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Fletcher v. City of New London

United States District Court, D. Connecticut

September 25, 2018

ALBERTHA FLETCHER and DONNA SMITH, Administrators of the Estate of Lashano Gilbert Plaintiffs,
v.
CITY OF NEW LONDON, et al. Defendants.

          RULING ON MOTION FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE

         I. Introduction

         This case arises out of the death of Lashano Gilbert while in police custody on October 4, 2014, in New London, Connecticut. Plaintiffs Albertha Fletcher and Donna Smith, the administrators of Mr. Gilbert's estate, bring claims against ten police officers and the City of New London (“Police Defendants”) for wrongful death, negligence, and violations of the Fourteenth Amendment, including deliberate indifference to medical needs and excessive force. They also bring claims of medical malpractice and wrongful death against a doctor, Deirdre Cronin-Vorih, who examined Mr. Gilbert in the Lawrence and Memorial Hospital emergency room after his arrest but before he was returned to police custody, as well as against Lawrence and Memorial Hospital.[1]Now before me are motions for summary judgment filed by Lawrence and Memorial Hospital (“the Hospital”) (ECF No. 100) and the Police Defendants (ECF No. 103). The former moves for summary judgment on the ground that the plaintiffs have failed to provide evidence that Dr. Cronin-Vorih was an employee or agent of the Hospital at the time of Mr. Gilbert's death. The Police Defendants' motion asserts that plaintiffs have abandoned some claims, failed to raise a genuine dispute of material fact as to all claims, and failed to overcome the defense of qualified immunity as to the individual Police Defendants. For the reasons set forth below, the Hospital's motion for summary judgment is granted and the Police Defendants' motion is granted in part and denied in part.

         II. Background

         A. Factual Background

         1. Mr. Gilbert's Arrest

         The following facts, which are taken from the parties' Local Rule 56(a) Statements and the exhibits, are undisputed unless otherwise indicated.[2] On October 3, 2014, “Lashano Gilbert jumped head first into the driver's window of a vehicle driven by Kathryn Arruda.” (ECF No. 103-2, Police Defendants' Local Rule 56(a)1 Statement (“PD's L.R. 56(a)1 Stmt.”) at ¶ 1; (ECF No. 115-1, the Plaintiffs' Local Rule 56(a)2 Statement (“Pl.'s PD L. R. 56(a)2 Stmt.”) at ¶ 1.) Once in the vehicle, Mr. Gilbert spoke unintelligibly and pantomimed stabbing Arruda in the chest. (PD's L.R. 56(a)1 Stmt. at ¶ 2; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 2.)[3] Arruda called 9-1-1. (PD's L.R. 56(a)1 Stmt. at ¶ 3; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 3.)

         When Officer Kurt Lavimoniere arrived at the scene, Mr. Gilbert ran at him while yelling incoherently. (PD's L.R. 56(a)1 Stmt. at ¶ 6; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 6.) Officer Lavimoniere discharged his Taser at Mr. Gilbert to halt his progress. (Id.) Once subdued, Mr. Gilbert “told officers on the scene that a ghost was inside him and was going to take his life if he did not bring [the ghost] to a cemetery in the Bahamas.” (PD's L.R. 56(a)1 Stmt. at ¶ 7; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 7.) “While awaiting the arrival of [New London Fire Department] personnel, [Sergeant Lawrence M. Keating] attempted to deescalate the situation and asked Gilbert questions in an effort to get a better understanding of any mental illness or drug induced psychosis which he may have been suffering from.” (PD's L.R. 56(a)1 Stmt. at ¶ 8; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 8.) Mr. Gilbert informed Sgt. Keating that “he took medications and was HIV positive.” (PD's L.R. 56(a)1 Stmt. at ¶ 9; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 9.) Mr. Gilbert “resisted efforts to place him in the ambulance and continued to resist while in the ambulance by moving his body, kicking his legs, attempting to bite and had to be restrained.” (PD's L.R. 56(a)1 Stmt. at ¶ 10; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 10.)

