United States District Court, D. Connecticut
ALBERTHA FLETCHER and DONNA SMITH, Administrators of the Estate of Lashano Gilbert Plaintiffs,
CITY OF NEW LONDON, et al. Defendants.
RULING ON MOTION FOR SUMMARY JUDGMENT
MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE
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.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
Mr. Gilbert's Arrest
following facts, which are taken from the parties' Local
Rule 56(a) Statements and the exhibits, are undisputed unless
otherwise indicated. 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 ¶
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.)
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.)
Mr. Gilbert's Stay at the Hospital
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 ¶
Mr. Gilbert's Release into Police Custody and Subsequent
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.) “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.
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
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
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.)
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.)
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.
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.)
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”).
the defendants' motions for summary judgment concern
different claims, I address them separately.
Police Defendants' Motion for Summary Judgment
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.
Deliberate Indifference Claim
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).
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.
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.
Hospital Discharge and Booking
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.)
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.
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 ¶ 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 ...