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Perry v. Kozuch

United States District Court, D. Connecticut

March 16, 2017

KEITH PERRY, Plaintiff,
v.
COREY KOZUCH and OFFICER LUNDBERG, Defendants.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          Victor A. Bolden United States District Judge.

         Plaintiff, Keith Perry, brings this action against Defendants, Officer Corey Kozuch and Officer Lundberg[1], raising claims under the Fourth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983 (“Section 1983”), 42 U.S.C. § 1988 (“Section 1988”), the Constitution of the State of Connecticut, and the laws of Connecticut. Plaintiff initially brought this action in the Superior Court of Connecticut, and Defendants removed the action to this Court. ECF No. 1.

         Pending before the Court is the Defendants' motion for summary judgment on all of Mr. Perry's claims. ECF No. 61. For the reasons that follow, the Defendants' motion is GRANTED as to all of Mr. Perry's federal claims. The Court declines to exercise supplemental jurisdiction as to Mr. Perry's remaining state law claims and therefore remands those claims to the Superior Court of Connecticut.

         I. STATEMENT OF FACTS

         As an initial matter, the Court notes that every fact outlined in the Defendants' Local Rule 56(a)(1) statement relies, at least in part, on a citation to Mr. Perry's own deposition testimony. See generally Def.'s Rule 56 Statement, ECF No. 61-2. While Mr. Perry disputes various facts outlined in the Defendants' Rule 56 statement, his denials generally refer only to facts that do not contradict the facts in each corresponding paragraph of the Defendants' Rule 56 statement. See generally Pl.'s Rule 56 Statement, ECF No. 66. As Defendants note, certain denials in Mr. Perry's Rule 56 statement appear to contradict his own deposition testimony. Def.'s Reply at 1, ECF No. 70.

         On or around September 1, 2012, Mr. Perry purchased a 1985 Chevy C10 in South Carolina. Def.'s Rule 56 Statement ¶ 1, ECF No. 61-2. He obtained a temporary South Carolina registration for the vehicle and received one temporary paper license plate, which he installed on the rear of the vehicle. Id. ¶ 2.

         On or around September 12, 2012, Mr. Perry was at a friend's house, located on Walnut Street in Middletown, Connecticut. Def.'s Rule 56 Statement ¶ 3. While Mr. Perry was at this friend's house, Mr. Perry's son called Mr. Perry and informed Mr. Perry that he had run out of gas and was at a Walgreens in Middletown. Id. ¶ 4. At this time, Mr. Perry's vehicle had only one marker tag, which was on the rear of the vehicle. Id. ¶ 6. The parties dispute whether the marker tag on the vehicle's rear was faded and illegible, but Mr. Perry's own deposition testimony states that he knew it was not legible and not clear.[2] Id. ¶ 7; Pl.'s Rule 56 Statement ¶ 7; Perry Dep. 101:10-21, 151:21-152:1, ECF No. 61-3.

         A. The Initial Stop

         While Mr. Perry was driving the vehicle, Middletown Police Officer Corey Kozuch stopped Mr. Perry and approached Mr. Perry's driver's side window, at which point Mr. Perry asked Officer Kozuch why he had been pulled over. Def.'s Rule 56 Statement ¶ 8. This stop occurred near the intersection of High Street and Williams Street, on High Street. Id. ¶ 5; Pl.'s Rule 56 Statement ¶ 7; Perry Dep. 99:16-18, ECF No. 61-3. Officer Kozuch, who was accompanied by Officer Lundberg while on patrol in a police vehicle, first noticed Mr. Perry's vehicle when it drove past the intersection of Pleasant Street, Broad Street, and South Main Street. Police Report at 2, Pl.'s Br. Ex. 6, ECF No. 66-6. Before stopping Mr. Perry, Officer Kozuch had noticed that his vehicle did not have a front marker license plate, and he also noted that the vehicle's rear marker license plate was “unreadable.” Police Report at 1-2.

         Based on Mr. Perry's deposition testimony, Officer Kozuch's first statement to Mr. Perry was that “did [you] know when [your] license plate was expired.” Perry Dep. 103:13-15, Pl.'s Br. Ex. 1, ECF No. 66-1. At some point during the encounter, Officer Kozuch also informed Mr. Perry that “[w]e stopped you because we could not read the plate on your vehicle.” Perry Dep. 101:10-14, ECF No. 61-3.

