United States District Court, D. Connecticut
SHIRLEY R. GOFF and GREGORY S. GIBSON
JOSHUA CHIVERS, et al.
MEMORANDUM OF DECISION
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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].
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.
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.
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
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.
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.
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.
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.
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. 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.
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.
sergeant arrived at the scene and assisted Chivers in
handcuffing Goff, who was then placed in the police
cruiser. 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.
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.
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
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.
Due Process Claim
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.
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
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").
Excessive Force, as to Plaintiff
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
Santana v. City of Hartford, 283 F.Supp.2d 720, 727
(D. Conn. 2003) (quotation marks and citations omitted).
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
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).
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.").
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.
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.
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
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. 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'
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.
False Arrest, as to Plaintiff Gibson
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
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)
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
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).
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.
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 ...