (2d. Cir. 1990). The test is whether a reasonable officer could have believed that the use of force was objectively reasonable in light of the circumstances that prevailed on the date in question. Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995). In the present matter the defendant officers could have reasonably believed that the use of limited force was proper and not constitutionally excessive.
Again, it is noted that the plaintiff refused medical attention at the scene.
D. Intentional Infliction of Emotional Distress
In the Eighteenth Count the plaintiff alleges a cause of action for intentional infliction of emotional distress. To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements: "(1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). The plaintiff has alleged the first three elements, but has not alleged that the emotional distress sustained by the plaintiff was severe.
In pleading Count Eighteen, the plaintiff has incorporated 133 paragraphs of previous counts as paragraphs 1 through 133 of the Eighteenth Count. In preceding counts, the plaintiff has alleged that he "has and/or may continue to suffer great physical, mental and emotional pain and anguish and has been and/or may be sick, sore and disabled for a long period of time." While he has alleged "medical care and treatment," he does not specifically allege treatment for emotional or mental distress.
"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause; and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort." (Internal quotation marks omitted.) Id., 569. "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).
Regarding allegations of extreme and outrageous behavior, there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to prevail. The court looks to the specific facts and circumstances of each case in making its decision. Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999). "Liability has been found only where the conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim "Outrageous!" . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form a basis for an action based upon intentional infliction of emotional distress." Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991).
A review of the materials submitted by the parties leads the court to conclude that there is nothing in the conduct of the defendants, as alleged in the complaint, that can be regarded as "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id. Striking or pushing the plaintiff during the course of the subject arrest, given the circumstances that prevailed on that date, does not qualify as extreme and outrageous conduct as a matter of law.
E. Municipal Liability
"Connecticut law provides that municipalities must indemnify employees when they are found liable for an infringement of civil rights or physical damage to a person, provided that the employee was acting in the performance of his duties and the scope of employment at the time of the challenged occurrence, and the damage did not result from willful or wanton acts. Myers v. City of Hartford, 84 Conn.App. 395, 399 (2004); General Statutes § 7-465. Under Connecticut law, a municipality, subject to certain immunities, can be held liable for the negligent act or omission of a municipal officer acting within the scope of his or her employment. General Statutes § 52-557n. However, "[t]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. New York City Dept. Of Social Services, 436 U.S. 658, 691; 98 S.Ct. 2018 (1978).
General Statutes § 7-465 reads as follows in relevant part:
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Any employee of such municipality, although excused from official duty at the time, for the purposes of this section shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law . . . No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the tine when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section . . .
General Statutes § 52-557n reads as follows in relevant part:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision . . .
In the present case, the plaintiff has not alleged or presented any materials to show that there was a specific custom or policy in effect by the City of Stamford that caused his injuries and has not shown there was a violation of the plaintiff's civil rights.
[C]reation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional . . . We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. at 693-94.
[A] plaintiff pursuing a section 1983 claim against a municipality must demonstrate that his or her constitutional injury resulted from the employee's execution of an unconstitutional official policy or practice.
Seri v. Town of Newtown, 573 F.Sup.2d 661, 667 (D.Conn. 2008), citing Monell v. New York City Dept. of Social Services, supra, 436 U.S. 694.
While, "claims based on a failure to train or inadequate supervision can give rise to municipal liability under section 1983," Seri v. Town of Newtown, supra, 573 F.Sup.2d 667; City of Canton v. Harris, 489 U.S. 378, 387-88, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, supra, 388. "[T]he need for more or different training [must be] so obvious, and the inadequacy so likely to result in the violation of constitutional rights," that the failure of municipal policymakers to remedy the problem can be characterized as a deliberate or conscious choice. Id. at 389-90.
The Second Circuit has identified three requirements that a plaintiff must demonstrate before a municipality's failure to train or adequately supervise its employees can constitute deliberate indifference to its citizens' constitutional rights. Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (citing Harris, 489 U.S. at 389-90, 109 S.Ct. 1197). The plaintiff must show: (1) that a policymaker knows to a moral certainty that her employees will confront a given situation, excluding rare or unforeseen events; (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is history of employees mishandling the situation; and (3) that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.
(Internal quotation marks omitted.) Seri v. Town of Newtown, supra, 573 F.Sup.2d 667-68.
The plaintiff has difficulty establishing a viable Monell claim because he has not pointed to a specific deficiency in the Stamford Police Department's official policies and practices that caused his arrest. The plaintiff's primary contention is essentially that the botched investigation that lead to his arrest is sufficient evidence of Stamford's inadequate police training, bad hiring practices, or poor supervision. The plaintiff cannot rely on the mere fact that he was "unlawfully" arrested to demonstrate that Stamford failed to train or adequately supervise its officers. In order to survive summary judgment on this claim the plaintiff must specifically identify a deficient practice or procedure that was the actual cause of his unlawful arrest.
Beyond the troubling facts of his own case, the plaintiff has presented no evidence that can establish a genuine issue of material fact that the problems that caused his constitutional deprivation were so widespread that the failure to remedy them rises to the level of deliberate indifference on the part of Stamford. Absent a showing that the arrest was the result of chronic and systematic failures that transcend his own injury at issue in this case, "isolated or anecdotal instances of poor policing cannot establish municipal liability. In the absence of any evidence demonstrating a causal connection between his "unlawful" arrest, conviction, and incarceration and a specific deficiency in Stamford's official policies and procedures for police training and supervision, the plaintiff has failed to establish a viable Monell claim. Seri v. Town of Newtown, supra, 573 F.Sup.2d 667-68.
Regarding the claims relating to the Chief of Police, "Section 1983 claims against municipal employees sued in their official capacity are treated as claims against the municipality itself." (Citations omitted.) Id. "Therefore, in order to assert a viable claim against a municipal employee in his official capacity, the plaintiff must have a viable Monell claim against the municipality." Id. Because the plaintiff has not established that he has a viable Monell claim for municipal liability against Stamford, his claims against Chief Larabee must also fail.
V. Conclusion
In the present matter, the court agrees with the defendants that the plaintiff has not alleged or shown any custom or policy against the City of Stamford or Chief of Police Larabee, the execution of which caused his alleged damages. The plaintiff has not alleged or shown that the failure to train amounted to deliberate indifference. The plaintiff has not alleged or identified a specific deficiency in the City's training program, such that the deficiency is closely related to the ultimate injury. Lastly, the plaintiff has not overcome qualified immunity. As the individual defendants are entitled to summary judgment, the derivative actions against the City and the Chief of Police must also fail.
Accordingly, for the reasons set forth herein, the defendants are entitled to summary judgment in their favor as to all counts alleged in the plaintiff's complaint. The Motion for Summary Judgment is granted as to all counts.