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Raffone v. Nugent

United States District Court, D. Connecticut

January 15, 2016

PASQUALE RAFFONE, Plaintiff,
v.
CHRISTOPHER NUGENT, Defendant.

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Doc. #45] AND PLAINTIFF’S MOTIONS FOR ORDER AND LEAVE TO FILE POST DATED /SUPPLEMENTAL LOCAL RULE 56(a)2 REGARDING DISUPTED ISSUES OF FACT [Doc. ## 61, 62]

JANET BOND ARTERTON UNITED STATES DISTRICT JUDGE.

Plaintiff, incarcerated and pro se, commenced this action in state court which Defendant removed to this Court. Defendant is a certified canine handler officer with the Shelton Police Department. In the operative amended complaint, Plaintiff asserts claims for illegal search and seizure and use of excessive force. Defendant has filed a motion for summary judgment. In addition to his opposition, Plaintiff has filed motions seeking an order permitting him to listen to a dispatch recording and leave to file a supplemental Local Rule 56(a) Statement of Disputed Factual Issues. For the reasons that follow, Plaintiff’s Motion for Order is denied and his Motion for Leave to File Supplemental Local Rule 56(a) 2 Statement is denied. Defendant’s Motion for Summary Judgment is granted in part and denied in part.

I. Facts[1]

On December 18, 2012, the police went to 19 Maple Street in Shelton in response to a call for assistance. Plaintiff was arrested for disorderly conduct. As a result of this arrest, an order of protection was issued requiring Plaintiff to refrain from assaulting, threatening, harassing, following, interfering with or stalking his girlfriend, Ms. Overton.

On March 5, 2013, Plaintiff was arrested for an incident that occurred in February 2013, and he was charged with disorderly conduct and violation of the 2012 protective order. As a result of this arrest, a second protective order was issued on March 6, 2013. This order required Plaintiff to refrain from assaulting, threatening, harassing, following, interfering with or stalking Ms. Overton; to stay away from Ms. Overton’s home, 19 Maple Street, Shelton; to not contact Ms. Overton in any manner; and to stay 100 yards away from Ms. Overton. Plaintiff was aware of and understood the terms and conditions of the 2013 protective order.

On March 19, 2013, Defendant observed Plaintiff traveling toward 19 Maple Street. Defendant verified that the no-contact protective order remained in effect and drove to an area where he could observe 19 Maple Street. Plaintiff parked his truck on a side street perpendicular to Maple Street within 100 yards of 19 Maple Street and Defendant saw Plaintiff leave his vehicle and approach 19 Maple Street. Plaintiff entered the basement to retrieve tools he had stored there.

Defendant and another police officer knocked at the door of 19 Maple Street and asked Ms. Overton if Plaintiff was at the residence. Ms. Overton permitted the officers to search her residence for Plaintiff. During the search, the officers learned that the basement was accessible only through a door in the backyard. Ms. Overton consented to a search of the basement.

When they reached the basement door, Defendant saw recent footprints in the snow leading to the basement steps and noted that the lock to the interior basement door was broken and the door was ajar. The basement was dark. Believing that Plaintiff was hiding in the basement, Defendant decided to utilize his police dog to search the basement for Plaintiff. Before sending the dog into the basement, Defendant made several announcements that he was a police officer, that there was a police dog present, and that the dog would be released if whoever was in the basement did not come out. No one responded to the announcements. The dog was released and located Plaintiff hiding under a tarp in the corner of the basement. Plaintiff states that Defendant ordered the dog to attack him after he had surrendered. Defendant contends that the dog bit Plaintiff while attempting to subdue him. Plaintiff was taken to the Shelton Police Department where emergency medical technicians treated the dog bite. Plaintiff’s skin was broken in two places. The technicians dressed the wound and described the injuries in their report as “soft tissue swelling and bruising.” Plaintiff did not request further medical treatment from Defendant. The technicians noted that Plaintiff had full range of motion in his arm and no circulation issues. No doctor has diagnosed any nerve damage resulting from the bite.

II. Standard of Review

A motion for summary judgment may be granted only where there are no issues of material fact in dispute and the moving party is therefore entitled to judgment as a matter of law. See Rule 56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy his burden “by showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence as would allow a jury to find in his favor in order to defeat the motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Merely verifying the allegations of the complaint in an affidavit, however, is insufficient to oppose a motion for summary judgment. Zigmund v. Foster, 106 F.Supp.2d 352, 256 (D. Conn. 2000) (citing cases).

When reviewing the record, the court resolves all ambiguities and draws all permissible factual inferences in favor of the party against whom summary judgment is sought. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009). If there is any evidence in the record on a material issue from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is inappropriate. Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004). However, the existence of a mere “scintilla” of evidence supporting the plaintiff’s position is insufficient to defeat a motion for summary judgment. Harvey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008). The nonmoving party “must offer some hard evidence showing that its version is not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). In addition, where the parties offer contradictory versions of the facts, one of which is “blatantly contradicted by the record, ” the court should not adopt the unsupported version when ruling on a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007).

III. Discussion

In his amended complaint, Plaintiff asserts two claims against Defendant. First, he contends that Defendant conducted an illegal search and seizure because he lacked probable cause to enter the property at 19 Maple Street, Shelton, Connecticut. Second, he alleges that Defendant used excessive force ...


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