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Goff v. Chivers

United States District Court, D. Connecticut

May 17, 2017

SHIRLEY R. GOFF and GREGORY S. GIBSON
v.
JOSHUA CHIVERS, et al.

          MEMORANDUM OF DECISION

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         This is an action brought by plaintiffs Shirley E. Goff and Gregory S. Gibson against defendants, Connecticut State Trooper Joshua Chivers, Sergeant Ceruti, Sergeant Garcia, and Sergeant Butters, pursuant to section 1983 of Title 42 of the United States Code. [Doc. #1]. Plaintiff Goff ("Goff") alleges that defendants subjected her to excessive force during the course of her arrest, in violation of her Fourth Amendment rights. See Id. Plaintiff Gibson ("Gibson") alleges that defendants violated his Fourth Amendment rights to be free from false arrest and malicious prosecution. See id. Plaintiffs seek monetary damages. A bench trial was held on December 12, 2016. [Doc. #60].[1]

         All parties presented testimony and evidence at trial. Four witnesses testified: plaintiff Shirley Goff; plaintiff Gregory Gibson; defendant State Trooper Joshua Chivers; and Sergeant Mark Devine. See Doc. #61. All of plaintiffs' and defendants' exhibits were entered into evidence by agreement of the parties. See Doc. #60; see also Tr. 5, lines 11-12.

         Having considered the testimony of the witnesses and all of the documentary evidence presented, the Court finds that plaintiff Goff has failed to prove that she was subjected to excessive force in violation of her Fourth Amendment rights. The Court further finds that plaintiff Gibson has failed to prove that he was maliciously prosecuted in violation of his Fourth Amendment rights. The Court further finds that plaintiff Gibson has proven by the preponderance of the evidence that he was falsely arrested, in violation of his Fourth Amendment rights. In support of these determinations, the following constitutes the Court's findings of fact and conclusions of law pursuant to Rules 52(a) of the Federal Rules of Civil Procedure.

         FINDINGS OF FACT

         Based on the entire record developed during trial, comprised of the credible testimony and the admitted exhibits, including the video recording of the incident, and the post-trial submissions, the Court finds the following facts to have been established.

         At approximately 10:35 p.m. on May 20, 2012, plaintiff Goff was driving her vehicle in the southbound lane of Route 395 in Waterford, Connecticut. Gibson was a passenger in the vehicle. Gibson and Goff had spent several hours together at a casino and were heading back home. Defendant Connecticut State Police Trooper Joshua Chivers ("Chivers") was traveling in his State Police cruiser when he observed Goff s vehicle driving erratically. Chivers activated the lights on his cruiser. Upon seeing the flashing lights, Goff pulled her vehicle over into the breakdown lane and stopped.

         Chivers, who was alone on patrol, exited the cruiser and approached the driver's side window of Goff's vehicle. After posing several questions to Goff through her open window, Chivers asked Goff to exit the vehicle, and she complied. Goff consented to attempting several sobriety tests. After several unsuccessful attempts, Goff was unable complete the tests posed, and became increasingly belligerent. Chivers made the decision to place Goff under arrest for operating under the influence.

         At this point, Chivers, who was standing on the shoulder of the road facing Goff, asked Goff turn around. She complied. He reached for her arms and placed them behind her. Goff immediately started to struggle, attempting to free herself from Chivers' grasp. She started to step away from him and turned her body, causing Chivers to lose his grip on her right arm. Chivers then pushed Goff against the hood of the police cruiser, attempting to regain control of her arms and to limit her movement. Goff pushed herself up off the hood of the car and twisted her right arm and body away from Chivers. Keeping one hand on Goff s left arm, and one hand on her back, Chivers again pushed Goff against the hood of the police cruiser. Goff used her right arm, which was still free, to brace herself against the car, and then twisted her body and pulled her left arm away from Chivers. Chivers pushed his right hand onto her back and reached back for her left arm; Goff s head and upper body then came into contact with the hood of the car.[2]

         Once Chivers regained control of Goff s left arm, he radioed for backup. Goff continued to resist, and did not comply with Chivers' five subsequent orders to put her right hand behind her back, continuing to hold on to the front of the car with her right hand. Chivers then successfully pried Goffs right hand off the car and placed it behind her back, and held Goff against the hood of the car. When she then complained that the hood was hot against her face, Chivers immediately moved Goff to the side of the cruiser. Chivers ordered Goff to stop moving twenty-three times over the course of the next four minutes; to stop resisting once; and to keep her hands still twice; before back-up arrived and Goff was placed in handcuffs.

