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Marsh v. Town of East Hartford

United States District Court, D. Connecticut

July 18, 2017

CLOVER MARSH, Plaintiff,



         This case arises out of an arrest that occurred at the scene of an accident in East Hartford, Connecticut. The plaintiff alleges that she was improperly placed under arrest for taking photographs of the accident scene and that she was subject to the use of excessive force during the course of that arrest. The defendants moved for summary judgment on all of plaintiff's claims except the claims of excessive force, assault, and battery.

         I. Standard of Review

         Summary judgment is appropriate when the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).

         When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

         “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is “merely colorable, ” or is not “significantly probative, ” summary judgment may be granted. Anderson, 477 U.S. at 249-50.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Id. at 247-48. To present a “genuine” issue of material fact, there must be contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.

         If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.

         II. Background

         On June 21, 2013, the plaintiff, Clover Marsh, was driving along Main Street in East Hartford, Connecticut (the “Town”), when she observed a motor vehicle accident. She immediately pulled her car over to the side of the street and began to render assistance at the accident scene. When emergency vehicles arrived, she and the other bystanders relocated to a grassy area from which they could observe the scene. There came a point in time when Marsh decided to leave her position at the grassy area. Marsh stated that she left both because she was going back to her car to leave the area and because she wanted to get a couple photos from an area in which she could better observe the scene. Marsh positioned herself immediately behind two fire trucks so that she could observe the accident scene by looking between them. At that point, Sergeant Peter Vanek, who had arrived at the scene and was performing his duties of securing the scene and managing the other officers, approached Marsh and instructed her to move from her position adjacent to the fire trucks. Marsh refused Vanek's commands that she leave the area. Instead, she persisted in trying to take photos and/or videos and attempted to explain why she was justified in staying in that location. Part of her justification was that the relevant “emergency” had ended because the accident victim had already been removed from the car and placed into the ambulance. Accordingly, in her eyes, the emergency situation had dissipated.

         During Vanek's interaction with Marsh, Vanek observed a firefighter who had been distracted by Marsh's refusal to comply with Vanek's orders. The firefighter, Robert Bidwell, also testified that he had been distracted by Marsh's conduct. At some point during the encounter with Vanek, Marsh held up her phone and told Vanek that she was recording him. Shortly after, Vanek placed Marsh under arrest for interfering with the police, in violation of Conn. Gen. Stat. § 53a-167a.

         As Vanek was placing Marsh into a police vehicle, Vanek handled her in a way that caused her to strike her head on the vehicle. Marsh stated that the impact caused everything to “go black” and caused her ears to ring. Eventually, she was taken to the hospital. Upon being released, she suffered from dizziness and needed assistance in order to be taken to her home. In the days following the event, she continued to suffer headaches and, after going to her own doctor, was diagnosed with a concussion.

         On May 31, 2016, Marsh filed this action in Connecticut Superior Court, Judicial District of Hartford. The action was removed on June 14, 2016, and an amended complaint was filed on November 16, 2016. The amended complaint alleges eleven causes of action. Count One alleges an excessive force claim against Vanek. Counts Two through Four allege false arrest, malicious prosecution, and retaliatory arrest claims against Vanek. Count Five alleges a claim for respondeat superior/municipal liability against the Town; the Chief of Police, Scott Sansom; and the former Chief of Police, Mark Sirois. Counts Six and Seven allege assault and battery claims against Vanek. Counts Eight and Nine allege recklessness and gross negligence claims against Vanek. Count Ten alleges an intentional infliction of emotional distress (“IIED”) claim against Vanek. And Count Eleven alleges a claim for indemnification by the Town for any damages caused by Vanek or other defendants. No motion to dismiss was filed, and on April 10, 2017, the defendants moved for summary judgment on all of her claims except the claims of excessive force, assault, and battery.

         III. Discussion

         The majority of Marsh's claims rely on her claim that she was arrested without probable cause. Accordingly, I will first consider whether there was probable cause to arrest her. After that, I will consider any remaining claims not resolved by that determination.

         A. Probable Cause

         The probable cause standard is the same under both Connecticut and federal law. Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007). An officer has probable cause to arrest an individual when the officer has “knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). In evaluating whether probable cause exists, the court must look at the “totality of the circumstances, ” see Illinois v. Gates, 462 U.S. 213, 233 (1983). Moreover, the court must base its assessment on objective facts and not an officer's subjective intent. Zellner, 494 F.3d at 369.

         Section 53a-167a provides that “[a] person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers” a police officer “in the performance of [the] officer's . . . duties.” Conn. Gen. Stat. § 53a-167a(a). Section 53a-167a “necessarily was drafted expansively to encompass a wide range of conduct that may be deemed to impede or hinder a police officer in the discharge of his or her official duties.” State v. Aloi, 280 Conn. 824, 837 (2007). “To ‘hinder' is defined as ‘to make slow or difficult the course or progress of.'” Id. Accordingly, the statute may be violated when an individual refuses to comply with a lawful direct order, and it is “that refusal that hinders or impedes” the performance of an officer's duties. Acevedo v. Sklarz, 553 F.Supp.2d 164, 168 (D. Conn. 2008); see also Lawson v. Hilderbrand, 88 F.Supp.3d 84, 99 (D. Conn. 2015), rev'd and remanded on other grounds, 642 F.App'x 34 (2d Cir. 2016).[1]

         To avoid constitutional infirmity, the Connecticut Supreme Court has construed section 53a-167a only to prohibit “physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.” State v. Williams, 205 Conn. 456, 473 (1987). Mere verbal conduct, such as “question[ing] a police officer's authority or protest[ing] [the officer's] action, ” is not prohibited under the statute. Id. at 472; see also Acevedo, 553 F.Supp.2d at ...

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