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Greene v. City of Norwalk

United States District Court, D. Connecticut

March 21, 2017

CODY GREENE, Plaintiff,
v.
THE CITY OF NORWALK, et al., Defendants.

          MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANT OFFICERS' MOTION FOR SUMMARY JUDGMENT [DKT. NO. 78] AND GRANTING THE CITY OF NORWALK'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 79]

          Hon. Vanessa L. Bryant United States District Judge.

         I. Introduction

         Plaintiff Cody Greene brings this action against the City of Norwalk (“Norwalk”), and Officers Steven Luciano, Felipe Taborda, Adam Mulkern, and Julio Rodriguez (collectively, the “Defendant Officers”). He alleges, inter alia, that the Defendant Officers used excessive force under color of law, in violation of the United States Constitution. [Dkt. No. 51]. Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. [Dkt. Nos. 78, 79]. For the reasons that follow, the Defendant Officers' Motion for Summary Judgment [Dkt. No. 78] is GRANTED-IN-PART and DENIED-IN-PART, and the City Of Norwalk's Motion for Summary Judgment [Dkt. No. 79] is GRANTED.

         II. Background

         A. Norwalk Police Department Street Team

         The Defendant Officers were assigned to the Norwalk Police Department, Special Services Unit Street Team (the “Street Team”). [Dkt. No. 78-5 at 38-39]. The Street Team was tasked with investigating street level narcotics and gang activities and arresting suspected perpetrators. The Street Team specifically targeted those areas where [they have] had violence, drug dealing, gang activity, et cetera. [Dkt. No. 97-2, Kulhawik Dep., at 32]. Street Team members employed “self-initiated stops” rather than answering dispatch radio calls. [Dkt. No. 78-5 at 65]. Officer Tabora described the Street Team as a “pro-active” unit, and stated that they would patrol areas of the city where there was “an open drug trade or high crime area[] . . . where there has been gang activity, stabbings or shootings, areas where large fights occur through these . . . rival gangs.” [Dkt. No. 78-6 at 37]. If a Street Team officer saw something suspicious taking place, he would “initiate the action, speak with the person.” [Dkt. No. 78-5 at 65].

         Defendant Norwalk maintains that the Norwalk Police Department provided extensive training to all of its officers beyond that mandated by the State of Connecticut. [Dkt. No. 82]. The officers received training in use of force, shooting decisions, taser usage and arrest, and control/officer safety, although Plaintiff maintains that this training was inadequate. [Id.; Dkt. No. 97-1 at 20]. The Norwalk Police Department is an accredited law enforcement agency that has been certified by the Commission on Accreditation for Law Enforcement Agencies (“CALEA”) since 1995. [Dkt. No. 81-13]. In March 2012, the Norwalk Police Department received the “Certificate of Advanced Meritorious Accreditation” from CALEA. Id.

         The Norwalk Police Department's internal personnel tracking system suggests that none of the Defendant Officers had, at the time of the Cody Greene incident, any complaints registered against them. [Dkt. No. 80-2]. Plaintiff challenges the reliability of this tracking system, arguing that a 2011 report indicated that Officer Luciano had accounted for five percent of all instances of uses of force by the entire department. [Dkt. No. 97-2, 2011 Use of Force Analysis]. The same report stated that “the Special Services Street Team . . . was tasked with high visibility enforcement in known high incident locations. The unit made over 150 arrests and therefore came in contact with a much larger number of individuals than most other officers.” Id. It also explained that “[a]s a result of these additional arrests and encounters with potentially violent offenders, a higher than average use of force would be expected.” Id. In 2011, members of the Street Team reported four to five times more instances of uses of force compared to most other officers. Id. Plaintiff offers no additional facts to support his skepticism of the tracking system's reliability.

         Plaintiff faults the City of Norwalk for failing to offer Street Team members additional training to handle these encounters. [Dkt. No. 87-1 at 25 (citing Dkt. No. 82)]. He argues that by design, Street Team members faced heightened dangers, and that the Norwalk Police Department failed to train members of the Street Team to deal with these heightened dangers. Plaintiff singles out training on Terry stops in particular, arguing that the Norwalk police department dedicated only three power point slides to the issue during a training that was not specifically tailored for Street Team members. [Dkt. No. 97-2, Exh. 24]. Plaintiff offers no evidence that the general training received by officers together with the training criticized is inadequate.

