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Marshall v. City of Meriden

United States District Court, D. Connecticut

November 28, 2017

KERRY MARSHALL, Plaintiff,
v.
CITY OF MERIDEN, et al, Defendants.

          RULING RE: CROSS MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 166, 175 & 183)

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         The plaintiff, Kerry Marshall (“Marshall”), pro se, brings this action against the City of Meriden and several police officers--Chief Jeffry Cossette (“Jeffry Cossette”), Sergeant Robert Pekrul (“Pekrul”), Officer John Slezak (“Slezak”), Officer Evan Cossette (“Evan Cossette”), and former officer Tom Zakrzewski (“Zakrzewski”)--in their individual capacities. In his operative Second Amended Complaint (Doc. No. 77), Marshall alleges violations of his rights under the United States Constitution and the Connecticut Constitution in connection with an arrest that took place on November 5, 2010, pursuant to title 42, section 1983 of the United States Code, title 42, section 1985 of the United States Code, and article first, sections seven and nine of the Connecticut Constitution.[1]

         Three Motions for Summary Judgment are currently pending before the court: (1) a Motion for Summary Judgment filed by defendants City of Meriden, Jeffry Cossette, Pekrul, Slezak, and Zakrzewski (Doc. No. 166); (2) a Motion for Summary Judgment filed by defendant Evan Cossette (Doc. No. 175); and (3) a Cross-Motion for Summary Judgment filed by Marshall (Doc. No. 183).[2]

         For the reasons that follow, the Motion for Summary Judgment filed by defendants City of Meriden, Jeffrey Cossette, Pekrul, Slezak, and Zakrzewski (Doc. No. 166) is granted as to Counts One, Two, Five, Six, and Seven, and denied as to Counts Three and Four; the Motion for Summary Judgment filed by defendant Evan Cossette (Doc. No. 175) is granted; and the Cross-Motion for Summary Judgment filed by Marshall (Doc. No. 183) is denied.

         II. RELEVANT PROCEDURAL BACKGROUND

         This case arises from an arrest of Marshall by Meriden police officers on November 5, 2010. Marshall initiated this action by filing an initial Complaint (Doc. No. 1) on April 12, 2011. Marshall subsequently moved to stay the case pending the outcome of the criminal charges underlying the November 5, 2010 arrest. In lieu of a stay, this court issued an Order administratively closing this case pending the outcome of the criminal matter on August 25, 2011. (Doc. No. 31). On September 14, 2015, Marshall filed a Motion to Reopen the case (Doc. No. 38), which the court granted on November 4, 2015 (Doc. No. 45). Thereafter, on April 22, 2016, Marshall filed the operative Second Amended Complaint (“2d Am. Compl.”) (Doc. No. 77).

         On January 20, 2017, Marshall moved for the undersigned to recuse herself. Motion to Transfer / Disqualify / Recuse (Doc. No. 153). This court denied Marshall's Motion to Recuse on March 9, 2017 (Doc. No. 170), and on June 8, 2017, the Second Circuit dismissed Marshall's appeal of that Ruling for lack of jurisdiction, given that a final order had not been issued by this court in this case (Doc. No. 193).

         In the meantime, the defendants filed their Motions for Summary Judgment in March 2017 (Doc. Nos. 166 & 175), and Marshall filed a Cross-Motion for Summary Judgment / Objection to the Motions for Summary Judgment filed by the defendants (Doc. No. 183) on April 14, 2017.[3]

         III. FACTS[4]

         It is undisputed that shortly after 5:00 pm on November 5, 2010, Kerry Marshall pulled into the parking lot of a Cumberland Farms gas station on Broad Street in Meriden, Connecticut, and backed into a parking space. See Plaintiff's Local Rule 56(a)(1) Statement of Material Facts (“Pl.'s Statement of Facts) (Doc. No. 183-2) at ¶ 1. It is further undisputed that Officers Evan Cossette and Pekrul observed Marshall's car parked at the Cumberland Farms gas station. Defendant's Local Rule 56(a)(1) Statement of Material Facts A (“Def.'s Statement of Facts A”) (Doc. No. 169) at ¶ 7. Marshall alleges that the officers were following him based on a tracking device attached to his car, Affidavit of Kerry Marshall (“Marshall Aff.”) (Doc. No. 183-3) at ¶ 7, while the defendants allege that they were surveilling the Cumberland Farms gas station when Marshall drove in, Affidavit of Robert Pekrul (“Pekrul Aff.”) (Doc. No. 192-13) at ¶ 5.

