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Orr v. Waterbury Police Dep't

United States District Court, D. Connecticut

February 8, 2018

ANTHONY ORR, Plaintiff,
v.
WATERBURY POLICE DEP'T, ET AL., Defendants.

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO APPOINT COUNSEL

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         In April 2017, Anthony Orr (“Plaintiff”) sued the Waterbury Police Department and three of its employees, Sergeant Daniel Ferrucci, Officer Jeffrey Schmaling, and Officer Shea (together, “Defendants”), in Connecticut Superior Court. Pet. of Removal at 3, ECF No. 1. Mr. Orr claims that Defendants violated his Fourth Amendment protection against unreasonable seizures by arresting him without probable cause, assaulting him during the course of arrest, denying him medical care after the arrest, and maliciously prosecuting him for narcotics offenses, and he sued the officers under 42 U.S.C. § 1983. Id. at 7-8. On May 15, 2017, Defendants removed the case to this Court. Id. at 3-4.

         Mr. Orr now moves for summary judgment on his claims, arguing that there is no genuine issue of material facts with respect to his arrest and subsequent prosecution. Pl.'s Mot. Summ. J., ECF No. 11. Defendants opposed this motion. Defs.' Mem. in Opp'n to Mot. Summ. J. (“Defs.' Mem.”), ECF No. 14; Defs.' Local Rule 56(a)(2) Statement (“Defs.' L.R. 56(a)2 Stmt.”), ECF No. 16. Mr. Orr also filed a motion for appointment of pro bono counsel. Pl.'s Mot. Appoint Counsel, ECF No. 18.

         For the following reasons, Mr. Orr's motion for summary judgment is DENIED, and his motion for appointment of counsel is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On October 6, 2016, Mr. Orr allegedly visited an apartment in Waterbury, Connecticut, that belonged to his friend Markeysha Dennis. Pet. of Removal, Ex. A. (“Compl.”) ¶ 1, ECF No. 1. Mr. Orr alleges that he was waiting for Ms. Dennis's boyfriend to arrive and to pay him for dog-walking. Id. At one point, Mr. Orr went outside to talk with his girlfriend and another friend, Dudley Epps, and then went back inside the apartment. Id. ¶ 16. Mr. Orr alleges that he lit a cigarette and played video games, while waiting for Ms. Dennis's boyfriend to arrive. Id. ¶ 1.

         That same day, members of the Vice and Intelligence Division and Violent Crimes Unit of the Waterbury Police Department, including Defendants, were granted a search and seizure warrant for the apartment and for the person of Jermaine Robinson. Defs.' Ex. A (“Case Incident Report”), ECF No. 16-1 at 1, 7. Defendants did not have a search and seizure warrant for Mr. Orr. Pl.'s L.R. 56(a)(1) Stmt. ¶ 2. The officers set up surveillance in the area with a view of the front and rear of the apartment. Case Incident Report at 7.

         During the surveillance, one of the detectives observed Mr. Robinson walk to the rear of the building and engage in what the detective perceived to be a hand-to-hand drug transaction with individuals in a parked vehicle and then return to the apartment. Id. A short time later, surveillance officers observed Mr. Orr exit the same apartment with Mr. Robinson and engage in another drug transaction with occupants of another parked vehicle. Id. at 1, 7-8. Both Mr. Orr and Mr. Robinson then returned to the apartment. Id.

         The officers then decided to execute the warrant. Id. at 8. They approached the front door of the apartment wearing tactical uniforms with “POLICE” clearly displayed. Id. The officers knocked and announced their presence, and received no answer. Id. They entered the apartment and immediately saw Mr. Robinson stand up from the living room couch and run towards the rear of the apartment. Id. Before he reached the door, one officer tackled Mr. Robinson, and another handcuffed him. Id. The officers entered the second floor of the apartment, and again announced their presence and stated that they had a search warrant. Id. at 9; Compl. ¶¶ 4-5.

