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Jennings v. City of Bridgeport

United States District Court, D. Connecticut

February 20, 2018

HORACE E. JENNINGS, JR., et al. Plaintiffs,
CITY OF BRIDGEPORT, et al., Defendants.


          Michael P. Shea, U.S.D.J.

         On January 23, 2013, the Bridgeport Police and the Jennings family had an altercation at the Jennings' home. The incident ended with the officers arresting Horace and Margaret Jennings, along with their three sons, Bernard, Dennis, and Eric Jennings, on various charges and forcing entry into their home. The Jennings claim that the incident stemmed from one officer's effort to harass them while they were peacefully going about their evening, but the officers claim that the Jennings refused to comply with police orders, attacked them, resisted arrest, and threatened them.

         Despite numerous factual disputes about exactly what happened in an apparently fast-moving, chaotic situation, the parties have filed cross-motions for summary judgment. (ECF Nos. 27, 29, 30.) The defendants have moved for summary judgment on all claims except for the falsification of evidence claim, and the plaintiffs have cross-moved for summary judgment on their claims of false arrest, malicious prosecution, retaliatory arrest, and unlawful entry into curtilage. For the reasons that follow, the defendants' motion for summary judgment is GRANTED only as to (1) Horace's and Eric's claims of malicious prosecution and false arrest, (2) Bernard's, Margaret's, and Dennis's false arrest and malicious prosecution claims against all defendants other than Rivera, (3) the Jennings' Monell claim, (4) the Jennings' excessive force claim against all defendants except for Lynch, (5) Horace's and Margaret's First Amendment claims, and (6) Eric's, Bernard's, and Dennis's First Amendment claims against all defendants except for Rivera; the defendants' motion is otherwise DENIED, and the plaintiffs' motions for summary judgment are DENIED. Further, the plaintiffs' motion to amend the complaint, which was filed after the defendants had moved for summary judgment, is DENIED.

         I. Background

         A. Facts

         The following facts are taken from the parties' Local Rule 56(a) Statements. (ECF Nos. 27-19, 43-1). Additional facts are discussed in the analysis where relevant. The facts are undisputed unless stated otherwise.

         On January 23, 2013, Officers John Carrano and David Rivera and Sergeants Sean Lynch and William Simpson were employed as City of Bridgeport police officers. (ECF Nos. 27-19 at ¶ 1, 43-1 at ¶ 1.) At approximately 8:30 p.m. that night, Officers Carrano and Rivera were assigned to cover the east side of Bridgeport, and the officers were patrolling the area of Stillman Street and Pleasant Street. (ECF Nos. 27-19 at ¶¶ 2, 4, 43-1 at ¶ 2, 4.) It was approximately 10 degrees Fahrenheit outside. (ECF Nos. 27-19 at ¶ 3, 43-1 at 3.)

         The defendants claim that there had been “several robberies, burglaries[, ] and narcotic[s] activity” in this area (ECF No. 27-19 at ¶ 4), which the Jennings deny. The Jennings state that it was not an area that police patrolled. (ECF Nos. 43-1 at ¶ 4, 43-10 at 22-23 (Dennis stated in his deposition that the “area is pretty quiet. Everybody stays to themselves. It's like older families, ” and that the area was “the only area on Stillman that's not congested.”).) Officer Rivera stated that he had received at least two prior complaints of suspected criminal activity occurring in that area (ECF No. 27-19 at ¶ 5), but the Jennings object that they never received police reports from those incidents, despite asking for them. (ECF No. 43-1 at ¶ 5.) The defendants also state that this area was “a busier area with regard to people walking to and from a nearby corner convenience store.” (ECF No. 27-19 at ¶ 6.) The Jennings deny that people were walking in the area and state that only Dennis, Eric, and Bernard were on the street at that time. (ECF Nos. 43-1 at ¶ 6, 43-4 at ¶ 25.)[1]

         The Jennings' house sits on the corner of Pleasant Street and Stillman Street in Bridgeport. (ECF No. 43-7 at ¶ 4.) A chain link fence surrounds their property. It is about waist-high, encloses a small yard, and does not block the view into the yard from the street. (ECF No. 43-7 at 2, ¶ 5, 43-7 at 7, 9.) There is both a front door on Pleasant Street and a side door on Stillman Street. (Id.) Both have gates in the chain link fence in front of them and a short path leading up to a porch. (Id.) The police incident report states that the Jennings brothers were standing on Stillman Street when Rivera made contact with them. (ECF No. 27-3 at 3.) There is a streetlight on Stillman Street near the side entrance. (ECF No. 43-7 at ¶¶ 5, 6.)

