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Alvia v. City of Waterbury

United States District Court, D. Connecticut

March 31, 2018

DAVID L. ALVIA, Plaintiff,


          Robert N. Chatigny United States District Judge.

         Plaintiff David L. Alvia brings this action under 42 U.S.C. § 1983 against the City of Waterbury and the following members of the Police Department (“WPD”): Chief Vernon Riddick, Officer Thomas Strachan, Officer Matthew Lennon, and Officer Michael Sabol. Plaintiff claims that Officers Sabol and Lennon used excessive force in effecting his arrest, in violation of his rights under the United States and Connecticut Constitutions. He also brings federal and state law false arrest and malicious prosecution claims against Officer Strachan, and state law claims for battery, intentional infliction of emotional distress (“IIED”), negligence, and hate crimes against various defendants. He claims that the City and Chief Riddick are liable under § 1983 and in negligence for failing to train and supervise Officers Sabol and Lennon, and that the City is liable under state statutes for other claims. Defendants move for summary judgment on all but the excessive force claims against Officers Sabol and Lennon. For reasons explained below, the motion is granted as to all claims of false arrest, malicious prosecution, and excessive force under the Connecticut Constitution; granted as to all claims against Chief Riddick and Officer Strachan; granted as to the municipal liability and negligence claims against the City related to supervising, training, and hiring officers; and denied as to the other claims.

         I. Background

         The record shows the following. On June 25, 2012, plaintiff was a passenger in a vehicle operated by Peter Haskell. While the vehicle was stopped at a red light, Officer Strachan and non-defendant Officer Jeffrey Arroyo pulled up alongside the vehicle in a police cruiser. Officer Strachan signaled Haskell to roll down his window, and Haskell complied. Officer Strachan smelled burnt marijuana and asked Haskell if he had been smoking. Haskell admitted that he had.[1]According to defendants, Officer Strachan then told Haskell to pull over to the side of the road. Plaintiff disputes this account, but does not dispute that when the light turned green, Haskell took off and entered an interstate highway. The officers turned on the police cruiser's overhead lights and followed Haskell, who drove at a “high rate of speed.” Eventually, Haskell exited the highway and parked the vehicle. Around this time, another group of police officers, including Officers Sabol and Lennon, arrived. Haskell and plaintiff ran into a wooded area and the officers chased them. Officers Strachan and Arroyo, who had lost sight of Haskell's vehicle on the highway, eventually found the vehicle and followed everyone into the wooded area.

         It is undisputed that Officer Sabol found plaintiff in the wooded area and, at some point, punched him in the face with a closed fist. According to plaintiff, when he saw Officer Sabol approaching, he stopped fleeing and put his hands in the air. Officer Sabol then punched him in the face, and Officers Sabol, Lennon, and possibly others threw him around and beat him with their hands and feet before handcuffing him. As he was being escorted out of the woods, officers called him Mexican slurs and either Sabol or Lennon stated, “You're a Mexican crybaby and probably illegal; no one give's a shit about you.”[2] According to Officer Sabol, plaintiff continued to flee when he approached, so he grabbed plaintiff's right arm and plaintiff resisted. He punched plaintiff in the face to “gain pain compliance, ” and then quickly took plaintiff to the ground. Officer Lennon arrived and placed a knee across plaintiff's back to assist in handcuffing him.After being placed in a police cruiser, plaintiff asked to be brought to a hospital. According to plaintiff, the officers laughed at his request. At some point, apparently after being brought to the station, someone did bring him to a hospital. A CT scan revealed multiple fractures of plaintiff's jaw, which eventually required a closed reduction surgical procedure. Later that night, Officer Strachan filed a charge against plaintiff for “interfering with a police officer.” See Conn. Gen. Stat. § 53a-167a. He spent a night in jail and was released the next day without a bond. The charge was nolled about six months later, on December 11, 2012.

