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Fennelly v. Sharoh

United States District Court, D. Connecticut

March 19, 2018

JEFFREY J. FENNELLY, JR., Plaintiff,
v.
MARC SHAROH, Defendant.

          RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO. 28)

          Janet C. Hall United States District Judge

         The plaintiff, Jeffrey J. Fennelly, Jr. (“Fennelly”), currently incarcerated at Cheshire Correctional Institution in Cheshire, Connecticut, commenced this action by Complaint filed pro se pursuant to section 1983 of title 42 of the United States Code. The defendant is Waterbury Police Officer Marc Sharoh (“Sharoh”). Sharoh has filed a Motion for Summary Judgment, which, for the reasons that follow, is granted in part.

         I. STANDARD OF REVIEW

         A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; see also Redd v. New York Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012). The moving party may satisfy his burden “by showing- that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence as would allow a jury to find in his favor to defeat the motion for summary judgment. See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         The nonmoving party cannot “rely on conclusory allegations or unsubstantiated speculation, ” but “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation and internal quotation marks omitted). Although the court is required to read a self-represented party's papers liberally and interpret them to raise the strongest arguments that they suggest, see Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015), “unsupported allegations do not create a material issue of fact” and do not overcome a properly supported motion for summary judgment, Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2001). When reviewing the parties' submissions, the court need consider only admissible evidence. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).

         II. FACTS [1]

         At about 8:30 pm on May 13, 2016, Fennelly entered the Barleycorn Bar and Pub (“the Pub”). See Local Rule 56(a)1 Statement of Facts (“L.R. 56(a)1”) (Doc. No. 28-2) at 1 ¶ 1. Before arriving at the Pub, Fennelly had consumed alcoholic beverages, smoked a blunt of marijuana, and sniffed a couple lines of powdered cocaine. He described himself as “pretty messed up.” Id. ¶ 2. Fennelly had a cocaine habit. See Id. ¶ 3.

         Fennelly was at the Pub with his mother, sister, and girlfriend. See id. ¶ 6. At the Pub, Fennelly consumed two bottles of Bud Light and three shots of Jack Fire. He became heavily intoxicated. See id. ¶ 5.

         At about 9:00 pm, Fenelly's girlfriend went to the restroom. See id. ¶ 7. When she left the restroom, she immediately left the Pub. Fennelly followed her and saw her get into her car and drive away. See id. ¶ 8. Fennelly re-entered the Pub, but decided to go outside to smoke. In the parking lot, Fennelly began calling his girlfriend's name and asking her to return to bring the others home. See id. ¶ 9. While outside, Fennelly stumbled and walked backwards into a storefront window. He elbowed the window, suffering a laceration to his right elbow. See id. ¶ 10. Fennelly passed out in the parking lot. See id. ¶ 5.

         Shortly after midnight, Waterbury police officers were dispatched to the Pub. The owner had reported a white male kicking out windows near the old bank and hitting a female. See id. ¶ 11. The officers located a white male staggering and holding his right arm. The man matched the owner's description. See id. ¶ 12. The man was later identified as Fennelly. See id. ¶ 13. The officers observed blood over Fennelly's hands, arms, and shirt. See id. ¶ 14. He was intoxicated and told the officers that he had been ejected from the Pub. See id. ¶ 15. Fennelly also stated that he had cut and scraped his arm when he punched out a window because he was angry that he had been ejected from the Pub. See id. ¶ 16.

         An ambulance was called to transport Fennelly to the hospital. See id. ¶ 17. The ambulance arrived at the scene at 12:30 am on May 14, 2016. See id. ¶ 18. The ambulance attendants noted that Fennelly had a three centimeter cut on his right elbow, smelled of alcohol, was uncooperative, refused to answer questions, was verbally abusive, and threatened violence toward the police. See id. ¶ 19. The attendants noted no abnormalities of Fennelly's head, face, nose, neck, or eyes. See id. ¶ 20. Their impression was that Fennelly only suffered from a laceration of the right elbow. See Id. ¶ 21.

         Fennelly was taken to St. Mary's Hospital and was admitted at 12:53 am. See Id. ¶¶ 22-23. The admitting diagnosis and triage notes indicate only a laceration to the right elbow, caused by punching through a window. See id ¶¶ 24-25. Fennelly was agitated. See id ¶ 26. Hospital staff called a code gray, applied leather restraints, and administered medication. See id.

         Brian Morgan, a security officer employed by St. Mary's Hospital, was working in the emergency room on May 14, 2016. See id ¶¶ 27-28. He observed Fennelly talking and swearing loudly when he was brought into the emergency room. See id ¶ 29. At one point, Morgan was called to assist hospital staff and police officers in restraining Fennelly, who appeared to be under the influence of some substance. See id. ¶ 30. Along with other security officers and police officers, Morgan used force to apply the hospital restraints to Fennelly so he could be examined by a physician. See id. ¶¶ 31-32.

         Fennelly was intoxicated and belligerent. See id ¶ 33. He was unable to provide any history. See id Informed consent for treatment was deemed waived because Fennelly was clinically intoxicated. See id ¶ 35. Blood tests indicated an alcohol serum level of 292 mg/dl and were positive for cocaine and marijuana. Se ...


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