         The defendants allege that the Cumberland Farms gas station was, at the time, a popular location for drug-dealing. Id. at ¶ 6. They further allege that drug buyers commonly “back into a parking space so that they have an unobstructed view of the parking lot.” Id. at ¶ 8. Marshall disputes both of these assertions. See, e.g., Plaintiff's Memorandum (“Pl.'s Mem.”) at 15.

         The defendants allege that Evan Cossette and Pekrul called a dispatcher and requested that the dispatcher run Marshall's license plate number through the Connecticut On-Line Law Enforcement Communications (“COLLECT”) system, a database of registration and insurance information. Def.'s Statement of Facts A at ¶¶ 10-12. The defendants allege that the search of the COLLECT system returned no results for Marshall's license plate number, thereby indicating to them that Marshall's car was neither registered with the State of Connecticut nor insured. See, e.g., id. at 13-14. Marshall alleges that his car was properly registered and insured on November 5, 2010, and that the defendants' statements that they called police dispatch and found information that he was not registered or insured is false. See Deposition of Kerry Marshall (“Marshall Dep.”) (Doc. No. 166-3) at 46 (asserting his car was registered on November 5, 2010); Plaintiff's Supplemental Response to Interrogatories (Doc. No. 192- 10) at 2-4 (asserting that his car was insured by Progressive Insurance by policy number 13837109-0 and registered in the State of Connecticut on November 5, 2010); Pl.'s Mem. (Doc. No. 183-1) at 21-22 (arguing that the defendants did not run a query with his license plate number on November 5, 2010).

         At approximately 5:15 pm, Evan Cossette and Pekrul approached Marshall's car. See Pl.'s Statement of Facts at ¶¶ 5-6. Although there is some dispute as to whether either of the officers identified themselves as police officers, compare Pl.'s Statement of Facts at ¶ 6 with Defendant Evan Cossette's Local Rule 56(a)(1) Statement of Material Facts (“Def.'s Statement of Facts B”) (Doc. No. 175-2) at ¶ 15, the parties agree that Marshall was asked to roll down his window and refused, that he was asked to open his door and he complied, and that he ultimately exited his car. Pl.'s Statement of Facts at ¶¶ 6, 8; Def.'s Statement of Facts B at ¶¶ 16-17. Marshall alleges that the officers refused to permit him to find his license and registration, Pl.'s Statement of Facts at ¶ 9, while the defendants allege that Marshall refused to do so, Def.'s Statement of Facts B at ¶ 20. The defendants state that Marshall was argumentative and tried to move away from the officers while they were attempting to arrest him. See Def.'s Statement of Facts B at ¶ 22. The defendants further assert that Marshall was so loud that he drew the attention of passersby and customers inside the Cumberland Farms gas station. Id. at ¶ 22. Marshall was eventually handcuffed and transported to the Meriden Police Station. Pl.'s Statement of Facts at ¶¶ 11-12; Def.'s Statement of Facts B at ¶ 23.

         Marshall was held at the Meriden Police Station for approximately forty-five minutes, where he was booked and searched by Zakrzewski. See Def.'s Statement of Facts A at ¶ 71; Pl.'s Statement of Facts at ¶¶ 12-25. His car was towed. Def.'s Statement of Facts A at ¶ 53. Although he eventually retrieved his car, his license plates had been removed and were not returned to him. Id.

         Marshall was charged with three violations and two misdemeanors: (1) motor vehicle misuse pursuant to Connecticut General Statutes section 14-147(c); (2) operating an unregistered motor vehicle pursuant to Connecticut General Statutes section 14-12(a); (3) failure to maintain minimum insurance pursuant to Connecticut General Statutes section 14-213b; (4) breach of peace pursuant to Connecticut General Statutes section 53a-181; and (5) interfering with an officer pursuant to Connecticut General Statutes section 53a-167a. See Defense Exhibit O (Doc. No. 166-19).