         After the arrest, Officer Sabol filled out an outdated version of the WPD's “Response to Resistance” form, also known as a “Use of Force” form, describing the incident. Per WPD policy, the circumstances surrounding use of force must be reviewed by several layers of supervisors, including a Sergeant, Lieutenant, Division Commander, and Bureau Commander. Sabol's supervising Sergeant, Lieutenant, and Division Commander reviewed the report and determined that Sabol's “response to resistance [was] within [WPD] policy and procedure.” None recommended discipline. Contrary to the stated policy, no Bureau Commander appears to have reviewed the report.

         Immediately after his release, plaintiff filed a citizen's complaint regarding Officer Sabol's use of force. About a week later, plaintiff was interviewed by the Waterbury Police Internal Affairs (“IA”) division as part of an IA investigation into the incident. Eventually, Officer Sabol was cleared of any wrongdoing and not disciplined. Chief of Police Riddick had final review authority over internal affairs investigations.

         Prior to the incident involving plaintiff, Officer Sabol had been terminated due to off-duty misconduct. During a party at Sabol's home in 2004, he and several other off-duty officers were involved in a physical altercation. Sabol beat and restrained an individual, causing him to lose consciousness and suffer injuries requiring a hospital visit. Sabol was terminated for violating WPD rules and later entered a nolo contendre plea to two counts of assault. In 2008, he was reinstated without back pay after the police union filed a grievance on his behalf. In 2016, he received a pardon from the State of Connecticut.

         Prior to the incident at issue here, Officer Sabol also had been the subject of two IA investigations involving on-duty conduct.[3] Neither resulted in a finding of wrongdoing. Records of the investigations have been destroyed pursuant to the WPD's document retention policies, and nothing in the record sheds light on what led to the complaints.

         Plaintiff has retained an expert on police practices named Richard Rivera. Rivera produced several reports opining on the incident involving plaintiff as well as the WPD's general procedures, policies, practices, and training related to the use of force. According to Rivera, the WPD failed to train officers in “state of the art use of force and de-escalation techniques.” He also found numerous systemic problems related to how the WPD investigated complaints: accepting “joint narratives” in use of force investigations; occasionally failing to conduct routine reviews of use of force reports; failing to fully enforce WPD standards regarding reporting and IA auditing; and failing to implement an “early warning system.” Relying on deposition testimony in another case against the City of Waterbury, [4] he identified 68 complaints of excessive force against officers between 2005 and 2010.[5] Of these, none were “sustained” and 46 listed “no outcome, ”[6] results inconsistent with data from other police departments.

         II. Discussion

         Defendants move for summary judgment on all but the excessive force claims against Officers Sabol and Lennon. Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To avoid summary judgment, the non-moving party must point to evidence that would permit a jury to return a verdict in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether this standard is met, the evidence must be viewed in the light most favorable to the non- moving party. Id. at 255.

         A. Count 4: Municipal & Supervisor Liability

         Plaintiff claims that Chief Riddick and the City should be liable for the allegedly excessive use of force during his arrest. A defendant may be liable under section 1983 if he, acting “under color of any statute, ordinance, regulation, custom, or usage of any State . . ., subjects or causes [a plaintiff] to be subjected” to a constitutional deprivation. 42 U.S.C. § 1983. To hold a municipality liable, a plaintiff must show that “the alleged unlawful action implemented or was executed pursuant to a governmental policy or custom.” See Reynolds v. Giuliani, 506 F.3d 183, 190-91 (2d Cir. 2007) (2d Cir. 2008) (citing Monell v. Dep't Social Servs. City of New York, 436 U.S. 658, 695 (1978)). Absent an express written policy, it suffices to show that an injury was caused by a municipal officer responsible for establishing final policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). To hold a supervisor liable for a subordinate's actions, a plaintiff must show that the supervisor was “personal involved, ” via “direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

         Plaintiff's constitutional claims against Chief Riddick and the City are based on their alleged failure to adequately train or supervise Officers Sabol and Lennon. To support either claim, plaintiff must show that defendants' failure to act amounted to “deliberate indifference to the rights of persons with whom the police came in contact.” Reynolds, 506 F.3d at 192. Deliberate indifference is a “stringent standard of fault”: the “operative inquiry is whether th[e] facts demonstrate that the policymaker's inaction was the result of ‘conscious choice' and not ‘mere negligence.'” Cash v. Cty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011) (citations omitted).