         B. Plaintiff's Arrest

         At approximately 8:30 p.m. on July 18, 2012, Plaintiff went to visit a friend who lived at 16 School Street in Norwalk, Connecticut. [Dkt. No. 51 ¶ 14]. Plaintiff parked on the street and walked up to the building. [Dkt. No. 97-2, Greene Dep., at 29]. As he was knocking on a door, an unmarked black Ford Expedition with tinted windows pulled up a driveway and four males dressed in black got out of the vehicle. [Id.; Dkt. No. 78-5 at 67]. Defendants dispute this sequence of events, arguing that Mr. Greene began walking quickly toward the apartment building after he saw the car, and tucked something into his waistband. [Dkt. No. 78-5 at 69]. The Plaintiff maintains that the Defendants could not have seen this because they were behind him when he purportedly tucked something into his waistband. [Dkt. No. 96-1 ¶ 30; Dkt. No. 96-2, Mulkern Dep., at 69-70; Dkt. No. 96-2, Luciano Dep., at 35; Dkt. No. 96-2, Taborda Dep., at 42].

         The parties also dispute whether the Defendant Officers' clothing had any markings identifying them as law enforcement officers. [Dkt. 96-1 at 5]. Plaintiff has submitted evidence that the four officers were dressed in all black and that there were no markings on their clothing to indicate that they were police officers. [Dkt. No. 97-2, Greene Dep., at 31-32, 63; Dkt. No. 97-2, Martinez Dep., at 16, 18; Dkt. No. 97-2, Rodriguez Dep., at 7-8].

         When the four men got out of the car, Officer Luciano stayed by the car, and the three other Defendant Officers walked up to the Plaintiff. [Dkt. No. 96-2, Greene Dep., at 33, 37, 77-78]. Officer Mulkern asked the Plaintiff what he was doing at the apartment and who he was there to see. [Dkt. No. 78-4 at 30; Dkt. No. 96-2, Taborda Dep., at 47; Dkt. No. 96-2, Rodriguez Dep., at 48]. Plaintiff responded that he was there to see his “cousin, ” who Plaintiff stated in his deposition was Jerrod Smith, a close friend that he referred to as a cousin, but to whom Plaintiff was not related. [Dkt. No. 78-4 at 31]. Plaintiff claims he then pointed to Mr. Smith and stated, “That's my cousin right there.” [Id. at 31]. Plaintiff then stated, “My dad is a State Trooper.” [Id. at 89]. Plaintiff testified that when questioned by the four men, he was unaware that they were police officers, and that the officers never identified themselves as police officers. [Dkt. No. 80-8 at 84-85]. He further testified that the four men were dressed all in black, and that their clothing had no markings identifying the men as police officers. [Dkt. No. 96-2, Greene Dep., at 31]. A photograph taken of Officer Mulkern later that night showed him wearing a tee shirt which did not have police insignia on the front. [Dkt. No. 78-9]. Plaintiff also testified that he saw that the men were wearing belts, but did not notice that the men were wearing guns or weapons on their belts. [Dkt. No. 97-2, Greene Dep., at 63; Dkt. No. 80-8 at 35]. Plaintiff testified that none of the officers asked him what he had in his waistband, and none asked to pat him down. [Dkt. No. 80-8 at 89].

         Plaintiff then maintains that the four individuals began speaking with each other, and that he heard someone say something like, “get him” or “grab him” and then one of the men-a white male-grabbed his upper right arm and tried to pull him off of his cousin's stoop. Id. at 32, 92-93. Plaintiff claims that the individual did not say anything to him when he grabbed his arm, and did not ask him whether he had anything in his waistband. Id. at 32, 89, 93. Officer Mulkern maintains that he told the Plaintiff that he was going to pat him down to look for drugs or weapons, and he testified that he believed Mr. Greene was carrying a weapon. [Dkt. No. 78-5 at 14; Dkt. No. 81-12 at 95]. Officer Mulkern also testified that he grabbed the back of Plaintiff's shirt after he started to run, ripping a “square” piece of fabric from the back, but that he never grabbed the Plaintiff's arm. [Dkt. No. 96-2, Mulkern Dep., at 91].

         Officer Mulkern cut his leg on a fence or railing immediately after the Plaintiff began to flee from the Defendant Officers. [Dkt. No. 78-5 at 91]. The parties dispute whether the Defendant was injured while holding onto the Plaintiff or whether he tripped after the Plaintiff escaped his grasp. [Dkt. No. 96-1 ¶ 59]. A photograph of Officer Mulkern at the Norwalk hospital appears to show this injury, and also depicts body armor with “POLICE” written on it, on the floor beside his bed. [Dkt. No. 80-9]. No evidence indicates whether this vest belonged to Officer Mulkern, or whether he or any other officer wore it during the pursuit. In the photograph, Officer Mulkern is wearing a black t-shirt with an Under Armour logo on the chest. Id. No yellow police lettering or yellow badge is visible on the front of the t-shirt. Id.