         Officers Carrano and Rivera state that they saw Eric and Dennis on the sidewalk area of Stillman Street, stopped the patrol car to speak to them, began talking to them, and then requested that the brothers move onto their property. (ECF No. 27-19 at ¶¶ 7-8.) The Jennings claim that Rivera instead immediately began “yelling commands with expletives and initiating the confrontation.” (ECF No. 43-1 at ¶ 8, 43-11 at 4-5 (stating that Rivera yelled “You heard what I said. Get the ‘f' in the gate.”).) Dennis responded “why . . . we're not doing anything.” (ECF Nos. 27-19 at ¶ 9, 43-1 at ¶ 9.) Eric stated that the police were always “harassing [the Jennings]” and made a hand gesture at Rivera. (ECF Nos. 27-19 at ¶¶ 10-11, 43-1 at ¶¶ 10-11.) Rivera asked two or three times for Eric and Dennis to enter their property, and he stated that he observed “other people in the area come out of their house or stop on their way to or from the corner store.” (ECF No. 27-19 at ¶¶ 12-13.) The Jennings deny that other people were drawn outside by the incident and cite the cold weather as a reason they were not. (ECF No. 43-1 at ¶ 13.)

         Although Rivera states that Eric and Dennis then “continued to walk onto their property, ” he “determined that he was going to arrest Dennis” and was “able to walk with Dennis to the sidewalk area where he patted him down to make sure that [Dennis] was not armed and requested identification.” (ECF No. 27-19 at ¶¶ 14-16.) Dennis does not dispute that this happened, but he claims that it was not a valid arrest because he was exercising his First Amendment rights while complying with Rivera's request to go inside and that he was “on the steps” of the porch when Rivera grabbed him. (ECF No. 43-1 at ¶¶ 12-16.)

         While Rivera was interacting with Dennis, Eric went into the house and, subsequently, several other members of the Jennings family came outside. (ECF Nos. 27-19 at ¶ 17, 43-1 at ¶ 17.) When Horace exited the house, he “heard a lot of noise and saw his wife [Margaret] with his sons [Dennis and Bernard] at the fence yelling back and forth.” (ECF Nos. 27-19 at ¶¶ 18-19, 43-1 at ¶¶ 18-19.) Bernard stated to the officers, “What, ya'll bored or something? We wasn't doing nothing.” (ECF Nos. 27-19 at ¶ 20, 43-1 at ¶ 20.) When Rivera went to put Dennis into the patrol car, Horace approached Rivera to ask what was happening. (ECF Nos. 27-19 at ¶ 22, 43-1 at ¶ 22.) All of the male Jennings were “tall and heavyset, ” while Rivera and Carrano were “shorter and thinner in stature, ” (ECF Nos. 27-19 at ¶ 23, 43-1 at ¶ 23) but Rivera worked out, lifting weights. (ECF No 43-1 at ¶ 23.) Dennis was seated in the patrol car, with his feet hanging out. (ECF Nos. 27-19 at ¶ 29, 43-1 at ¶ 29.) Carrano was standing outside the gate. (ECF Nos. 27-19 at ¶ 31, 43-1 at ¶ 31.)