         2. Mr. Gilbert's Stay at the Hospital

         Mr. Gilbert was taken to the Hospital's emergency department for a medical evaluation. (ECF No. 102, the Hospital's Local Rule 56(a)1 Statement (“Hospital's L.R. 56(a)1 Stmt.”) at ¶ 5; (ECF No. 113, the Plaintiffs' Local Rule 56(a)2 Statement (“Pl.'s Hospital L.R. 56(a)2 Stmt.”) at ¶ 5.) While there, Mr. Gilbert was “evaluated and treated by an emergency medicine physician, Dr. Cronin-Vorih.” (Hospital's L.R. 56(a)1 Stmt. at ¶ 8; Pl.'s Hospital L.R. 56(a)2 Stmt. at ¶ 8.) Mr. Gilbert “was combative at [the hospital] and continued to attempt to bite Officer Griffin, EMS personnel, hospital security and medical personnel, and struggle against restraints.” (PD's L.R. 56(a)1 Stmt. at ¶ 11; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 11.) “When the phlebotomist attempted to take blood, Gilbert was flailing his body and tried to bite saying he wanted to share his disease with them.” (PD's L.R. 56(a)1 Stmt. at ¶ 12; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 12.) According to the police report documenting the incident, Mr. Gilbert “became stable, calm and cooperative” at some point later during his stay at the Hospital. (ECF No. 103-3, Exhibit A (“Police Report”) at 12.; see also ECF No. 56, Plaintiff's Second Amended Complaint, at ¶ 54 (noting that Mr. Gilbert experienced “states of calmness” during his stay at the Hospital).) Mr. Gilbert was discharged from the hospital later that night. ((PD's L.R. 56(a)1 Stmt. at ¶ 13; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 10; Hospital's L.R. 56(a)1 Stmt. at ¶ 11; Pl.'s Hospital L.R. 56(a)2 Stmt. at ¶ 11.)

         3. Mr. Gilbert's Release into Police Custody and Subsequent Death

         Mr. Gilbert “was cooperative throughout the booking process, was unrestrained, calmly communicated with officers and exhibited no violent behavior.” (PD's L.R. 56(a)1 Stmt. at ¶ 14; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 14.)[4] “When Gilbert first arrived at booking Officer Schafranski-Broadbent asked if he was injured and Gilbert showed her a small abrasion on his shoulder. She placed a bandage on his shoulder and then upon his request allowed him to wash his hands behind the booking desk.” (PD's L.R. 56(a)1 Stmt. at ¶ 15; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 15.) The parties contest the level of care provided by the police during this juncture. The Police Defendants contend that Mr. Gilbert was “interviewed for suicide screening” and “was monitored at all times either by the presence of the officers in booking and/or video monitoring;” the plaintiffs contest both of these statements, but they point to no evidence to support their denial of “monitoring.” (See PD's L.R. 56(a)1 Stmt. at ¶¶ 16-17; Pl.'s PD L.R. 56(a)2 Stmt. at ¶¶ 16-17). The Police Defendants' assertion that Mr. Gilbert was “monitored at all times” is thus deemed admitted. D. Conn. L.R. 56(a)3.

         “Approximately an hour and a half after arriving at the police station (11:30 p.m.) Gilbert, who was wearing a hospital gown, said he was cold. Officer Lavimoniere explained [that] his sweatshirt had been cut off but he provided [Mr. Gilbert] with the jeans he had originally been wearing.” (PD's L.R. 56(a)1 Stmt. at ¶ 18; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 18.) “At some point Gilbert was removed from the larger holding tank to do some paperwork. He said he was thirsty so Officer Lavimoniere placed him in a cell with a working sink. Gilbert asked to be put back into the holding tank so Lavimoniere allowed him to move back.” ((PD's L.R. 56(a)1 Stmt. at ¶ 19; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 19.) “About [4.5] hours after arriving at booking (approximately No. 2:30 a.m.) Gilbert was observed on the video monitor twisting his pants and standing on a metal bench.” (PD's L.R. 56(a)1 Stmt. at ¶ 20; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 20.)

