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Gomez v. City of Norwalk

United States District Court, D. Connecticut

July 17, 2017

PABLO GOMEZ Plaintiff,
v.
THE CITY OF NORWALK, et al. Defendants.

          RULING ON MOTION TO DISMISS

          Michael P. Shea, U.S.D.J.

         I. Introduction

         This action arises from an arrest of Plaintiff Pablo Gomez (“Plaintiff”) by Defendants Paul Wargo (“Wargo”), William Matsen (“Matsen”), and Luis Serrano (“Serrano”), officers of the Norwalk Police Department (collectively, the “Defendant Officers”). Plaintiff sues the Defendant Officers in both their official and individual capacities, the City of Norwalk, and the Norwalk Police Chief, Thomas E. Kulhawik (“Chief Kulhawik”), for violations of the federal constitution as well as state and common law. Specifically, Plaintiff claims: (i) deprivation of civil rights under 42 U.S.C. § 1983 (count one), (ii) excessive force under 42 U.S.C. § 1983 (count two), (iii) unlawful search 42 U.S.C. § 1983 (count three), (iv) “malicious abuse of process” under 42 U.S.C. § 1983 (count four), (v) municipal liability (count five), (vi) conspiracy (count six), (vii) assault and battery (count seven), (viii) negligent infliction of emotional distress (count eight), (ix)intentional infliction of emotional distress (count nine), and (x) negligence (count ten).

         Defendants have moved to dismiss portions of the amended complaint under Fed.R.Civ.P. 12(b)(6). They seek to dismiss: (i) all of Plaintiff's claims against the Defendant Officers in their official capacities in counts one, two, three, four, and six; (ii) the Monell claim against the City of Norwalk in count five; and (iii) the negligence claim against the City of Norwalk and Chief Kulhawik in count ten.[1]

         As more fully explained below, I grant to the motion to dismiss because: (i) Plaintiff has failed to allege a plausible Monell claim and, therefore, his claim against the City of Norwalk in count five and the claims against the Defendant Officers in their official capacities in counts one, two, three, four, and six fail; and (ii) the negligence claim in count ten against the City of Norwalk and Chief Kulhawik is barred by governmental immunity.

         II. The Amended Complaint

         The following facts are taken from the amended complaint and are accepted as true for the purpose of deciding Defendants' motion to dismiss.

         A. Factual Allegations

         On October 1, 2013, upon seeing Plaintiff conversing with his cousin on the side of the road, Wargo stopped his police vehicle, exited, asked the two men for their identification, and inquired what they were doing. (ECF No. 34 at 5.)[2] Plaintiff showed Wargo his identification and requested to know why he was being questioned, at which time Plaintiff was “instructed to do what he was told.” (Id.) Plaintiff informed Wargo that he and his cousin were talking and smoking a cigarette; he asked why Wargo was “harassing” him. (Id.) At this time, Wargo directed Plaintiff to place his hands on the trunk of the cousin's vehicle and then he searched the Plaintiff. (Id.) After examining the Plaintiff's identification and discerning his address, Wargo instructed the Plaintiff to tell him the location of Cardinal Street. (Id.) Plaintiff responded that “he could find Cardinal Street without his assistance.” (Id. at 6.) He then “turned around removing one hand from the trunk of the car and asked again why he was being harassed, and searched for no reason.” (Id.) Wargo responded, “keep your hands on the fucking car.” (Id.) Plaintiff proceeded to remove his hands from the car, turned around and asked again “why am I being stopped;” immediately thereafter, Wargo “struck him in the head with a flashlight, ” causing Plaintiff to suffer injury to the right side of his head, which required emergency care and 9 surgical staples. (Id.)

         Wargo and Matsen then pushed Plaintiff onto the car and handcuffed him, whereupon Plaintiff, who was profusely bleeding, “became visibly upset, ” inducing Wargo and Matsen to grab, push and restrain the injured Plaintiff. (Id.) Plaintiff alleges, “upon information and belief, ” that Serrano helped Wargo and Matsen restrain the Plaintiff after he was hit with the flashlight. (Id.) Matsen and Serrano escorted Plaintiff to the hospital. (Id.) Also upon information and belief, Plaintiff asserts that Wargo confronted him “without probable cause, and based upon profiling or at best, mere suspicion.” (Id. at 7.) Plaintiff further contends upon information and belief that Defendant Officers charged him and falsified their reports to provide an explanation for and conceal their use of unlawful force. (Id.)

         B. Municipal Liability and Negligence Allegations

         Plaintiff asserts that the Defendant Officers' acts were done in accordance with the customs and rules of the City of Norwalk and the Police Department, and occurred under the supervision of Chief Kulhawik, who was acting in his capacity as a police officer. (Id. at 12.) Further, the “customs, policies, usages, practices, procedures and rules” of the City and the Police Department “constituted a deliberate indifference to the safety, well-being and constitutional rights of the Plaintiff, ” and were the “direct and proximate cause of, ” as well as the “moving force behind the constitutional violation suffered by the Plaintiff . . . .” (Id. at 12.) In addition, the City and Chief Kulhawik “acquiesced in a pattern of unconstitutional conduct by subordinate police officers.” (Id. at 13). Plaintiff alleges the City and Chief Kulhawik are therefore responsible for the Defendant Officers' violations of the Plaintiff's rights. (Id.)

         Plaintiff further contends his injuries were caused by the City's and/or Chief Kulhawik's negligence in failing to: “properly train the individual Defendants with regard to the proper use of force” and “the proper use of flashlights;” “assist the individual Defendants in the safe performance of their duties;” adequately investigate individual defendants for behavioral issues prior to hiring; “properly supervise” the chief and the individual defendants respecting the circumstances under consideration; properly train Chief Kulhawik; “enforce the law as it existed;” “prevent its police officers from committing illegal actions when it knew or should have known such actions were taking place;” and “make any meaningful investigation into charges that its police officers were repeatedly violating its citizen's constitutional rights, ” despite being repeatedly put on notice of such conduct. (Id. at 17-18.) Moreover, he alleges that the City and/or Chief Kulhawik negligently “participated in customs that [led] to violations of individual constitutional rights;” “acted with deliberate indifference to the constitutional rights of others;” and “upon information and belief” “hired Defendant(s) [who] had a history of problems and violence.” (Id. at 18.)

         III. ...


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