         Rivera claims that he advised Horace to step away (ECF No. 27-19 at ¶ 28), while Horace claims that Rivera kept yelling “[g]et the f*ck in the gate.” (ECF No. 43-1 at ¶ 28.) Rivera then requested backup units. (ECF Nos. 27-19 at ¶ 30, 43-1 at ¶ 30.) Lynch was patrolling downtown Bridgeport and received a call for assistance at 60 Pleasant Street. (ECF Nos. 27-19 at ¶ 35, 43-1 at ¶ 35.) Lynch claims that, when he arrived at Stillman and Pleasant streets, he “observed several males, a female, and other people congregating by the street.” (ECF No. 27-19 at ¶ 38.) The Jennings dispute that anyone else was outside at the time. (ECF No. 43-1 at 38.) Lynch also claims-and the Jennings do not dispute-that he observed “a lot of chaos, yelling, screaming [and] . . . the males were fairly large.” (ECF Nos. 27-19 at ¶ 41, 43-1 at ¶ 40.) He then requested additional backup. (ECF Nos. 27-19 at ¶ 40, 43-1 at ¶ 40.)

         The record is unclear as to what happened next. The defendants claim that, as Rivera approached the house, Horace grabbed him. (ECF No. 27-19 at ¶ 43, 27-3 at 3 (“As I[, Rivera, ] got close to the steps of the home[, ] Horace grabbed me by my left shoulder and left mid[]section, grabbing my duty belt near my Taser.”).) They state that it was “at this moment” that Lynch tased Horace. (ECF No. 27-3 at 3.) Lynch states that he tased Horace a second time “using a drive-stun technique” because the initial taser “did not appear to have good contact” and Horace was “still resisting.” (ECF Nos. 27-11 at 4, 27-19 at ¶ 44.) The Jennings dispute this account: they claim that Horace was instead back at the gate-after Rivera had told him to go back inside-bent over closing it, when he heard an officer yell “take that nigger down” and then felt himself being tased. (ECF No. 43-13 at 13-15.).

         In their Local Rule 56(a) statement, the defendants claim that after Horace was tased, Eric, who had gone back inside the Jennings' house after Rivera detained Dennis, yelled out the first floor window, “[y]o, what the hell? You can't shoot my father.” (ECF No. 27-19 at ¶ 46.) In the incident report, Rivera and Carrano stated that Eric threatened them from inside the house, saying “I'm going to kill both of you. You both are fucking dead. I'm going to light you guys up.” (ECF No. 27-3 at 3.) The Jennings instead claim that Eric, who had seen Lynch tase his father, stated “They shot Dad . . . I'm like, ‘You can't shoot my father'” (ECF No. 43-11 at 6), but it is unclear from his deposition testimony whether he shouted this out the window, said it only to Bernard, who was in the house with him, or, as plaintiffs' counsel suggests, was only “thinking” it. (See ECF No. 43-1 at ¶ 46; 43-11 at 6.) Rivera claims that he “perceived [Eric] to be a threat to his and the other officers' safety” because Eric “had a permit to carry a firearm and owned a firearm.” (ECF No. 27-19 at ¶ 47.) Eric does not dispute that, “a few weeks before this incident, ” he was a passenger in a car that the police stopped “because it matched the description of a vehicle that had been involved in a shooting” and, at that time, Eric was “found to be in possession of a firearm.” (ECF Nos. 27-19 at ¶ 48, 43-1 at ¶ 48.) Eric had a valid firearm permit. (Id.) Rivera informed Lynch of his safety concerns, and Lynch authorized the officers to force entry into the home. (ECF Nos. 27-19 at ¶ 51, 43-1 at ¶¶ 50, 51.)

         Meanwhile, Margaret had been told not to leave the porch but then was further advised that she could tend to Horace, after he was tased. (ECF Nos. 27-19 at ¶ 52, 43-1 at ¶ 52.) Further, an “unidentified officer” (who Margaret says was Rivera) asked Margaret to “check her husband's pockets to see if he had keys so that the officers could enter the house.” (ECF Nos. 27-19 at ¶ 53, 43-1 at ¶ 53.) While she did not find any keys, she “took his cell phone, some dollars and change out of his pocket before being handcuffed by Officer Lynch.” (ECF Nos. 27-19 at ¶ 53, 43-1 at ¶ 53.) By contrast, Rivera and Lynch state that Margaret was handcuffed because she directly disobeyed police orders, going through Horace's pockets and removing items as the defendants were taking him to an ambulance. (ECF No. 27-3 at 4, 27-11 at 9.) Margaret, for her part, claims that she only reached into Horace's pockets because Rivera repeatedly asked her to check them for the keys to the house. (ECF No. 43-12 at 9.)