         “Officer Lavimoniere and Sgt. Johnson opened the cell door to have Gilbert get down from the bench and to take his pants.” (PD's L.R. 56(a)1 Stmt. at ¶ 21; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 21.) “After speaking briefly with Gilbert, Sgt. Johnson and Officer Lavimoniere began to back out of the cell . . . when Gilbert suddenly lunged at Officer Lavimoniere, grabbing his Taser, ripping the battery/camera assembly [and] throwing it at the officer.” (PD's L.R. 56(a)1 Stmt. at ¶ 122; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 22; ECF No. 104, Exhibit K, Video Exhibit (“Video Exhibit”) at 2:39:01-2:39:30 A.M.) Mr. Gilbert then jumped over the booking counter, threw items at the officers, and placed one of the officers in a chokehold. (PD's L.R. 56(a)1 Stmt. at ¶ 23; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 23; Video Exhibit at 2:39:30-2:39:43 A.M.) “Officer Lavimoniere and Sgt. Johnson attempted to grab Gilbert's arms as he punched at them and tried to bite Sgt. Johnson. Officer Schafranski deployed her OC spray” to no apparent effect. (PD's L.R. 56(a)1 Stmt. at ¶ 24; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 24) “During the attempt to control Gilbert[, ] he bit Officer Schafranski on the foot after he was taken to the ground.” (PD's L.R. 56(a)1 Stmt. at ¶ 25; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 25.) The Police Defendants assert that “Gilbert repeatedly kicked Officer Lavimoniere in the chest, ” but plaintiffs deny this, asserting that the video of the event does not show this. (See PD's L.R. 56(a)1 Stmt. at ¶ 26; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 26.) At some point during the fight, Officer Coe applied her Taser to Mr. Gilbert twice. (PD's L.R. 56(a)1 Stmt. at ¶ 27; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 27.) “At some point during the struggle, Fire Department EMS was called . . . .” (PD's L.R. 56(a)1 Stmt. at ¶ 28; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 28.)

         The parties dispute the exact moment when Mr. Gilbert was subdued by the Police Defendants. The plaintiffs contend that Mr. Gilbert “was well under control” before the fire department arrived on the scene, pointing again to the video. (Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 28.) The Police Defendants present a different account, averring that the fire department arrived before Mr. Gilbert was under control and that “[e]ven after being handcuffed, Gilbert continued to struggle while being placed on the stretcher.” (P.D's L.R. 56(a)2 Stmt. at ¶ 28.) “Gilbert appeared to stop breathing while being transported in the ambulance and Officer Neff began performing C.P.R.” (PD's L.R. 56(a)1 Stmt. at ¶ 30; Pl.'s L.R. 56(a)2 Stmt. at ¶ 30.) At some point en route to the hospital, an officer in the ambulance noticed that Mr. Gilbert lacked a pulse. (Police Report at 21.) Subsequent efforts to revive him were unsuccessful. (Id.) An autopsy conducted on Mr. Gilbert by Chief Medical examiner Dr. James Gill certified the cause of death as, “Physical altercation (restraint, electric shock, pepper spray) during acute psychosis complicating sickle cell hemaglobinopathy” and certified the manner of death as “Homicide (Physical altercation with Police).” (Id. at 24-25; ECF No. 115-8, Ex. 7 (“Autopsy”) at 1.)

         On October 20, 2014, the New London Probate Court appointed Albertha Fletcher and Donna Smith as co-administrators of Mr. Gilbert's estate. (ECF No. 61-1 at 2, 9-10.)

         Additional facts will be discussed below in the analysis of the parties' arguments. I note in particular that I have reviewed videos showing Mr. Gilbert's arrival in the booking area; the booking process; Mr. Gilbert's placement in a holding cell; his activities in the cell for several hours; and the ultimate altercation with the officers. The videos are not accompanied by audio. The Police Defendants have set forth in their brief a chronology of the key events shown in the videos, which based on my review of the videos appears to be reasonably accurate (ECF No. 103-1 at 9-13) and is mostly uncontested by the plaintiffs, who rely little on the videos in their brief. I will discuss material aspects of the videos below.