         Plaintiff fails to produce sufficient evidence to support a failure-to-supervise deliberate indifference claim. To support such a claim, plaintiff “must show that the need for more or better supervision to protect against constitutional violations was obvious.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (citing City of Canton v. Harris, 489 U.S. 378, 380 (1989)). An “obvious” need may be demonstrated by “repeated complaints of civil rights violations” followed by “no meaningful attempt on the part of the municipality to investigate or forestall further incidents.” Id. Here, plaintiff has shown that Officer Sabol was suspended eight years prior to the incident following a violent off-duty incident and was the subject of two unspecified civil rights complaints that were not substantiated by the IA review process or, apparently, by any other evidence.[7]Defendants' failure to more closely supervise Sabol under these circumstances does not rise to the level of deliberate indifference.[8]

         The WPD's general practices regarding excessive force complaints also do not support a finding of deliberate indifference. Plaintiff's expert reports that a relatively low number of complaints of excessive force were “substantiated” by IA investigations and that officers sometimes failed to follow certain procedures related to complaints. He bases much of his findings and opinions on depositions conducted in another recent case against the WPD, Gonzalez v. Waterbury Police Dep't. As Judge Underhill concluded in that case, although the evidence “raise[s] sweeping concerns about the competency of Waterbury's Internal Affairs Division, ” it fails to establish a pattern or practice of unconstitutional deprivations by WPD officers sufficient to support a finding of deliberate indifference. Gonzalez, 2016 WL 953211, at *3 (D. Conn. Mar. 3, 2016). Plaintiff's expert here concludes that the WPD often failed to find wrongdoing and appropriately discipline officers after complaints, but he fails to identify specific complaints that the WPD failed to adequately review. See id. It is true, as plaintiff argues, that the existence of a complaint review procedure and evidence that some investigation typically takes place does not necessarily shield a municipality from liability. See Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319, 331 (2d Cir. 1986) (finding deliberate indifference despite “superficial” internal investigations). But plaintiff offers no evidence that any officer actually used unconstitutionally excessive force prior to his encounter with the officers.[9] Cf. Galindez v. Miller, 285 F.Supp.2d 190, 198-99 (D. Conn. 2003) (denying summary judgment when plaintiff identified numerous excessive force complaints, zero complaints were “sustained” by internal affairs division, but approximately half of excessive force lawsuits during same period resulted in settlements). Without any evidence that WPD officers engaged in unconstitutional conduct, a jury could not find a pattern or practice of such conduct. Moreover, the procedural deficiencies in IA investigations that plaintiff identifies, including in his own case, are too minor to warrant an inference that the officers involved were deliberately indifferent to constitutional rights. Cf. id. (deliberate indifference finding supported by evidence that mandatory use of force forms filled out in “almost none” of excessive force investigations and no action taken on plaintiff's complaint until lawsuit filed almost one-and-a-half years later). At most, plaintiff has shown that some officers conducting IA investigations, possibly including Chief Riddick, negligently administered IA policies and procedures.

         Plaintiff also fails to produce sufficient evidence to support a deliberate indifference claim based on a failure-to-train theory. As discussed above, plaintiff has not identified an underlying pattern or practice showing that WPD officers used unconstitutionally excessive force. Thus, he cannot show that Chief Riddick or other City officials were on notice that more training was needed. See Connick v. Thompson, 563 U.S. 51, 62-63 (2011) (rejecting failure-to-train claim based on Brady violation where, ...

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