         As Chivers was administering the sobriety tests to Goff, Gibson remained seated in the passenger seat of Goff's vehicle, watching the events transpire through the vehicle's side view and rearview mirrors. As Chivers first attempted to place Goff under arrest, Gibson stood up and stepped out of the car, remaining next to the passenger's side front door. Upon seeing Chivers and Goff begin to struggle, Gibson yelled loudly at Chivers, expressing his displeasure.[3] Chivers directed him to get back into the car, and continued to struggle with Goff. Gibson complied with this order. He sat back down in the vehicle, with the passenger side door open, his body facing outwards with his feet outside the vehicle on the ground. Chivers, who was still attempting to control Goff, yelled at Gibson to sit in the car and to shut his mouth; Gibson then turned his body to face forward so that his feet were no longer outside the vehicle, and closed the car door. He continued to watch and listen to Chivers' interaction with Goff through his open window, and he also lowered the convertible roof of Goff s car so that he could have a better view.

         After Chivers had Goff under control, but not handcuffed, Gibson and Goff communicated, with Goff yelling to Gibson from where she stood with Chivers by the police cruiser, and Gibson yelling back to Goff from his position in the passenger seat of Goff's car. Goff asked Gibson to contact various people by phone and to call the media. Gibson used his cellphone to call a friend. He did not get out of the vehicle again until the officers placed him under arrest.

         A sergeant arrived at the scene and assisted Chivers in handcuffing Goff, who was then placed in the police cruiser.[4] Chivers then relayed to the sergeant that Gibson had been "out of control." Exhibit 502 at 19:55. He told the sergeant that Gibson had "stepped out of the car once, and he spent the whole time looking out and screaming at me." Id. at 21:33. The sergeant asked: "Do you want to grab him for interference?" Id. at 21:36. Chivers replied: "Yeah, that works." Id. at 21:40. Gibson was then arrested.

         Both plaintiffs were transported to the State Police barracks. Goff was charged with Operating Under the Influence, in violation of section 14-227a of the Connecticut General Statutes; Failure to Drive in Proper Lane, in violation of section 14-236; and Interfering with an Officer, in violation of section 53a-167a. Photographs were taken of Goff's thumb, which was bleeding, and she received medical attention before being released on a non-surety bond. Goff was then transported by ambulance from the barracks to the hospital, where a CAT scan was performed, and a bandage was placed on her thumb. She received no further treatment for any injuries she sustained in connection with her arrest.

         Gibson was also released on a non-surety bond, and was given an appearance date to appear in court in connection with the charge of Interfering with an Officer, in violation of section 53a-167 of the Connecticut General Statutes. Gibson hired an attorney to represent him in the criminal matter, and appeared one time in court before the charge against him was nolled.

         CONCLUSIONS OF LAW

         I. Section 1983

         Plaintiffs' claims are brought pursuant to section 1983 of Title 42 of the United States Code. "A §1983 claim has two essential elements: (1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges." Annis v. Cty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). To prevail on a section 1983 claim, plaintiffs must allege the personal involvement of the individual defendant. See Costello v. City of Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Here, each plaintiff alleges a Fourth Amendment deprivation. The Court will address each claim in turn.

         II. Due Process Claim

         As an initial matter, plaintiffs' Complaint contains an allegation that plaintiffs were deprived of their property without due process of law. See Doc. #1 at 4. This claim was subject to a ruling on defendants' motion in limine and was excluded from trial, absent objection from plaintiffs. See Doc. #42. At that time, the Court explicitly stated: "The Court also notes that plaintiffs did not request any substantive jury instructions related to the Due Process claim, see Doc. #30-3, leading the Court to question whether this claim has been abandoned." Doc. #42.

         Indeed, plaintiffs did not include any discussion of this claim in their proposed Findings of Fact and Conclusions of Law. See Doc. #48. During the December 5, 2016, Pretrial Conference in this matter, counsel for plaintiffs confirmed that plaintiffs were pursuing an excessive force claim as to plaintiff Goff, and false arrest and malicious prosecution claims as to plaintiff Gibson. See Transcript of the December 5, 2016, Pre-Trial Conference at 8, lines 5-16 ("THE COURT: [W]e reviewed your proposed findings of fact and conclusions of law, and I want to make sure we are all on the same page about what the current claims are by each plaintiff in this case. So my read, Mr. Merly, was that Ms. Goff has only an excessive force case at this point, and Mr. Gibson has a false arrest and [a] malicious prosecution claim; is that right? MR. MERLY: That's correct, your Honor.") .