         B. Plaintiffs' Complaint

         The plaintiffs' second amended complaint sets out the following claims against the Police Defendants, Dr. Cronin-Vorih, and the Hospital: (i) violation of Mr. Gilbert's right to due process under the Fourteenth Amendment and deliberate indifference to his “medical/mental health care needs” (Count One) (against the Police Defendants); (ii) violation of Mr. Gilbert's right against the use of excessive force under the Fourteenth Amendment (Count Two) (against the Police Defendants); (iii) medical malpractice (Count Three) (against the Hospital and Dr. Cronin-Vorih); (iv) wrongful death in violation of Conn. Gen. Stat. § 52-555 (Count Four) (against the Police Defendants); (v) negligence and “Misperformance of Ministerial Act” (Count Five) (against the Police Defendants); (vi) wrongful death in violation of Conn. Gen. Stat. § 52-555 (Count Six) (against the Hospital and Dr. Cronin-Vorih); and (vii) negligence resulting in imminent risk of harm to an identifiable person in violation of Conn. Gen. Stat. § 52-557n (Count Seven) (against the Police Defendants). (See generally Complaint.)

         III. Legal Standard

         Summary judgment is appropriate only when the moving party “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). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (internal quotation marks omitted). “A fact is material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). The moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences” in favor of the non-moving party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). “Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists.” Jackson v. Nassau Cty. Bd. of Sup'rs, 818 F.Supp. 509, 530 (E.D.N.Y. 1993). The non-moving party may not rely on the allegations of the complaint; he must point to admissible evidence warranting a trial. See Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (noting that a non-moving party may not rely “upon the mere allegations . . . [of his] pleading”).

         IV. Discussion

         Since the defendants' motions for summary judgment concern different claims, I address them separately.

         A. Police Defendants' Motion for Summary Judgment

         The Police Defendants move for summary judgment on all of the plaintiffs' claims against them. (ECF No. 103 at 1.) I address each of these claims in turn.[5]

         1. Deliberate Indifference Claim

         Because Lashano Gilbert was a pretrial detainee rather than a convicted prisoner at the time of these events, the plaintiffs' deliberate indifference claim is “governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). In the past, the Second Circuit applied the same standard in analyzing claims of deliberate indifference to medical needs brought under both the Eighth and Fourteenth Amendments. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009), overruled by Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) (“Claims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.”). That standard provided that a prisoner must “satisfy two requirements” to establish such a claim: (1) he “must prove that the alleged deprivation of medical treatment is, in objective terms, sufficiently serious-that is, the prisoner must prove that his medical need was a condition of urgency, one that may produce death, degeneration, or extreme pain”; and (2) he must “prove that the charged official acted with a sufficiently culpable state of mind.” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal quotation marks omitted).

         The Second Circuit adjusted the second prong of this standard in response to the Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466, 2470 (2015). See Darnell, 849 F.3d at 33. In Kingsley, an excessive force case, the Supreme Court concluded that “an objective standard [of intent] is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment . . . .” Id. at 2476. In response to Kingsley, the Second Circuit held in Darnell that “to establish a claim for deliberate indifference to conditions of confinement under the Due Process Clause of the Fourteenth Amendment, [a] pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. “In other words, the ‘subjective prong' (or ‘mens rea prong') of a deliberate indifference claim is defined objectively.” Id. Although Darnell concerned a claim of deliberate indifference to unconstitutional conditions of confinement, a footnote in the decision notes that “deliberate indifference means the same thing for each type of claim under the Fourteenth Amendment.” Id. at 33, n. 9. “District courts in this Circuit have therefore applied Darnell's objective ‘mens rea' prong to claims of deliberate indifference to serious medical needs under the Fourteenth Amendment.” Walker v. Wright, No. 3:17-CV-425 (JCH), 2018 WL 2225009, at *5 (D. Conn. May 15, 2018) (listing cases). Thus, to establish their deliberate indifference claim, the plaintiffs must show: (1) “that the alleged deprivation of medical treatment [was], in objective terms, sufficiently serious-that is, [that Mr. Gilbert's] medical need was a condition of urgency, one that may produce death, degeneration, or extreme pain, ” Johnson, 412 F.3d at 403; and (2) that the Police Defendants “acted intentionally to impose [this] alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to [Mr. Gilbert] even though the [Police Defendants] knew, or should have known, that the condition posed an excessive risk to health or safety, ” Darnell, 849 F.3d at 35.

