United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
Michael P. Shea, U.S.D.J.
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).
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; 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.
Arrest of Gomez
following facts are taken from the parties' Local Rule
56(a) Statements 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).
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).
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.).
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. ¶¶
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).
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).
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).
Standard of Review
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 ...