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Gomez v. City of Norwalk

United States District Court, D. Connecticut

February 8, 2018

PABLO GOMEZ Plaintiff,
CITY OF NORWALK, et al. Defendants.


          Michael P. Shea, U.S.D.J.

         I. Introduction

         Pablo Gomez brings this suit against various officers of the Norwalk Police Department-Paul Wargo, William Matsen, Luis Serrano, and Chief Thomas E. Kulhawik-, along with the City of Norwalk. Gomez claims that officers Wargo, Matsen, and Serrano (“officer defendants”) stopped him on false pretenses before using excessive force in arresting him. He makes the following claims: (i) deprivation of civil rights under 42 U.S.C. §1983 (count one); (ii) excessive force under 42 U.S.C. § 1983 (count two); (iii) unlawful search under 42 U.S.C. § 1983 (count three); (iv) “malicious abuse of process” under 42 U.S.C. § 1983 (count four); (v) municipal liability (count five); (vi) conspiracy to violate Gomez's civil rights (count six); (vii) assault and battery (count seven); (viii) negligent infliction of emotional distress (count eight); (ix) intentional infliction of emotional distress (count nine), and (x) negligence (only as to Chief Kulhawik and the City of Norwalk) (count ten).

         The Court previously granted the defendants' motion to dismiss the following portions of Gomez's claims: (i) all of the claims against the officer defendants and Chief Kulhawik in their official capacities in counts one, two, three, four, and six; (ii) the Monell claim against the City of Norwalk in count five;[1] and (iii) the negligence claim against the City of Norwalk and Chief Kulhawik in count ten. (ECF No. 46 at 1-2). Thus, the remaining claims are counts one through four, and six through nine. The defendants now move for summary judgment. (ECF No. 38). For the following reasons, the defendants' motion for summary judgment is hereby GRANTED IN PART AND DENIED IN PART.

         II. Factual Background

         a. Arrest of Gomez

         The following facts are taken from the parties' Local Rule 56(a) Statements[2] and the exhibits. The defendants' account of events, which is disputed, is as follows. (See note 2, supra). In the early morning of October 1, 2013, Officer Wargo was on patrol in South Norwalk, Connecticut. (ECF No. 38-1, Defendant's Local Rule 56(a)1 Statement (“Def.'s L.R. 56(a)1 Stmt.”) ¶ 1)). At that time Officer Wargo was in the area of Lexington Avenue near the intersection with Orlean Street, which he understood to be a “high crime area and ‘open air drug market' known for both walk up and drive up narcotic transactions.” (Def's L.R.56(a)1 Stmt. ¶ 2). He spotted “two males-one Black and the other Hispanic-standing at the intersection” and “covertly observed them and their activities.” (Def's L.R.56(a)1 Stmt. ¶ 4). From his covert vantage point, Officer Wargo observed the males “come into contact with a number of people who either walked or drove up to them.” (Def's L.R.56(a)1 Stmt. ¶ 5). After leaving to attend to another call, Officer Wargo returned to the intersection and saw the same “Hispanic Male” he had witnessed before (later identified as Gomez) now “conversing with another Hispanic Male” (later identified as Jeffrey Chanhom). (Def's L.R.56(a)1 Stmt. ¶¶ 6-7; Pl's Additional Material Facts (“Pl's AMF”) ¶ 1). At this point, “[Officer Wargo] determined that given the totality of the circumstances there was a reasonable suspicion that the original Hispanic Male . . . was engaged in the sale or purchase of Narcotics.” (Def's L.R.56(a)1 Stmt. ¶ 8).

         Officer Wargo eventually parked his cruiser nearby, approached the individuals, and began to question them “regarding their presence in the area and their activities.” (Def's L.R.56(a)1 Stmt. ¶¶ 9-11; Pl's AMF ¶ 2). What happened next is sharply disputed. Officer Wargo claims that Gomez “was belligerent and abrasive, ” (Def's L.R.56(a)1 Stmt. ¶ 13), which led Wargo to order Gomez to “place his hands on the back trunk of [Chanhom's car] and to remain in that position.” (Def's L.R. 56(a)1 Stmt. ¶ 16). Gomez denies this and avers instead that “Wargo grabbed [Gomez] and pushed him onto the trunk of [Chanhom's] car” shortly after asking Gomez for identification. (Pl.'s L.R. 56(a)2 Stmt. ¶ 16).

         At this point, Wargo had Gomez's identification card (“I.D.”) in his left hand and his flashlight in his right. (Def's L.R.56(a)1 Stmt. ¶¶ 24-25). He was holding the flashlight in an “overhand fashion (instead of a handshake manner).” (Def's L.R.56(a)1 Stmt. ¶ 27). Officer Wargo claims that at this point, “Gomez removed his left hand from the trunk of [Chanhom's] car, and swung it toward [Wargo].” (Def's L.R. 56(a)1 Stmt. ¶ 28). Gomez denies this account and claims that he “lifted his arm from the trunk of the car and looked over his left shoulder at Wargo to see what he was doing, ” being careful to avoid “making any sudden movements.” (Pl.'s L.R. 56(a)2 Stmt. ¶ 28). While Officer Wargo claims that he “guided Gomez back onto the trunk of [Chanhom's car] with his left hand, ” (Def's L.R. 56(a)1 Stmt. ¶ 29), Gomez claims that he “tried to slam [Gomez's] head and upper body onto the trunk several times with enough force to generate a ‘loud thump.'” (Pl.'s L.R. 56(a)2 Stmt. ¶ 29). Officer Wargo claims that at this point, “Gomez suddenly and without prior warning began to throw his right arm, elbow or shoulder back at Wargo causing him to push Gomez back toward the surface of the trunk”; in so doing, “the flashlight that was being held by Wargo in his right hand accidentally came into contact with [Gomez's] scalp causing a 3 [centimeter] cut in his scalp.” (Def.'s L.R. 56(a)1 Stmt. ¶¶ 28-30). Gomez claims that Officer Wargo intentionally “struck [him] on the head with a flashlight” immediately “[a]fter slamming [him] onto the trunk of the car.” (Pl.'s L.R. 56(a)2 Stmt. ¶¶ 30, 32). He also claims that Officer Wargo placed Gomez's wallet “on the trunk of Chanhom's car to free his hand and then grabbed his flashlight” to strike the plaintiff. (Pl's AMF ¶ 7.).