         There are two distinct periods of time at issue in the plaintiffs' deliberate indifference claim: (1) the discharge of Mr. Gilbert from the Hospital into police custody and his subsequent booking at the police station; and (2) the approximately four hours in which Mr. Gilbert remained in the holding cell before he attacked the Police Defendants. I examine each separately.

         a. Hospital Discharge and Booking

         The plaintiffs' claim fails with respect to the first time period. As noted above, Mr. Gilbert was discharged by Hospital staff. ((PD's L.R. 56(a)1 Stmt. at ¶ 13; Pl.'s PD L.R. 56(a)2 Stmt. at ¶ 10; Hospital's L.R. 56(a)1 Stmt. at ¶ 11; Pl.'s Hospital L.R. 56(a)2 Stmt. at ¶ 11.) The plaintiffs contend that the Police Defendants should have involuntarily committed him to the Hospital's care despite his discharge. (See ECF No. 115 at 3, 6.) In support of this contention, the plaintiffs point to the report of their expert, Robert Prevot, who concluded that the Police Defendants' failure to place Mr. Gilbert on an involuntary psychiatric hold at the Hospital constituted deliberate indifference to his medical needs. (See ECF No. 103-27, Ex. BB, Report of Plaintiff's Police Practices Expert, Robert Prevot (“Prevot Report”) at 8 (“Opinion #2: The collective knowledge of the Police Officers present during Mr. Gilbert's arrest was more than sufficient to warrant an involuntary psychiatric hold on Mr. Gilbert. The New London Police Department and Dr. Cronin, the attending physician at Lawrence & Memorial Hospital, were deliberately indifferent to the emergency medical needs of Mr. Gilbert.”).) The plaintiffs assert, in part on the basis of this report, that the officers should have had Mr. Gilbert involuntarily committed after his discharge under Conn. Gen. Stat. § 17a-503(a), which allows “[a]ny police officer who has reasonable cause to believe that a person has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, and in need of immediate care and treatment, [to] take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section.” (See ECF No. 115 at 7.)

         The plaintiffs' contention fails for three reasons. First, the officers who brought Mr. Gilbert to the Hospital for emergency examination after his arrest had effectively already complied with this statute. They did not exhibit deliberate indifference in declining to deliver Mr. Gilbert up for emergency examination a second time immediately after he was cleared for discharge. Second, such an action would have required the officers to override the opinion of Dr. Cronin-Vorih that Mr. Gilbert was fit to be discharged. The officers were not required to do so. Indeed, one of the key factors in determining whether a medical condition is sufficiently serious for purposes of a deliberate indifference claim is “[t]he existence of an injury that a reasonable doctor . . . would find important and worthy of comment or treatment . . . .” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks omitted). Here, the only doctor involved in this case-Dr. Cronin-Vorih-informed the Police Defendants that Mr. Gilbert was fit to be discharged into police custody. The Fourteenth Amendment did not require the officers attending Mr. Gilbert to second guess Dr. Cronin-Vorih's opinion.

         Third, a review of the video evidence undermines the plaintiffs' argument. When Mr. Gilbert arrived at the police station, he was calm. The video of the booking area shows that he arrived with Officer Tidd at about 10:04 P.M. and was cooperative and responsive throughout the thirty-five minutes or so that it took to book him and place him in the holding cell. (See Video Exhibit at 10:04-10:39 P.M.; PD's L.R. 56(a)1 Stmt. at ¶ 14 (noting Mr. Gilbert “was cooperative throughout the booking process, was unrestrained, calmly communicated with officers and exhibited no violent behavior”); see also Pl.'s PD L.R. 56(a)2 Stmt. at ΒΆ 14 (admitting this contention).) More specifically, during these thirty-five minutes, Mr. Gilbert was uncuffed and his leg irons were removed, and most of the time he sat on a bench across a counter behind which three female officers were standing. One of those officers was occupied with paperwork for part of the time and often was not looking at Mr. Gilbert; a second left ...


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