         Officer Kozuch asked Mr. Perry for his license and registration. Def.'s Rule 56 Statement ¶ 10. While Officer Kozuch was requesting Mr. Perry's license and registration, Mr. Perry was annoyed and informed Officer Kozuch that he was upset about being stopped. Perry Dep. 102:23-103:4, 105:22-106:8, 107:22-108:20, ECF No. 61-3.

         After Officer Kozuch received Mr. Perry's license and registration, Officer Kozuch walked away from Mr. Perry's vehicle. Def.'s Rule 56 Statement ¶ 11. At this time, Mr. Perry removed his cell phone from a cell phone clip attached to his hip, called his friend, and then placed his cell phone on the seat, using Bluetooth to continue to speak with his friend. Id. ¶¶ 11-12; Perry Dep 113:16-21, ECF No. 61-3. After a period of three to five minutes, Officer Kozuch and Officer Lundberg both walked to Mr. Perry's passenger side window, returned his information, and informed Mr. Perry that he could go. Def.'s Rule 56 Statement ¶ 13.

         B. Officers Ask Mr. Perry to Exit the Vehicle

         After Officers Kozuch and Lundberg informed Mr. Perry that he could go, Mr. Perry asked them whether he should “go to headquarters” so that he would not “keep getting pulled over” while driving the vehicle. Perry Dep. 126:18-22, ECF No. 61-3. Mr. Perry testifies that, at this time, his voice may have ben raised because he was feeling agitated. Id. 127:3-11. Mr. Perry could not recall whether he asked the officers this question once or twice. Id. 127:12-25.

         Officer Kozuch allegedly responded to Mr. Perry's question by telling Mr. Perry to “move the F on.” Perry Dep. 128:10-15, ECF No. 61-3. Mr. Perry testifies that he then “got upset” and began “yelling.” Id. 128:19-23. Specifically, Mr. Perry yelled: “[w]hy - why are you cussing and swearing at me? What makes you think you have the right to cuss? I didn't swear at you. Why are you cussing and swearing at me?” and “I go to church. I don't be around people cussing and swearing.” Id. 128:25-129:5. Officer Kozuch responded by telling Mr. Perry that he “don't give a F about God.” Id. 129:10-12. One of the officers then told the other to “write [Mr. Perry] a ticket.” Id. 129:7-8. At this time, one of the officers also told Mr. Perry to “[g]et out of the car.” Id. 130:1-4, 131:1-4. Mr Perry asked the officers why he had to get out of the vehicle. Id. 132:19-133:5.

         Mr. Perry testifies that, after one of the officers told him to get out of the car, Officer Kozuch then went around the back of the vehicle to go to the driver's side of the vehicle to open the door. Perry Dep: 131:10-17, ECF No. 61-3. At this time, Mr. Perry was still on the phone with his friend using Bluetooth, though he was not saying anything to her. Id. 131:22-132:3. When Officer Kozuch reached the driver's side door of the vehicle, he and Mr. Perry both moved to open the door at the same time. Id. 132:4-7. Throughout this encounter, Officer Lundberg remained standing at the passenger side of Mr. Perry's vehicle, towards the back of Mr. Perry's truck, near the back tires. Id. 148:9-25, 149:3-9. Mr. Perry also partially exited the vehicle at the time and had “one foot on the ground” and “the other foot was in the truck.” Perry Dep 132:15-18, ECF No. 61-3. Around this time, Mr. Perry also asked the officers, “[w]hy, why are you writing me a ticket at this point, you already gave me my stuff back.” Id. 132:10-12.

         C. Officer Kozuch Pats Down Mr. Perry

         At the time that Mr. Perry was partially exited from the vehicle, with one foot on the ground and the other in the truck, Officer Kozuch grabbed Mr. Perry's left wrist with both hands. Perry Dep 134:11-18, ECF No. 61-3. Officer Kozuch gripped Mr. Perry's left wrist firmly. Id. 135:2-5. Mr. Perry states that at some point during the encounter, Officer Kozuch pulled at his wrist once. Id. 138:4-12.