         Marshall filed a civilian complaint with the Meriden Police Department related to his November 5, 2010 arrest on November 10, 2010. See Exh. to 2d Am. Compl. (Doc. No. 77) at 34-36. On December 9, 2010, Meriden Police Sergeant Leonard Caponigro informed Marshall that, upon review of his allegations, the Meriden Police Department was dismissing his complaint as “Not Sustained.” See id. at 39.

         At the time of the November 5, 2010 arrest, Marshall was litigating a lawsuit against the Town of Middlefield and then-Middlefield Constable Scott Halligan for events arising from a brief detention of Marshall in his driveway by Halligan. See generally Case No. 3:17-CV-1009.

         IV. STANDARD OF LAW

         On a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that the party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 71-72 (2d Cir. 2016). Once the moving party has met its burden, in order to defeat the motion, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial, ” Anderson, 477 U.S. at 256, and present “such proof as would allow a reasonable juror to return a verdict in [its] favor, ” Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). “An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016).

         In assessing the record to determine whether there are disputed issues of material fact, the trial court must “resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought.” LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 175 (2d Cir. 1995). “Where it is clear that no rational finder of fact ‘could find in favor of the nonmoving party because the evidence to support its case is so slight, ' summary judgment should be granted.” F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). On the other hand, where “reasonable minds could differ as to the import of the evidence, ” the question must be left to the finder of fact. Cortes v. MTA N.Y. City Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)).

         V. DISCUSSION

         In his Second Amended Complaint, Marshall brings seven claims: (1) a false arrest claim pursuant to the Fourth Amendment and article first, sections seven and nine of the Connecticut Constitution against Evan Cossette and Pekrul; (2) an unlawful seizure claim pursuant to the Fourth Amendment against Evan Cossette and Pekrul; (3) an excessive force claim against Zakrzewski; (4) a failure to intervene claim against Slezak; (5) a spoliation of evidence claim against Zakrzewski and Slezak; (6) a retaliation claim against Evan Cossette, Pekrul, Zakrewski, and Slezak; and (7) a Monell claim against Jeffry Cossette. See generally 2d Am. Compl.

         The defendants have moved for summary judgment on all claims. See Mot. for Summary Judgment A (Doc. No. 166); Mot. for Summary Judgment B (Doc. No. 175). Marshall has cross-moved for summary judgment.[5] See Cross-Motion for Summary Judgment (Doc. No. 183). The court addresses each of the claims in turn.

         A. False Arrest (Count One)

         In his Second Amended Complaint, Marshall alleges that Evan Cossette and Pekrul falsely arrested him in violation of the Fourth Amendment as well as article first, sections seven and nine of the Connecticut Constitution. See 2d Am. Compl. at 8-10. The defendants argue that Evan Cossette and Pekrul had probable cause to arrest Marshall, and therefore did not violate Marshall's constitutional rights.

         1. False Arrest Pursuant to the Fourth Amendment

         The existence of probable cause to arrest is a complete defense to a false arrest claim pursuant to the Fourth Amendment. See Kent v. Katz, 312 F.3d 568, 573 (2d Cir. 2002); Colon v. Ludemann, 283 F.Supp.2d 747, 755 (D. Conn. 2003). In analyzing Fourth Amendment false arrest claims, federal courts typically look to the law of the state in which the arrest occurred. See Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). Under Connecticut law, the plaintiff bears the burden of proof as to the existence of probable cause. See id. (citing Beinhorn v. Saraceno, 23 Conn.App. 487, 491 (1990)); Zalaski v. City of Hartford, 704 F.Supp.2d 159, 169 (D. Conn. 2010).

         As noted in the Facts section, Marshall was charged with three violations and two misdemeanors, including operating an unregistered vehicle in violation of Connecticut General Statutes section 14-12(a), [6] and failure to maintain minimum insurance in violation of Connecticut General Statutes section 14-213b.[7] If officers have probable cause to arrest on any of the offenses charged, that is sufficient to defeat a false imprisonment claim. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (holding that if officers have probable cause for one of the charges that is sufficient to defeat a false arrest claim); see also Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“[An officer's] subjective reason for making [an] arrest need not be the criminal offense as to which the known facts provide probable cause.”).

