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Brown v. Dirga

United States District Court, D. Connecticut

September 29, 2017

FRANKLIN BROWN, Plaintiff,
v.
OFFICER FREDRICK DIRGA Defendant.

          RULING ON MOTION FOR SUMMARY JUDGMENT

          Dominic J. Squatrito United States District Judge

         The plaintiff, Franklin Brown (“Brown”), currently resides in Middletown, Connecticut. He initiated this action by filing a complaint listing himself and Karen Rogala (“Rogala”) as plaintiffs and the Middletown Police Department, Middletown Police Officers Fredrick Dirga (“Dirga”) and John Doe, and Middletown Police Detective Del Mauro (“Del Mauro”) as defendants.

         On November 2, 2015, the court directed the Clerk to terminate Rogala as a plaintiff because she had not signed the complaint and dismissed all claims against the Middletown Police Department and John Doe, any claims asserted or relief requested on behalf Rogala, and the official capacity claims for money damages against Dirga and Del Mauro. See ECF No. 8. The court concluded that the Fourth Amendment excessive force and illegal search and seizure claims would proceed against defendants Dirga and Del Mauro in their individual capacities. See id.

         On May 10, 2016, during a status conference, the plaintiff orally moved to dismiss all claims against Del Mauro. See ECF No. 61. Magistrate Judge Merriam issued a recommended ruling granting the motion to dismiss with prejudice. See ECF No. 64. On June 8, 2016, the court affirmed, adopted and ratified the recommended ruling granting the motion to dismiss as to all claims against defendant Del Mauro. See ECF No. 71. Thus, Del Mauro has been dismissed from this action with prejudice.

         On September 19, 2016, Brown filed motions to amend the complaint and for joinder of claims and parties. See ECF Nos. 94, 95. He sought leave to add new claims of assault and battery and false arrest and to add the City of Middletown, Captain Patrick Howard, Chief William McKenna, Captain Wallace and Lieutenant Davis as new defendants. On October 4, 2016, the court denied both the motion to amend and the motion for joinder of parties and claims on the grounds that the addition of the new claims and defendants would be futile and would prejudice the remaining defendant and because the requests to add claims and defendants was unduly delayed. See ECF Nos. 103, 107.

         On October 7, 2016, Brown sought to voluntarily dismiss his claims against Dirga. See ECF No. 104. On November 10, 2016, the court denied the motion for voluntary dismissal. See ECF No. 108.

         Thus, the Fourth Amendment excessive force and illegal search and seizure claims as asserted in the complaint, ECF No. 1, remain pending against Dirga. On February 17, 2017, Dirga moved for summary judgment as to all claims against him. For the reasons set forth below, the motion is granted in part and denied in part.

         I. Standard of Review

         In a motion for summary judgment, the burden is on the moving party to establish that there is “no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and is “genuine” if “a reasonable jury could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         When a motion for summary judgment is supported by documentary evidence and sworn affidavits and “demonstrates the absence of a genuine issue of material fact, ” the nonmoving party must do more than vaguely assert the existence of some unspecified disputed material facts or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Services, Inc., 781 F.3d 42, 44 (2d Cir. 2015) (internal quotation marks omitted). Thus, the party opposing the motion for summary judgment “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.

         In reviewing the record, the court must “construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Gary Friedrich Enterprises, L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013). Summary judgment is improper if there is any evidence in the record from which a reasonable factual inference could be drawn in favor of the nonmoving party. See Security Insurance Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

         Where one party is proceeding pro se, the court reads the pro se party's papers liberally and interprets them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks omitted). Despite this liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact” and cannot overcome a properly supported motion for summary judgment. See Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts[1]

         At approximately 10:00 p.m. On October 14, 2013, Brown and his girlfriend, Rogala, boarded a bus at a Walmart store in Cromwell, Connecticut, and were dropped off at a bus stop on Main Street in Middletown, Connecticut. At that time Brown was in possession of crack cocaine which he had purchased earlier that day.

         After getting off the bus, Brown and Rogala walked along Main Street toward the intersection of Main Street and Liberty Street. Brown and Rogala used the crosswalk to cross Main Street and kept walking straight toward the street corner at the intersection of Main Street and Liberty Street.

         On October 14, 2013, Dirga was a Detective in the Middletown Police Department's Narcotics Unit. At about 10:00 p.m. on that date, Dirga, in an undercover capacity, was conducting surveillance in the area of Main and Liberty Streets in Middletown, Connecticut. He was parked in an unmarked GMC Envoy in an area close to the intersection of Main and Liberty Streets. Based on his knowledge, training and experience, Dirga knew that the Main Street-Liberty Street area was a high crime area and that many complaints had been made about the sales of narcotics, as well as prostitution and violent crimes, in that area.

         On the night of October 14, 2013, there were a number of illuminated streetlights in the area of Main and Liberty Streets. In addition, there were lights mounted on a building at the corner of Main and Liberty Streets which illuminated Liberty Street and there was ambient lighting from houses and businesses nearby.[2]

         Brown and Rogala passed several individuals on the corner of Main and Liberty Streets and continued to walk down Liberty Street. As Brown and Rogala proceeded down Liberty Street, an individual named Jeffrey Williams (“Williams”), also known as Charlie Brown, approached Brown and stated that he wanted to buy drugs. Brown indicated that he had no drugs and told Williams to move away from him. Williams became angry, swore at Brown, pulled out his cell phone and called Dirga's cell phone. Williams reported to Dirga that Brown was in the area of Main and Liberty Streets, was wearing a red shirt, and was selling narcotics. During Williams's conversation with Dirga, Brown continued to walk down Liberty Street with Rogala. Brown and Dirga stopped on Liberty Street near a red building and sat down on steps located next to that building.

         After receiving the call from Williams, Dirga drove his vehicle from where he was parked on Main Street to Liberty Street and parked near the red building on Liberty Street. Dirga knew that Brown had been arrested on multiple occasions for weapons and drug possession charges as well as other violent crimes. Dirga had been involved in some of Brown's prior arrests. Dirga used his police radio to call for backup. Detective Del Mauro was patrolling close to the area and responded to Dirga's call.

         When Dirga stopped his vehicle near the red building on Liberty Street, Brown observed that Dirga was a police officer, got up, and began walking away from Dirga down Liberty Street with Rogala. Dirga exited his vehicle. Brown recognized Dirga from previous interactions between himself and Dirga.

         Dirga stepped onto the sidewalk and walked around Brown so that he was standing in Brown's path of travel. Brown asked Dirga if he was under arrest and Dirga stated that he did not know but asked Brown to wait a minute. Brown claimed that he had not committed any crimes and began to walk away from Dirga down Liberty Street. Dirga asked Brown if he had anything illegal in his possession, but Brown did not respond and continued to walk down Liberty Street. Dirga then grabbed Brown's right arm, put it behind Brown's back and pushed Brown up against a car that was parked on Liberty Street. Brown tightened up a little, but did not pull his arm away. Dirga searched Brown and discovered crack cocaine in one of Brown's pockets. At some point after Dirga grabbed Brown's arm, Brown attempted to walk away.

         Detective Del Mauro arrived at the scene and grabbed Brown's left arm. Detective Del Mauro took Brown to the ground while Dirga was still holding onto Brown's right arm. According to Brown, Dirga “punch[ed] plaintiff several times” during this period.[3] Brown's Local Rule 56(a)2 Statement, Ex. 5, ECF No. 117 at 4. While Brown lay on his stomach, Detective Del Mauro and Dirga were able to handcuff Brown behind his back, ...


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