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Olschafskie v. Town of Enfield

United States District Court, D. Connecticut

September 27, 2017

AMIE OLSCHAFSKIE, Executrix of ESTATE OF TYLER DAMATO and AMIE OLSCHAFSKIE, individually, Plaintiffs,
v.
TOWN OF ENFIELD, et al., Defendants.

          RULING ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff Amy Olschafskie, individually and as executrix of the estate of her son Tyler D'Amato, brings this action against the Town of Enfield, the Enfield Police Department, Police Chief Carl Sferrazza, Officer Matthew Worden, Officer Jamie Yott, and two unnamed officers. Olschafskie's claims arise out of her allegations that the officer defendants used excessive force when they arrived at her home in December 2012 to transport D'Amato to the hospital, allegedly forcing him to the ground, hitting his head against asphalt, and tasing him. (ECF No. 1-1 at ¶¶ 17- 35.) I previously granted the defendants' motion to dismiss the claims against the officer defendants in their official capacities, and the plaintiff withdrew her claims against the Enfield Police Department. (ECF No. 62.)

         After discovery, the Town of Enfield, Chief Carl Sferrazza, and Officer Jaimie Yott move for summary judgment on all claims remaining against them. (Motion for Partial Summary Judgment, ECF No. 89.) Defendant Officer Worden moves for partial summary judgment on claims three (negligence), six (negligent infliction of emotional distress), eight (failure to intervene under § 1983), nine (failure to intervene under state law), eleven (wrongful death), and thirteen (bystander emotional distress). (ECF Nos. 90, 91.) For the reasons discussed below, the motions for summary judgment are GRANTED in part and DENIED in part.

         I. Background

         The following facts, taken from the parties' Local Rule 56(a) Statements (ECF Nos. 89-2, 96), affidavits, and exhibits, are undisputed unless otherwise noted. Additional facts are discussed in the analysis where relevant.

         Tyler D'Amato was Amie Olschafskie's son. (ECF No. 95-1 at 5.) He was twenty years old. (Id.) On August 26, 2012, D'Amato's cousin died. (Id. at 21.) Following this death, D'Amato experienced symptoms of depression, although Olschafskie stated that these symptoms were mitigated by December 2012. (Id.) On October 25, 2012, after an argument, the son of D'Amato's father's girlfriend hit D'Amato with a car. (Id. at 13-14.) Because of this accident, D'Amato suffered a traumatic brain injury. (Id. at 16-17, ECF No. 95-19.) The brain injury caused D'Amato to suffer from dizziness, headaches, problems with vision, short term memory problems, and mood swings (e.g., feeling “down” as well as “combative”) and to walk with a cane. (ECF No. 95-1 at 16-22.) He was treated for this injury at both St. Francis Hospital and the Mount Sinai Traumatic Brain Injury Clinic. (Id. at 19, ECF No. 95-19.) According to Olschafskie, D'Amato's symptoms from this injury had mostly dissipated by late December 2012. (ECF No. 89-2 at 21.)

         On December 25, 2012, D'Amato told Olschafskie that he was upset at the thought of spending Christmas without his cousin. (ECF No. 95-1 at 27.) He went to his girlfriend's house for a few hours during the day, but eventually her father asked him to leave. (Id. at 29.) Olschafskie's mother picked D'Amato up. (Id. 29-30.) They stopped at a gas station. (Id.) D'Amato got out of the car and refused to get back in. (Id.) Olschafskie's mother was concerned about D'Amato; she returned to Olschafskie's house and relayed her concerns to Olschafskie. (Id. at 30-31.) After that, D'Amato called Olschafskie and told her that he was walking in the road, near traffic. (ECF No. 95-1 at 31-34.) Olschafskie grew worried that D'Amato was suicidal after her phone conversations with him. (Id. at 34-35.) Olschafskie's friend, Matthew Orefice, went to pick up D'Amato and brought him back to Olschafskie's house. (Id. at 33.)