         Mr. Perry remained still at this time and told Officer Kozuch: “I've been out of work for 12 years, I had a bad shoulder, I need a shoulder replacement. I think it's best if you let my shoulder go, my arm go.” Perry Dep. 135:10-13, ECF No. 61-3. Mr. Perry testifies that his tone of voice was upset and that he was yelling at this time. Id. 135:14-21. Officer Kozuch then yelled at Mr. Perry in response, raising his voice to a tone that Mr. Perry testifies was “like, screaming and yelling.” Perry Dep. 138:19-22, ECF No. 61-3. Officer Kozuch yelled at Mr. Perry to get to the back of the truck. Id. 138:16-17.

         Mr. Perry testifies that he responded by asking Officer Kozuch, “Why you yelling at me? You need anger management.” Perry Dep. 138:23-139:1, ECF No. 61-3. Officer Kozuch responded by telling Mr. Perry to put his hands in the back of the tailgate on the vehicle, which Mr. Perry did. Id. 139:2-6. Officer Kozuch asked Mr.Perry whether he had any permit for a gun, and Mr. Perry responded that he did not. Id. 139:6-7. Around this time, Officer Kozuch informed Mr. Perry that “there was a bulge.” Id. 140:12-15. Mr. Perry disputes whether there was a bulge, though he admitted that he still had his phone case on his belt at this time. Id. 140:16-18, 141:3-22. Mr. Perry also admits that he could not see from Officer Kozuch's perspective, or “from his angle looking down.” Id. 141:23-142:1. Mr. Perry also testifies that he had looked down at the phone case on his belt when Officer Kozuch had asked about whether he had a permit for a gun. Id. 142:2-12. When Mr. Perry looked down towards the phone case on his belt, at his hip, it was visible to him. Id. 142:11-12. At no point did Mr. Perry inform Officer Kozuch that the item on his belt was his phone case. Id. 144:1-9.

         Officer Kozuch then informed Mr. Perry that he would conduct a pat down. Perry Dep. 139:10-21, ECF No. 61-3. Officer Kozuch then conducted the pat down. Id. 144:1-2. Mr. Perry testifies that Officer Kozuch patted down Mr. Perry's shoulders, arms, sides, belt, legs, and ankles. Id. 144:3-6. Neither Officer Kozuch nor Mr. Perry spoke during the pat down. Id. 144:7-13.

         D. Officer Kozuch Removes Mr. Perry's Headset

         After Officer Kozuch completed the pat down of Mr. Perry, Mr. Perry spoke to his friend over the headset, asking “Ross, did you hear that?” Perry Dep. 146:10-18, ECF No. 61-3. Around this time, Officer Kozuch attempted to grab the Bluetooth out of Mr. Perry's ear, but Mr. Perry prevented Officer Kozuch from doing so, by moving his head away. Id. 146:20-147:2. Officer Kozuch then informed Mr. Perry that “if you move again, you'll be arrested for resisting.” Id. 147:2-4. Officer Kozuch then grabbed the Bluetooth headset and removed it from Mr. Perry's ear. Id. 147:5-7. Officer Kozuch then threw the headset into Mr. Perry's vehicle, through the driver's side window, in to the front area of the truck. Id. 147:8-16.

         E. After the Pat Down

         After Officer Kozuch completed the pat down of Mr. Perry, Officer Kozuch moved to the side of the back of the vehicle, towards the passenger side of the vehicle, to speak to Officer Lundberg. Perry Dep. 144:16-19, ECF No. 61-3. Officer Kozuch then spoke to Mr. Perry again, first saying “[l]et me ask you a question, ” to which Mr. Perry answered, “[o]kay.” Id. 144:19-21. Officer Kozuch then asked Mr. Perry whether he “felt offended because I cuss[ed] and swore at [him].” Id. 144:22-23. Mr, Perry answered yes. Id. 144:24. Officer Kozuch then replied, “Well, then you're weak.” Id. 144:25. Mr. Perry had no response. Id. 145:1-2.

         Officer Kozuch then went to the officers' patrol vehicle to write the ticket. Perry Dep. 145:3-6, ECF No. 61-3. By this time, Mr. Perry was also standing near the back of the truck, near where Officer Lundberg was standing. Id. 145:7-16. Officer Lundberg spoke to Mr. Perry, “trying ...


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