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Award v. Wisner

United States District Court, D. Connecticut

August 23, 2017

SCOTT WISNER, et al., Defendants.


          Dominic J. Squatrito United States District Judge

         The plaintiff, Sebastian Award (“Award”), commenced this civil rights action against State Police Troopers, Detective Scott Wisner (“Wisner”) and Sergeant Keith Graham (“Graham”). The plaintiff contends that the defendants used excessive force against him in the course of a police pursuit culminating in his arrest on April 8, 2013. The defendants have filed a motion for summary judgment. For the reasons that follow, defendants' motion is granted.

         I. Standard of Review

         A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy his burden “by showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence as would allow a jury to find in his favor to defeat the motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         The nonmoving party “must offer some hard evidence showing that its version of the events is not wholly fanciful.” D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).

         II. Facts[1]

         On April 8, 2013, Wisner heard a radio dispatch that officers from the Old Saybrook Police Department were engaged in a high speed chase with suspects in an armed robbery. Award was driving the suspects' car. He drove several miles on two-lane secondary roads through populated suburban areas at high rates of speed, at times in excess of 80 mph, and did not heed the lights and sirens of the pursuing police vehicles.

         Upon learning that the suspects were heading in his direction, Wisner, who was just completing his shift, decided to activate his siren and lights, pull onto the road in front of the suspects' car, and try to box them in with the pursuing police vehicles, thereby ending the pursuit. While waiting at the side of the road for the suspects to approach his location, Wisner placed his gun and holster on the seat between his legs.

         Wisner saw the suspects' car and police vehicles approaching and pulled onto the road in front of the suspects' car. Award tried to pass defendant Wisner's vehicle. At this time, Wisner was braking and Award was accelerating. The cars collided and the suspects' car drove up over the left rear of Wisner's vehicle. Both vehicles went off the road. The suspects' car flipped over and landed on the passenger side of the car. Wisner's vehicle remained upright. When they came to a stop, the front ends of the vehicles were touching, and the rear ends were a few feet apart, in a tight inverted v-shape. The sunroof of the suspects' car was facing the driver's window of Wisner's vehicle. The glass from the sunroof had broken during the crash and was no longer in place.

         Immediately following the crash, Wisner located his gun on the floor and bent over to retrieve it. While he was doing so, the passenger in the suspects' car fired several shots into Wisner's vehicle. One shot hit Wisner in the left arm and shoulder area. Another grazed his left ear. When Wisner unholstered his gun and sat up to return fire, he saw a man pointing a revolver at him through the sunroof of the suspects' car. The passenger had not been wearing a seat belt and was sitting on the passenger door looking out through the open sunroof. Wisner discharged seven of the nine bullets in his gun toward the man pointing the gun at him. One of the bullets hit the passenger in the chest, others hit his foot and ankle. One bullet struck Award, who was suspended in his seat belt, in the back. A large portion of that bullet remains lodged in Award's back.

         Graham was the first State Trooper to respond to the scene and the first person to approach the vehicles. As he left his vehicle he heard shots being fired. Graham approached the area between the two vehicles with his gun drawn and stood near the rear wheel of Wisner's vehicle. He was able to see into the suspects' car from his position and ordered the suspects to show their hands. Other State Troopers also had guns aimed at the suspects. Upon ascertaining that Wisner had been shot, Graham handed Wisner's gun to other troopers who then extracted Wisner from his vehicle through the passenger door and took him to a clinic for treatment of his gunshot wounds. Although Graham repeatedly ordered the passenger not to touch the revolver, which was located on the ground within his reach, the passenger picked up the revolver. Graham fired one shot from his gun which struck the passenger's right hand and broke the wooden butt of the revolver. The bullet fired by Graham was later located on the ground and matched with Graham's gun.

         The passenger was handcuffed and both suspects were removed from the car. Award was subsequently transported by helicopter to Hartford Hospital for medical care. The passenger was transported to a medical center where he was pronounced dead.

         III. Discussion

         In his complaint, the plaintiff alleges that the defendants used excessive force against him, defendant Wisner by ramming his car and forcing it off the road, and defendant Graham by shooting him in the back. On September 12, 2016, the plaintiff filed a document entitled “The Plaintiff's Alternative Statement of Claim” in which he purports to present an alternative claim pursuant to Rule 8(d), Fed.R.Civ.P. See ECF No. 79. Rule 8 sets forth rules for pleadings, i.e., the manner in which the claims should be presented in the complaint. Indeed, the section cited by the plaintiff requires that pleadings be concise and direct and permits alternative statements of a claim in the pleading. Fed.R.Civ.P. 8(d). The term “pleading” has a specific definition. Rule 7(a) provides that, as relevant here, only a complaint is a pleading. Fed.R.Civ.P. 7(a). Thus, if the plaintiff wanted to include an alternative statement of claim, he was required to amend his complaint. He did not do so. Thus, the plaintiff's alternative claim, that defendant Wisner ...

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