         Plaintiff then ran from the individuals, describing his route as running up the driveway, left onto School Street, down School Street towards Main Street, “across Main Street through a parking lot, up a driveway, and . . . over a fence down to the ground below going towards Main Street.” Id. at 35, 93. He denied that anyone shouted at him to stop or identified themselves as police officers during the pursuit. [Dkt. No. 78-4 at 94-95]. Police reports indicate that a woman named Sonia Suarez later located on the ground near her home a bag containing 28 smaller bags of a green leafy substance later determined to be marijuana, but these reports do not state that Ms. Suarez saw the Plaintiff in possession of or discarding the bag. [Dkt. Nos. 81-1, 81-8]. The Plaintiff denies ever having possessed this marijuana, or disposing of it during the pursuit. [Dkt. No. 96-2, Greene Dep., at 64-65].

         All four Defendant Officers chased the Plaintiff. [Dkt. No. 96-2, Rodriguez Dep. at 63]. Officer Rodriguez removed his Taser from his duty belt, and Officer Mulkern drew his gun during the pursuit. [Dkt. No. 96-2, Rodriguez Dep., at 64-65; Dkt. No. 96-2, Mulkern Dep., at 97, 104]. Plaintiff landed on his feet in mulch after climbing over the fence. [Dkt. No. 78-4 at 37, 104; Dkt. No. 96-2, Rodriguez Dep., at 63]. A taco truck was located approximately fifteen feet away from the fence. [Dkt. No. 96-2, A. Martinez Dep., at 20]. An eyewitness waiting in line at the truck, Oviedo Lagos, confirmed that he saw the Plaintiff land on his feet, apparently uninjured. [Dkt. 96-2, Lagos Dep., at 15].

         After Plaintiff climbed over the fence, his left leg started to “go numb . . . kind of a spasm feeling.” [Dkt. No. 80-8 at 38]. Mr. Lagos testified that the Plaintiff was tased, and that he saw the Plaintiff's body lock up. [Dkt. No. 96-2, Lagos Dep., at 15-16]. The parties agree that Officer Rodriguez discharged his Taser and that one of the Taser darts hit the Plaintiff, but they do not agree on where Officer Rodriguez was standing when this happened. [Dkt. No. 96-1 ¶¶ 101, 102].

         After he was tased, Plaintiff looked toward the fence and saw a white man dressed in all black standing on the other side of the fence, pointing a weapon at him. [Dkt. No. 80-8 at 38-39]. Officer Mulkern confirmed in his deposition that he pointed his gun at the Plaintiff after the Plaintiff went over the fence. [Dkt. No. 96-2, Mulkern Dep., at 97, 104]. Plaintiff states that after he saw the weapon, he got down on his knees and laid on his stomach. [Dkt. No. 80-8 at 38]. Plaintiff did not remember seeing any other individuals dressed in black after his leg went numb. [Dkt. No. 80-8 at 40]. Mr. Lagos testified that it looked like the Plaintiff “collapsed, ” face forward with his arms in front of him, onto the grass. [Dkt. No. 96-2, Lagos Dep., at 16]. By contrast, Defendants maintain that the Plaintiff only landed on the ground after Officer Luciano tackled the Plaintiff, colliding with him as he continued to run. [Dkt. No. 78-7 at 72; Dkt. No. 78-8 at 59]. Officer Luciano believed that the Plaintiff had already been tased when he tackled the Plaintiff. [Dkt. No. 96-2, Luciano Dep., at 68-69]. Plaintiff testified that he did not remember anything from between the time he got down on his stomach until he woke up in the hospital. [Dkt. No. 80-8 at 40].

