United States District Court, D. Connecticut
ORDER ON MOTION FOR SUMMARY JUDGMENT
A. Bolden United States District Judge.
Keith Perry, brings this action against Defendants, Officer
Corey Kozuch and Officer Lundberg, 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.
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
STATEMENT OF FACTS
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.
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.
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. Id. ¶ 7; Pl.'s Rule 56
Statement ¶ 7; Perry Dep. 101:10-21, 151:21-152:1, ECF
The Initial Stop
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.
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.
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.
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.
Officers Ask Mr. Perry to Exit the Vehicle
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.
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.
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.
Officer Kozuch Pats Down Mr. Perry
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.
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.
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.
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.
Officer Kozuch Removes Mr. Perry's Headset
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.
After the Pat Down
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.
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 ...