         After Margaret was arrested, entry was “ultimately forced through the door.” (ECF Nos. 27-19 at ¶ 57, 43-1 at ¶ 57.) Officer Simpson did not arrive until after Dennis, Margaret, and Horace were detained. (ECF Nos. 27-19 at ¶ 58, 43-1 at ¶ 58.) He had no contact with Eric or Bernard, but he did enter the Jennings' home. (ECF Nos. 27-19 at ¶¶ 57-58, 4301 at ¶¶ 57-58.) The parties do not agree which officers entered the Jennings' house, but those officers advised the occupants to come downstairs. (ECF Nos. 27-19 at ¶ 59, 43-1 at ¶ 59.) Eric, Eric's girlfriend, and Bernard walked downstairs. (Id.) The officers then “conducted a protective sweep of the second floor.” (ECF Nos. 27-19 at ¶ 60, 43-1 at ¶ 60.) Carrano claims that he “observed a loaded firearm on top of a stereo speaker in plain view in a second floor bedroom.” (ECF Nos. 27-19 at ¶ 60, 27-6 at 5.) The Jennings claim that the gun was not in plain sight, and, instead, the officers kicked down Eric's and Bernard's bedroom doors, which had been locked. (ECF Nos. 43-1 at ¶ 61, 43-11 at ¶ 8.)

         In the end, the Jennings were all charged with violation of Conn. Gen. Stat. Sections 53a-181, breach of peace in the second degree, and 53a-167a, interfering with officers. (ECF Nos. 27-19 at ¶ 62, 43-1 at ¶ 62.) Eric was also charged with violation of Sections 29-37i, unsafe storage of a firearm, and 53a-61aa, threatening in the first degree. (ECF Nos. 27-19 at ¶ 63, 43-1 at ¶ 63.) Eric and Horace both pled no contest to violations of Section 53a-181a, for which the Connecticut Superior Court at Bridgeport found them guilty. (ECF Nos. 27-19 at ¶¶ 64-65, 43-1 at ¶¶ 64-65.) On June 5, 2013, the prosecution entered a nolle prosequi in each of Bernard's, Dennis's, and Margaret's criminal cases before the Connecticut Superior Court at Bridgeport. (ECF Nos. 27-19 at ¶¶ 66-68, 43-1 at ¶¶ 66-68.)

         B. Procedural History

         In their amended complaint, the Jennings allege nineteen federal and state law causes of action based on this incident: (1) Fourth Amendment false arrest; (2) Fourth Amendment malicious prosecution; (3) property damage; (4) freedom of speech; (5) retaliatory arrest; (6) fabrication of evidence; (7) excessive force; (8) failure to intervene; (9) unlawful entry into the curtilage; (10) unlawful entry into the home; (11) supervisory liability under Monell; (12) state law false arrest; (13) state law malicious prosecution; (14) malicious abuse of process; (15) & (16) battery; (17) intentional infliction of emotional distress; (18) violation of Conn. Gen. Stat. § 52-571c, and (19) indemnification under Conn. Gen. Stat. § 7-465. (ECF No. 17.)

         On April 13, 2017, the defendants filed a motion for summary judgment on all but one of the 19 counts of the plaintiffs' amended complaint, despite submitting a record replete with hotly disputed factual issues. (ECF No. 27.) The only claim on which the defendants do not move for summary judgment is the fabrication of evidence claim. (Id.) On April 15, 2017, the plaintiff's filed two motions for partial summary judgment on their claims for: (1) unlawful entry into the curtilage and (2) false arrest, malicious prosecution, freedom of speech, and retaliatory arrest. (ECF Nos. 29, 30.) On May 1, 2017, the Jennings filed a motion to amend their amended complaint, seeking to add several claims and clarify their failure to intervene claim. (ECF No. 35.)

         II. Motions for Summary Judgment

         A. Legal Standard

         Summary judgment is appropriate only when “the movant 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). The moving parties bear the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). “The substantive law governing the case will identify those facts that are material, and only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (internal citations and alterations omitted).

         If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). The Court considers all facts “in the light most favorable to the nonmoving part[ies]” after drawing “all reasonable inferences in [their] favor.” Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000) (quotation marks omitted).