         A second eyewitness, Alex Martinez, said that he saw the Plaintiff laying down on grass near the fence, and that he saw one officer approach the Plaintiff from behind and a second from the side. [Dkt. No. 96-2, A. Martinez Dep. at 20, 23]. Mr. Lagos testified that two more officers approached the Plaintiff shortly afterward. [Dkt. No. 96-2, Lagos Dep., at 11]. Mr. Lagos further testified that while the Plaintiff was laying immobile on his stomach, an officer walked over to him, turned him onto his back, put both knees on the Plaintiff's shoulders, and started “punching his face in” using both his fists and elbows. [Dkt. No. 96-2, Lagos Dep., at 17-18, 49; see also Dkt. No. 96-2, A. Martinez Dep., at 31]. Officer Luciano admitted to striking the Plaintiff with a closed fist, but described the hits as resulting from a “struggle” with the Plaintiff. [Dkt. No. 96-2, Luciano Dep., at 62]. Mr. Lagos also saw that the Plaintiff was bleeding from his face. [Dkt. No. 96-2, Lagos Dep., at 17-18]. Bystanders yelled at the officers to stop hitting the Plaintiff. Id. at 17. In response, Officer Mulkern may have pulled up his pants leg to show them the cut on his leg, stating, “You think this guy's good?” and “Look what he did to me.” [Dkt. No. 96-2, Lagos Dep., at 17-18]. Plaintiff's mother took a photograph of the scene of the arrest the day after it took place. [Dkt. No. 96-2, S. Greene Aff., ¶ 5]. The photograph depicts a copious amount of blood staining the curb next to a grassy area. Id.

         After Officer Luciano hit the Plaintiff, he turned the Plaintiff back onto his stomach and Officers Luciano and Taborda handcuffed him. [Dkt. No. 78-2 at 82; Dkt. No. 96-2, A. Martinez Dep., at 31]. The exact location of Officer Rodriguez while Officer Luciano was hitting the Plaintiff is unclear from the record. The Plaintiff and Officer Luciano were visible to all of the remaining Defendants during the time the Plaintiff was on the ground. [Dkt. No. 96-2, Mulkern Dep., at 104; Dkt. No. 96-2, Rodriguez Dep., at 73; Dkt. No. 96-2, Luciano Dep., at 61; Dkt. No. 96-2, Taborda Dep., at 84]. The parties dispute whether or how much the Plaintiff resisted once he was handcuffed. Defendants claim, and Plaintiff denies, that when Officer Luciano tried to place Greene into custody, Plaintiff was combative and struggled with him. [Dkt. No. 81-11 at 120-21; Dkt. No. 81-10 at 73; Dkt. No. 81-9 at 84; Dkt. No. 97-1 at 16]. Officer Luciano never saw a weapon and never found a weapon in Plaintiff's possession or in the vicinity. [Dkt. No. 96-2, Luciano Dep., at 51-53].

         A Norwalk Hospital ambulance responded to the scene using lights and sirens, arriving at approximately 8:53 pm. [Dkt. No. 80-6]. Greene was prone on the ground with his hands cuffed behind his back upon the ambulance's arrival. Id. An ambulance report documents that Greene was in an “agitated state.” Greene was handcuffed to his stretcher in the ambulance, which Defendants attribute to Greene's “combative” behavior. [Id.; Dkt. No. 79-2 at 8]. While the ambulance report described Greene as “agitated, combative, kicking and spitting, ” physician notes used “combative” as part of a description of Plaintiff's diminished brain function following a traumatic brain injury. [Dkt. No. 78-16; Dkt. No. 96-2, Marc L. Rosen Consultation Report, at 26-27]. Mr. Lagos testified that it that when Greene was being placed in the ambulance, he was “screaming that he was in pain and his face and arm really hurt.” [Dkt. No. 96-2, Lagos Dep., at 21]. Ambulance personnel were interviewed as part of the Internal Affairs investigation into the matter. [Dkt. No. 81-2]. One of the EMTs, Beatrice Grant, described Greene as “agitated” during the drive to the Hospital. Id.

         At the hospital, a doctor signed an order authorizing the Plaintiff's physical restraint. [Dkt. No. 80-4]. Hospital records reflect that Greene remained agitated once in the Emergency Room. [Dkt. No. 80-5]. An admission note stated that the Plaintiff exhibited “inappropriate/incomprehensible speech” and “moments of aggressive fighting of all 4 ext. restraints [followed] by episodes of unresponsiveness.” Id. Hospital notes further state that the Plaintiff suffered traumatic brain injury, orbital, maxillary, and mandibular fractures, as well as nasal and septal fractures. Id. Photographs of the Plaintiff's face on July 20, 2012 show one of the Plaintiff's eyes swollen shut, stitches up the side of his nose, along with dried blood. [Dkt. No. 96-2, Exh. 17]. Plaintiff also underwent drug testing upon admission to the hospital, which showed that ‚Äúserum ...


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