         The Court views this statement as an explicit abandonment of the Due Process claim. However, even "[w]here abandonment [of a claim] ... is not explicit but such an inference may be fairly drawn from the papers and circumstances viewed as a whole, district courts may conclude that abandonment was intended." Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014). Accordingly, based on the above, the Court deems plaintiffs' due process claim abandoned. See Bahrami v. Ketabchi, No. 05CV3829(RMB), 2009 WL 513790, at *10 (S.D.N.Y. Feb. 27, 2009) (deeming defendant's counterclaims abandoned because "because he failed to provide testimony or propose findings of fact or conclusions of law in support of his counterclaims"), aff'd, 365 F.App'x 266 (2d Cir. 2010); Abeles, Inc. v. Creekstone Farms Premium Beef, LLC, No. 0 6CV3 8 93(JFB)(AKT), 2010 WL 446042, at *1 n.5 (E.D.N.Y. Feb. 1, 2010) (same); Jett v. Ficara, No. 04CV9466(RMB) 2007 WL 2197834, at *2 n.l (S.D.N.Y. July 31, 2007) (deeming plaintiffs' claims for unfair competition abandoned "since plaintiffs' proposed findings of fact and conclusions of law do not address these ... two claims in any respect").

         III. Excessive Force, as to Plaintiff Goff

         "The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). "It is well established that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness." Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003) (quotation marks and citation omitted).

This objective standard allows for split-second judgments -- circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a given situation. It allows even for a certain degree of mistake. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.

Santana v. City of Hartford, 283 F.Supp.2d 720, 727 (D. Conn. 2003) (quotation marks and citations omitted).

         "Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (quotation marks and citation omitted). "In conducting that balancing, [the Court is] guided by consideration of at least three factors: (1) the nature and severity of the crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight." Tracy, 623 F.3d at 96 (citing Graham, 490 U.S. at 396). "If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe." Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987).

         Plaintiff Goff claims that she was subjected to excessive force during the course of her arrest. In determining whether Chivers' use of force was objectively reasonable, the Court considers the factors set forth in Graham, 490 U.S. at 396. First, the crime leading to Goff s arrest was relatively serious. Chivers reasonably believed that Goff was operating a vehicle while under the influence of drugs or alcohol. This is considered a "serious crime." Harwe v. Floyd, No. 3:09CV1027(MRK), 2011 WL 674024, at *16 (D. Conn. Feb. 17, 2011) (citing South Dakota v. Neville, 459 U.S. 553, 559 (1983)), aff'd, 545 F.App'x 20 (2d Cir. 2013). The Court also notes that no amount of force was employed by Chivers until after Goff actively resisted arrest. See Tracy, 623 F.3d at 98 (in analyzing whether use of force was reasonable under Graham, finding that the crime in question became "arguably more serious" when plaintiff resisted arrest).

         Second, the threat posed to the safety of Chivers, and to others, appeared immediate. See id. Chivers was alone, at night, on the side of a busy highway, and Goff was fighting Chivers' attempts to place her under arrest. See Tracy, 623 F.3d at 97 ("[T]he risk posed to officer safety appeared to be both real and imminent. It is uncontested that [the officer] was operating without back up on the side of a road at night and in bad weather. Accordingly, what appeared to be [plaintiff's] attempt to flee or fight back posed a potentially serious and imminent risk to [the officer's] safety.").

         Third, Goff was "actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Goff consistently failed to comply with Chivers' multiple orders. She physically resisted arrest, wrenching her arms away from Chivers' grasp several times. At trial, Goff admitted that --despite Chivers' orders -- she continued to move and did not stop until she was handcuffed, and that she did not cooperate with Chivers' efforts to arrest her. See Tr. 39, lines 18-23; 40, lines 4-7; 46, lines 2-4; 47, lines 11-14.

         On the night in question, Chivers found himself on the side of a busy highway, at night, without backup, with an individual whom he reasonably believed had committed a serious crime. That individual did not comply with his orders, and physically resisted his attempts to place her under arrest. It was objectively reasonable for Chivers to feel threatened in that situation, and to use force to gain control of Goff.

         The Court is mindful that

[t]he fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.

Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000) . Here, after Goff's several attempts to evade Chivers' grasp, it was reasonable for Chivers to push Goff against his vehicle to limit her movement and to gain control of the situation. In making this determination, the Court also considers what Chivers did not do to Goff: he did not make use of pepper spray or any other device to incapacitate her; he did not strike her or kick her; and he chose not bring her to the ground, because he did not want to put his weight on her and injure her. See Tr. 105, lines 1-6. Cf. Brown v. City of New York, 798 F.3d 94, 102-03 (2d Cir. 2015) (finding a question of fact as to whether force was excessive where two police officers brought plaintiff, a 120-pound woman, to the ground and twice sprayed her directly in the face with pepper spray for refusing to "submit to the easy application of handcuffs").

         Finally, while Goff apparently suffered injuries during the course of her arrest, the Court finds that said injuries are attributable to Goff's resistance, rather than Chivers' use of force.[5] Goff testified that her thumb was cut by Chivers' handcuffs; however, the Court credits the testimony of Chivers, who indicated that Goff cut her thumb on the front "push bumper" of the police cruiser in her attempt to evade Chivers. Goff also testified that Chivers pushed her head against the hood of the car, causing her to suffer a concussion, but the Court is persuaded both by Chivers' testimony and the video of the incident that reveals that Goff s head came into contact with the car hood while she was attempting to break free from Chivers' hold.

         Based on the foregoing, the Court concludes that plaintiff Goff has not proven by a preponderance of the evidence that the force used by defendant Chivers in effectuating her arrest was excessive. Accordingly, the Clerk is directed to enter judgment in favor of defendant Chivers with respect to plaintiff Goff's claim for the use of excessive force, in violation of 42 U.S.C. §1983.

         IV. False Arrest, as to Plaintiff Gibson

         A. Elements, Generally

         The elements of a claim for false arrest pursuant to section 1983 are dictated by state law. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003); see also Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004) ("In analyzing §1983 claims for unconstitutional false arrest, [the court] generally look[s] to the law of the state in which the arrest occurred."). "Under Connecticut law, false imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another." Russo v. City of Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007) (quotation marks and citation omitted).

         "In a false arrest action, Connecticut law places the burden of proving an unlawful arrest on the plaintiff." Russo, 479 F.3d at 203 (internal citations omitted); see also Davis, 364 F.3d at 433. "In order to establish a §1983 false arrest claim based on the Fourth Amendment right to be free from unreasonable seizures, a plaintiff must show: (1) the defendant intentionally arrested him or had him arrested; (2) the plaintiff was aware of the arrest; (3) there was no consent for the arrest; and (4) the arrest was not supported by probable cause." Marchand v. Simonson, 16 F.Supp.3d 97, 109 (D. Conn. 2014) (quotation marks and citation omitted). Further, in Connecticut, "favorable termination is an element of a section 1983 claim sounding in false imprisonment or false arrest." Miles v. City of Hartford, 445 F.App'x 379, 383 (2d Cir. 2011); see also Frey v. Maloney, 476 F.Supp.2d 141, 147-48 (D. Conn. 2007) .[6]

         The first three elements of false arrest, above, are not disputed. Plaintiff Gibson has established that defendant Chivers intentionally arrested him; Gibson was aware of his arrest; and Gibson did not consent to be arrested. Plaintiff has also established that the charges against him terminated favorably. Thus, the Court need only determine whether defendant Chivers had probable cause to arrest plaintiff Gibson.

         B. Probable Cause

         "In assessing whether an officer had probable cause for an arrest, a court must look at the totality of the circumstances." Marchand, 16 F.Supp.3d at 110 (quotation marks and citation omitted). Under federal law, "[p]robable cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) ("An officer has probable cause to arrest when in possession of facts sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense."). "Likewise, under Connecticut law, probable cause 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." Weinstock v. Wilk, 296 F.Supp.2d 241, 246 (D. Conn. 2003), adhered to on reconsideration, No. 3:02CV1326(PCD), 2004 WL 367618 (D. Conn. Feb. 25, 2004). "In determining whether the necessary quantum of evidence existed to support a finding of probable cause, the Court is required to evaluate the totality of the circumstances. In making this determination, the Court must consider those facts available to the officer at the time of the arrest." Reese v. Garcia, 115 F.Supp.2d 284, 290 (D. Conn. 2 000).

         "The 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." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quotation marks and citations omitted). Thus, "in Connecticut, a false arrest claim cannot lie when the challenged arrest was supported by probable cause." Russo, 479 F.3d at 203.

         In the instant matter, plaintiff Gibson has proven that defendant Chivers lacked probable cause to arrest plaintiff for the charge of Interfering with an Officer pursuant to section 53a-167a of the Connecticut General Statutes. That section provides, in relevant part:

A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of ...

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