         Officers Matsen and Serrano arrived around the time of the incident. As the events leading up to the incident occurred, “Officer Matsen was in the general vicinity of where Wargo was questioning Gomez and [Chanhom].” (Def's L.R.56(a)1 Stmt. ¶ 33). Officer Matsen arrived upon the scene to find Officer Wargo conducting said questioning. (Def's L.R.56(a)1 Stmt. ¶¶ 35-36; Pl's AMF ¶¶ 7-8). The defendants claim that he stood near Chanhom, who was standing “toward the rear of his vehicle on the drivers' side.” (Def's L.R.56(a)1 Stmt. ¶ 39). “Gomez was at the rear of [Chanhom's vehicle] and to the opposite side of the car-the rear passenger's side near the trunk.” (Def's L.R.56(a)1 Stmt. ¶ 40). The parties disagree about whether Officer Matsen was within arm's length of Gomez when he was struck by the flashlight; Gomez states that Officer Matsen was “probably” within “arm's length” of him at the time while the defendants claim he was not. (Def's L.R.56(a)1 Stmt. ¶ 41). Officer Serrano had also arrived on the scene by the time Gomez was struck with the flashlight. (Def's L.R.56(a)1 Stmt. ¶¶ 51-53). The defendants claim that he observed the incident at a distance, however, and was not “in a position to prevent the incident from occurring.” (Def's L.R.56(a)1 Stmt. ¶¶ 54-55).

         Emergency Medical Personnel arrived at the scene after Gomez was struck and examined him. (Def's L.R.56(a)1 Stmt. ¶ 57). Their medical report noted their impression that “Gomez smelled of alcohol and [that he] had admitted to using alcohol that evening.” (Def's L.R.56(a)1 Stmt. ¶ 58). Eventually, “Serrano assisted Matsen in transporting Gomez to the Norwalk Hospital.” (Def's L.R.56(a)1 Stmt. ¶ 63). Gomez was “uncooperative” and “angry” at this point. (Def's L.R.56(a)1 Stmt. ¶ 66). He was ultimately “arrested and charged with ‘Use of Highways by Pedestrian' (in violation of [Conn. Gen. Stat. § 53-182]), Interfering with an Officer (in violation of [Conn. Gen. Stat. § 53a-167a]), and Breach of Peace 2nd (in violation of [Conn. Gen. Stat. § 53a-181]). He later [pleaded guilty] to Breach of Peace. . . .” (Def's L.R.56(a)1 Stmt. ¶ 67).

         Gomez later filed a civilian complaint with the Norwalk Police Department. (ECF No. 38-1 at 51). The complaint was eventually sent to Chief Kulhawik, who ordered Lieutenant Paul Vinett to conduct an internal investigation into the matter. (Id. at 56). Two months later, Lieutenant Vinett provided a report to Chief Kulhawik setting forth his finding that Officer Wargo “did not commit any acts which constitute a violation of the rules and regulations of the Norwalk Police Department of Police Service Manual and Directives.” (Id. at 58). In particular, he concluded that “Officer Wargo had no intention to cause injury during the detention and subsequent arrest, ” and that he had “responded quickly to an aggressive action committed by [Gomez] and appear[ed to have] used reasonable force to bring the incident under control.” (Id.). Chief Kulhawik reviewed Vinnett's findings and concurred with them; he then sent a letter to Gomez notifying him of the outcome of the investigation. (Id. at 63-64).

         b. Gomez's Complaint

         Gomez alleged in his complaint that Officer Wargo struck him after he asked why he was being stopped. (ECF No. 34 ¶ 33). He claimed that “[a]fter striking the Plaintiff in the head with the flashlight, [Officers Wargo and Matsen] proceeded to push him onto the car and handcuff him.” (Id. ¶ 34). He averred that as he was “bleeding profusely onto the vehicle trunk after his head was smashed open by the force of [Officer Wargo's] flashlight, . . . he became visibly upset, prompting [Officers Wargo and Matsen] to restrain, push and grab [him] after he was already injured.” (Id. ¶ 35). The complaint also alleged that Officer Serrano “assisted [Officers Wargo and Matsen] in physically restraining [Gomez] after he was [struck] and injured.” (Id. ¶ 36). The criminal charges against Gomez, according to his complaint, were filed “in an effort to provide a basis and/or explanation for why unlawful force was used upon [him].” (Id. ¶ 42). Gomez also alleged that the Officers colluded in fabricating their written reports of the incident “in an effort to conceal unlawful activity in which said Defendants were involved, to wit, in an illegal stop, search and/or seizure, and the use of excessive force upon the Plaintiff.” (Id. ¶ 43). This fabrication was aided, according to Gomez, by the knowing assistance of Chief Kulhawik. (Id. ¶ 79). Finally, Gomez stated that he suffered severe injuries from the incident, ranging from mental side effects such as post-traumatic stress and anxiety to ongoing physical symptoms such as headaches and blurred vision. (Id. ¶ 44).

         III. Standard of Review

         Summary judgment is appropriate only when the moving party “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). “A fact is material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). The moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in assessing the record to determine whether there is a genuine issue as to any material fact, the court ...

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