         The defendants assert that they had probable cause to arrest Marshall based on the COLLECT inquiry they requested from dispatch before they approached Marshall's car, which indicated that Marshall's vehicle was neither registered nor insured.[8]Marshall vigorously contests both that he was not registered or insured on November 5, 2010, and that the officers ran a COLLECT search before approaching his car. See Marshall Dep. (Doc. No. 166-3) at 46 (asserting his car was registered on November 5, 2010); Plaintiff's Supplemental Response to Interrogatories (Doc. No. 192-10) at 2-4 (asserting that his car was insured by Progressive Insurance by policy number 13837109-0 and registered in the State of Connecticut on November 5, 2010); Pl.'s Mem. (Doc. No. 183-1) at 21-22 (arguing that the defendants did not run a query with his license plate number on November 5, 2010). However, Marshall has failed to provide any evidence to support his assertions that he was registered and insured and that the arresting officers did not run a COLLECT search before approaching his car.

         In contrast to Marshall's unsupported position that the defendants did not run a COLLECT query on November 5, 2010, and that his car was properly registered and insured, the defendants have provided a veritable mountain of evidence to show that a dispatcher did query Marshall's license plate number at 5:10 pm on November 5, 2010, that the query indicated that Marshall was not registered or insured, and that Marshall's vehicle was neither registered nor insured on the date in question. See, e.g., Pekrul Aff. (Doc. No. 192-13) at ¶¶ 10-14 (averring that Pekrul and Evan Cossette requested a COLLECT query of Marshall's license plate number and determined that he was neither registered nor insured); DMV Records (Doc. No. 192-8) at 3 (registration form showing that Marshall's registration expired on January 3, 2008); Deposition of Kimberly Lecco (Doc. No. 192-7) (DMV employee authenticating DMV records); Affidavit of Janeen Hoggett (Doc. No. 192-11) (Progressive Insurance employee swearing that Marshall's policy number 14837109-0 was canceled due to non-payment on November 11, 2006, and was not active on November 5, 2010); Progressive Insurance Records (Doc. No. 192-12) (reflecting that Marshall's policy was cancelled on November 11, 2006, for nonpayment); Affidavit of Megan Sparks (Doc. No. 192-15) (police dispatcher attesting that she ran the COLLECT search on Marshall license plate number at 5:10 pm on November 5, 2010); Deposition of Darryl Hayes (Doc. No. 192-16) at 19-20 (authenticating a COLLECT query issued at 5:10 pm on November 5, 2010, showing that Marshall's vehicle was not insured or registered on that date).

         “[I]f the [moving party] has made a properly supported motion [for summary judgment], the plaintiff may not respond simply with general attacks upon the defendant's credibility, but rather must identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden.” Crawford-El v. Britton, 523 U.S. 574, 600 (1998); see McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir. 1999) (“[G]eneral attacks upon the defendant's credibility are not sufficient to defeat a properly supported summary judgment motion.”). Because Marshall has failed to provide any evidence to support his position, he has failed to satisfy his burden with respect to the issue of probable cause, which is fatal to his claim of false arrest. In light of this conclusion, the court need not reach the defendants' additional arguments. Because there is no material issue of fact in dispute, the defendants' Motions for Summary Judgment are granted and Marshall's Cross-Motion for Summary Judgment is denied with respect to the false arrest claim.

         2. Connecticut Constitutional Claims

         In addition to his false arrest claim pursuant to the Fourth Amendment, Marshall invokes his rights pursuant to article first, sections seven and nine of the Connecticut Constitution. The Connecticut Supreme Court recognized that these provisions of the Connecticut Constitution provide a cause of action in Binette v. Sabo, 244 Conn. 23 (1998). The Binette plaintiffs, a married couple, alleged that the police unlawfully entered their home, pushed Ms. Binette into a wall and a table, repeatedly slammed Mr. Binette's head against a car, struck Mr. Binette in the head, and kicked him while he was on the ground experiencing an epileptic seizure. Id. at 26. In recognizing a tort action for money damages pursuant to ...


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