         In the meantime, Olschafskie's mother went to the Enfield Police Department (“EPD”) to request police assistance in hospitalizing D'Amato for emergency psychological evaluation. (ECF Nos. 89-2 at ¶1, 95-1 at 35-36, 96 at ¶ 1.) The EPD dispatched Officers Peterson, Taylor, and Worden to Olschafskie's house. (ECF Nos. 89-2 at ¶ 4; 96 at ¶ 4.) On their way, the sergeant with whom plaintiff's mother spoke called the officers to advise them that D'Amato walked with a cane and suffered from a brain injury. (Id.) Plaintiff and defendants agree that “Officer Yott was not present for, did not witness, and did not participate in any use of force on [D'Amato] on December 25, 2012.” (Id. at ¶ 26, ECF No. 89-2 at ¶ 26.)

         When the officers arrived at Olschafskie's house, she met them at the door and informed them that she was worried about D'Amato, gave them “a brief rundown of Tyler's day”, and said she wanted him taken to the hospital for psychiatric evaluation. (ECF 95-1 at 44.) Olschafskie “advised [Officer Worden] that [D'Amato] had a previous brain injury and that this was a medical call[, ] and we just wanted him transported to the hospital for observation. I stated five to ten times at least that he couldn't be jostled, he couldn't be handled roughly, he had left frontal lobe damage.” (Id. at 42.) As the officers arrived, an ambulance also arrived at Olschafskie's house; the ambulance staff waited outside. (Id. at 43-44.) D'Amato was upset that his mother wanted him to go to the hospital for a psychological evaluation. (Id. at 47.) The officers told D'Amato that “they were there and they had to make sure h[e was] ok, they couldn't leave just because he said he was ok[.]” (Id. at 46.) D'Amato asked Olschafskie if she thought that he was a risk to himself. (Id.) She “said that [she] did, [she] wanted him to be seen because [she] was worried about him, and he told [her] that he hated [her.]” (Id.; ECF No. 89-2 at ¶¶ 9-10.) D'Amato then became verbally belligerent, but “he wasn't irate or anything.” (ECF Nos. 95-1 at 47-48, 89-2 at ¶ 7.) D'Amato and Officer Worden had previously had an encounter at a traffic stop; although Officer Worden had allowed him to go without a citation, Officer Worden had pulled a gun on him. (Id. at 51-52.) Olschafskie stated that this made D'Amato wary of Officer Worden on December 25, 2012. (Id. at 52.) After a few minutes, D'Amato agreed to go with the officers. (Id. at 48.) But he asked to have a cigarette first. (Id.)

         D'Amato and the officers moved outside. (ECF Nos. 95-1 at 49, 89-2 at ¶ 11.) Once outside, D'Amato sat on a chair on the porch to smoke. (Id.; ECF No. 95-1 at 49.) Although the officers told her to stay inside, Olschafskie exited the house through the garage. (Id. at 52-53.) Once she exited the garage, she was standing “a few feet from D'Amato.” (Id. at 53.) After a short time passed, the officers told D'Amato it was time to go. (Id. at 54.) D'Amato rose and began walking to the ambulance. (Id. at 54-55; ECF No. 89-2 at ¶ 13.) He had his cigarette in one hand and his cane in the other. (Id. at ¶ 14; 95-1 at 54.)