         Mr. Orr had been sitting on the living room couch when the officers entered. Compl. ¶ 2; Pl.'s L.R. 56(a)(1) Stmt. ¶ 3; Def.'s Ex. A at 2. According to Defendants, as officers chased Mr. Robinson towards the rear of the apartment, Mr. Orr rose from the couch and began to move towards the front door, ignoring Defendant Shea's verbal command to stop, which prompted Defendant Shea to shove him to the floor and place him under arrest. Defs.' Ex. A at 9; Shea Aff. at 2, ECF No. 16-2. Mr. Orr claims, however, that Defendant Shea shoved him off the couch, causing him to fall on the floor of the living room and get hurt. Compl. ¶ 7; see also Pl.'s Reply (“I deny receiving any verbal command [from] . . . Shea. I deny moving from my seat”). Mr. Orr claims that he then heard Defendant Ferrucci yell, “[A]rrest them all!” Compl. ¶ 9; Mot. Summ. J. at 2.

         After handcuffing Mr. Orr, Defendant Shea discovered a crack pipe on him. Compl. ¶ 10; Pl.'s L.R. 56(a)(1) Stmt. ¶ 6. Although Mr. Orr denies possessing any narcotics at the time, Compl. ¶ 10, Defendants Schmaling and Shea found $150 in cash and two brick-shaped bundles of a brown substance, which later tested positive as heroin, on a small table near the couch where Mr. Orr had been sitting. Schmaling Aff. ¶ 8, ECF No. 16-1; Shea Aff. ¶ 6. In the same room, the officers discovered a glass jar containing a green, plant-like substance, which later tested positive as marijuana. Schmaling Aff. ¶ 9; Shea Aff. ¶ 7. Mr. Orr claims that he had no knowledge of the items discovered in the room. Pl.'s Reply at 3.

         After the arrest, Mr. Orr was taken to Waterbury police headquarters where Defendants Shea and Schmaling interviewed him. Pl.'s L.R. 56(a)(1) Stmt. ¶¶ 7-8; Defs.' L.R. 56(a)(2) Stmt. ¶¶ 7-8. Mr. Orr would not provide a statement implicating Mr. Robinson. Pl.'s L.R. 56(a)(1) Stmt. ¶ 9; Defs.' L.R. 56(a)(2) Stmt. ¶ 9. According to Mr. Orr, Detectives Shea and Schmaling wanted him to give a statement that the narcotics in the apartment belonged to Mr. Robinson, but Mr. Orr refused. See Compl. ¶ 12. Mr. Orr alleges that this prompted Schmaling to lie in his police report and implicate Mr. Orr in Mr. Robinson's drug offenses. See Id. ¶ 17. Mr. Orr was charged with possession of one ounce or more of heroin, operating a drug factory, possession of narcotics with intent to sell, possession of less than one-half ounce of marijuana, and interfering with a search warrant. Defs.' Ex. A at 12. Those charges were later dismissed. Pl.'s Reply at 3.

         II. STANDARD OF REVIEW

         This opinion reviews two motions: Plaintiff's motion for summary judgment and Plaintiff's motion for appointment of counsel. In addition, the Court reviews a prisoner's civil complaint for any frivolous or malicious claims. Those three standards follow.

         First, under 28 U.S.C. § 1915A, the Court must review a prisoner's civil complaint and dismiss any portion of it that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Although detailed allegations are not required, the Complaint must include sufficient facts to afford Defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         Second, to prevail on a motion for summary judgment, the moving party must establish that there are no genuine issues of material fact in dispute and that the movant is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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); see also Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (explaining that mere existence of alleged factual dispute will not defeat summary judgment motion). The moving party may satisfy this burden by pointing out to the district court an absence of evidence to support the nonmoving party's case. See PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).

         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 Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). 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.; see also Atkinson v. Rinaldi, 3:15-cv-913 (DJS), 2016 WL 7234087, at *1 (D. Conn. Dec. 14, 2016) (holding nonmoving party must present evidence that would allow reasonable jury to find in his favor to defeat motion for summary judgment); Pelletier v. Armstrong, 3:99-cv-1559 (HBF), 2007 WL 685181, at *7 (D. ...


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