United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT AND
MOTION TO APPOINT COUNSEL
A. BOLDEN UNITED STATES DISTRICT JUDGE.
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.
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.
following reasons, Mr. Orr's motion for summary judgment
is DENIED, and his motion for appointment of
counsel is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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).
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
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.