         At this point, the plaintiff's and the defendants' versions of events diverge. The plaintiff states that D'Amato “only made it a couple of feet and then he dropped his cane.” (ECF No. 95-1 at 55.) He said “I'm going to pick up my cane[.]” (Id.) “He bent over to pick up his cane, and he was tased.” (Id. at 56.) The plaintiff stated that Officer Worden tased D'Amato, D'Amato fell to his knees, Officer Worden tased him again, and then “jumped on him.” (Id. at 56-62.) Olschafskie further stated in her deposition that Officer Worden then put his knee on D'Amato's “upper back area, right below the neck.” (Id. at 61.) Officer Worden “grabbed the back of [D'Amato]'s hair” and “proceeded to slam his head into the curb two or three times, ” such that his forehead struck the curb (Id. at 61-62.) Olschafskie briefly turned away in horror and called 911 on her cellphone. (Id. at 62-64.) The officers then lifted D'Amato and carried him to the ambulance, and he was transported to St. Francis Hospital. (Id. at 64-68.) Olschafskie said that she could not see what injuries D'Amato had sustained because she “couldn't get close enough to him, ” “it was dark, ” and then he was taken away. (Id. at 65.)

         The defendants offer a different version. According to them, D'Amato refused to put out his cigarette as the officers directed. (ECF No. 89-2 at ¶ 14; 89-5 at 2-3; 89-7 at 2-3.) They state that D'Amato then “bent down to grab his cane and . . . stood up rapidly and wielded the cane as if preparing to strike Officers Worden and Peterson[.]” (ECF No. 89-2 at ¶ 15.) Officer Worden tased D'Amato in the torso, incapacitating him. (Id. at ¶ 16.) They further claim that “Officers Worden and Peterson then attempted to gain control of [D'Amato]'s arms, but he resisted their efforts and concealed his right arm underneath his body on the ground.” (Id. at ¶ 17.) Because “[D'Amato] refused several commands from Officers Peterson and Worden to put his right arm behind his back[] and continued to resist their efforts to secure it, ” Officer Worden tased D'Amato again. (Id. at ¶ 18.) Officer Worden then searched D'Amato and put him in handcuffs, and D'Amato was “placed on a stretcher by EMT's and transported by ambulance from the scene to St. Francis Hospital[, ] pursuant to a Police Emergency Examination Request form prepared by Officer Peterson.” (Id. at ¶¶ 21-22; 89-5 at 3, 89-8.)

         Plaintiffs and defendants agree that D'Amato “was admitted to St. Francis at approximately 9:18 p.m. on December 25, 2012.” (ECF Nos. 89-2 at ¶ 28, 96 at ¶ 28.) The medical report from St. Francis states that D'Amato had taser marks on his “left lower abdomen and left lumbar region.” (ECF No. 89-13 at 3.) He also had an MRI that evening, and Olschafskie stated that doctors told her “they didn't see any additional bleeding on the brain[, ] but there was a brain injury.” (ECF No. 95-3 at 69.) She stated that none of the doctors present “said anything to corroborate . . . or contradict” whether the December 25, 2012 incident had aggravated D'Amato's existing traumatic brain injury. (Id.) D'Amato also had a toxicology test that night, which tested positive for cocaine, marijuana, benzodiazepine, and opiates.[1] Although the EMS report from D'Amato's transport stated that he faked a seizure (ECF No. 89-10 at 2), later medical reports suggest that he in fact did experience a seizure that night. (ECF No. 95-23 at 4-5.)

         On December 26, 2012, D'Amato was transferred “from St. Francis to the Mount Sinai Campus for involuntary psychiatric admission.” (ECF Nos. 89-2 at ¶ 35, 89-15 at 11, 96 at ¶ 35.) On December 27, 2012, D'Amato “underwent a psychiatric evaluation by Dr. Muhammad Munawar.” (ECF Nos. 89-2 at ¶ 36, 89-16, 95-23 at 4.) As a result of that evaluation, Dr. Munawar rated D'Amato a 30 on the 100-point Global Assessment of Functioning Scale and determined that his highest level of functioning in the past year had been a 51. (ECF Nos. 89-16 at 4; 95-18 at 21.)[2]

         The plaintiff asserted in her complaint that, because of Officer Worden's actions, D'Amato's brain injury worsened and his mood changed. The plaintiff related in her deposition how D'Amato, previously a very cautious driver, began driving recklessly-even drinking and driving. (ECF No. 95-1 at 82-87.) She stated that he was “like three different people”, referring to his personality before he was hit with the car in October 2012, his personality as he was recovering from that brain injury, and then his personality after the December 2012 incident. (ECF No. 95-1 at 92-93.)