         B. Analysis

         1. 42 U.S.C. Section 1983 Claims

         a. Fourth Amendment

         i. Malicious Prosecution

         The Jennings brought a malicious prosecution claim against all officer defendants, but they now have abandoned this claim as to Carrano, Lynch, and Simpson. (ECF No. 43 at 20.) Therefore, I GRANT summary judgment in favor of these defendants, and address only Rivera's motion and Bernard's and Dennis's cross-motion for summary judgment on this claim.

         “It is well settled that in order to prevail on a § 1983 claim against a state actor for malicious prosecution a plaintiff must show a violation of his [or her] rights under the Fourth Amendment and establish the elements of a malicious prosecution claim under state law.” Holman v. Cascio, 390 F.Supp.2d 120, 122 (D. Conn. 2005) (citing Fulyton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002)):

In Connecticut, the elements of a malicious prosecution claim are that (1) the defendant[s] initiated or procured the institution of criminal proceedings against the plaintiff[s]; (2) the criminal proceedings have terminated in favor of the plaintiff[s]; (3) the defendant[s] acted without probable cause; and (4) the defendant[s] acted with malice, primarily for a purpose other than that of bringing an offender to justice.

Turner v. Boyle, No. 3:13-cv-616 (SRU), 2015 WL 4393005, *16 (D. Conn. July 15, 2015) (citations and internal quotation marks omitted). It is not disputed that the Jennings were all charged with criminal violations. (ECF No. 27-19 at ¶¶ 62-68, 43-1 at ¶¶ 62-68.)

         1. Horace and Eric

         Because Horace and Eric pled “no contest” to violation of Conn. Gen. Stat. Section 53a-181a, for which they were found guilty by the court (ECF Nos. 27-19 at ¶¶ 64-65, 43-1 at ¶¶ 64- 65), their malicious prosecution claims fail. A plea of no contest along with a finding of guilt by the court does not meet the favorable termination requirement of a malicious prosecution claim. See Brown v. Catania, No. 3:06-cv-73 (PCD), 2007 WL 879081, *5 (D. Conn. Mar. 21, 2007). Therefore, I GRANT summary judgment in favor of the defendants on Horace's and Eric's malicious prosecution claims.

         2. Bernard, Dennis, and Margaret

         As for Bernard's, Margaret's, and Dennis's claims, there are issues of fact about whether the defendants had probable cause to charge them each with violation of Conn. Gen. Stat. Section 53a-167a, interfering with officers, and Section 53a-181, breach of peace. And, because the factfinder is permitted to infer malice from an arrest made when probable cause was lacking, there is also a disputed issue of material fact on this element.

         Courts analyze the probable cause element of a malicious prosecution claim as of the time that an officer initiates charges. See Lombardi v. Myers, 14-cv-1687 (VAB), 2016 WL 4445939, at *4 (D. Conn. Aug. 18, 2016) (citations omitted). A person is guilty of interfering with an officer “when such person obstructs, resists, hinders or endangers any peace officer . . . in the performance of such peace officer's . . . duties.” Conn. Gen. Stat. § 53a-167a. “The law prohibits any action that intentionally meddles in or hampers a police officer in the performance of her duties.” Ruttkamp v. De Los Reyes, No. 3:10-cv-392 (SRU), 2012 WL 3596064, at *6 (D. Conn. Aug. 20, 2012) (citing State v. Williams, 205 Conn. 456, 471-72 (1987)). But it is not illegal to “merely question[ ] a police officer's authority or protest [ ] his or her action.” Williams, 205 Conn. at 472. Instead, to the extent the statute applies to speech, it criminalizes only the use of “fighting words, ” or words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 473 (internal quotation marks omitted) (quoting Houston v. Hill, 482 U.S. 451, 461-62 (1987)). “[B]ecause police officers are expected to exercise a higher degree of restraint than the average citizen, [however, ] the type of ‘fighting words' that would violate this statute is narrower than under other actionable circumstances.” Ruttkamp, 2011 WL 3596064, at *6 (citing Williams, 205 Conn. at 474 n. 7).

         “A person is guilty of creating public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he [or she] (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by ...

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