         “On February 7, 2013, a motor vehicle [D'Amato] was driving in the parking lot of Holy Family Church in Enfield left the paved portion of the lot and struck a tree.” (ECF Nos. 89-2 at ¶ 40, 96 at ¶ 40.) He was in the car with his cousins, Derek Chase and Michael [D'Amato]. (ECF No. 95-1 at 88.) Tyler D'Amato “sustained critical injuries in the accident and died as a result . . . on February 8, 2013[.]” (ECF Nos. 89-2 at ¶ 40, 96 at ¶ 40.) His cousins survived. (ECF No. 95-1 at 91.) “A medical examiner from the Chief Medical Examiner's Office determined [D'Amato's] cause of death to be multiple blunt traumatic injuries from the accident.” (ECF Nos. 89-2 at ¶ 40, 89-18 at 11, 14-15, 96 at ¶ 40.) “As a result of [an] investigation, [Enfield Police Department] Officer [William] Vieweg determined that [D'Amato] was driving eighty-five (85) miles per hour at the time he lost control of the vehicle[.]” (ECF Nos. 89-2 at ¶¶ 42, 43, ECF No. 96 at ¶ 43.) The defendants submit that “[a]t the time Enfield police arrived at the scene of the accident, there was a strong odor of burnt marijuana emanating from [D'Amato's] vehicle.” (ECF No. 89-2 at ¶ 41.)[3]Olschafskie states that she did not know anything about the drug use and that she did not believe that the crash was purposeful; she stated that D'Amato would not have deliberately crashed the car with his cousins inside. (ECF No. 95-1 at 93.)

         Plaintiff's medical expert stated that “severe[, ] common symptoms of traumatic brain injury were documented in the medical record from doctors and other medical staff, as well as [Olschafskie's] deposition.” (ECF No. 95-9 at 17.) These included: dizziness, poor balance, headaches, visual problems, severe coordination problems, impaired concentration, poor judgment and insight, agitation, verbal outbursts, impaired self-control, irritability, mood changes, and risky behaviors. (Id.) Plaintiff's expert also stated that “the injuries caused by the violent actions of the Enfield police aggravated numerous symptoms of a preexisting traumatic brain injury[, ] and thus the medical harm caused by the police was a substantial factor in causing Tyler D['A]mato's car crash and death.” (Id. at 18.)

         In support of her Monell claim, Olschafskie has also presented evidence regarding the Enfield Police Department's handling of excessive force claims. She has submitted evidence detailing several use of force complaints made against Officer Worden, both before and after the December 25, 2012 incident, and an Enfield Police Department Memo regarding Department uses of force. (See ECF Nos. 95-2, 95-10, 95-11, 95-12, 95-13, 95-14, 95-15, 95-16.) The plaintiff never filed a complaint with the Department regarding the December 25, 2012 incident. (ECF Nos. 89-2 at ¶ 56, 96 at ¶ 56.) She also did not notify the Town of Enfield about her allegations of misconduct until October 21, 2014. (ECF Nos. 89-2 at ¶ 57, 96 at ¶ 57.) Once the Department received notice of Olschafskie's claims, it investigated the incident. (ECF No. 89-2 at ¶ 58, 89-23, IA #2015-00, 96 at ¶ 58.) Lieutenant Curtis attempted to interview civilian witnesses who were present at the scene of the incident, but they were either unavailable or refused to cooperate. (ECF No. 89-23 at 9.)[4]

         The defendants have submitted evidence that the officers involved and the EPD had undergone all necessary trainings and certifications: “As of December 25, 2012, the named defendant officers had received all of their state-mandated three year re-certification training”; “EPD was accredited by the Commission on Accreditation for Law Enforcement Agencies (CALEA)”; and “the EPD was also accredited by the Police Officer Standards and Training Council . . . the State of Connecticut's credentialing authority whose program is modeled after that of CALEA.” (ECF No. 89-2 at 9-10.)

         II. Standard of Review

         Summary judgment is appropriate only when “the movant shows 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). The moving parties-here, the officer defendants, the Town of Enfield, and Chief Sferrazza-bear the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). “The substantive law governing the case will identify those facts that are material, and only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (internal citations and alterations omitted).

         If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). The Court considers all facts “in the light most favorable to the nonmoving party”-here, the plaintiff-after drawing “all reasonable inferences in [her] favor.” Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000) (quotation marks omitted).

         III. Analysis

         A. Indemnification Claim

         In Count Fourteen of her complaint, the plaintiff alleges that, under Connecticut General Statutes § 7-465, “Defendant Town of Enfield is legally liable to pay” any damages owed to the plaintiff because of the defendant officers' and Chief Sferrazza's conduct. (ECF No. 1-1 at ¶ 58.) The Town of Enfield moves for summary judgment on this indemnification claim, arguing that it is untimely. I agree.

         Conn. Gen. Stat. § 7-465(a) states that notice of any such claim must be given within six months after such cause of action has accrued. Olschafskie did not comply with the notice requirement. She does not dispute that she did not serve the Town with notice of her indemnification claim until October 21, 2014. (ECF No. 95 at 29.) Because that was nearly two years after the December 25, 2012 incident, this notice was clearly not within the six-month deadline of § 7-465. Therefore, I GRANT the motion for summary judgment on the claim for indemnification of the Town of Enfield.

         B. Claims against Officer Yott

         Next, Defendant Officer Yott has moved for summary judgment on all claims brought against her. (ECF No. 89-1 at 10.) The parties do not dispute that Officer Yott was “not present for, did not witness, and did not participate in any use of force on D'Amato on December 25, 2012.” (ECF No. 89-2 at ¶ 26; ECF No. 96 at ¶ 26.) Because she was not present, she cannot be liable for any of the claims against her-all of which allegedly resulted from this incident. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). Therefore, I GRANT the motion for summary judgment on all claims against Officer Yott.

         C. Unnamed officers

         Counsel for the Town, Chief Sferrazza, and Officer Yott have also moved for summary judgment on all claims against the two unnamed defendants because they were not named, as required by Fed.R.Civ.P. 4(m), in a timely manner and because the applicable statute of limitations has run. (ECF No. 89-1 at 29.) In her opposition brief, Olschafskie states that “[t]he Defendants have identified Officers Peterson and Taylor as the John and Jane Doe Defendants on the scene. Plaintiff seeks the Court's leave, pursuant to Fed.R.Civ.P. 15 to substitute them as party-defendants for their failure to intervene to prevent the constitutional violation.” (ECF No. 95 at 33.) Olschafskie gives no explanation why she did not seek such leave earlier in the case and does not suggest that she made a mistake in failing to name Officers Peterson and Taylor as defendants earlier.

         The failure to intervene claims against the unnamed defendants-counts eight and nine of the complaint-are subject to a three-year statute of limitations. Conn. Gen. Stat. § 52-577; Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994) (holding that § 52-577 applies to § 1983 claims in Connecticut). Over three years have passed since December 25, 2012, so for Olschafskie to substitute Officers Peterson and Taylor, her amendment would need to relate back to the original date of filing under Fed.R.Civ.P. 15(c).

         Fed. R. Civ. P. 15(c) allows amendments to relate back to the date of the original pleading in certain circumstances, thereby allowing the addition of a party even after the relevant statute of limitations has run. But this rule allows for amendments in the case of mistake: it “does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities.” Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996). “Rule 15(c) explicitly allows the relation back of an amendment due to a ‘mistake' concerning the identity of the ...


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