United States District Court, D. Connecticut
RULING AND ORDER
F. MARTINEZ UNITED STATES MAGISTRATE JUDGE
plaintiff, Lamar Woodhouse, who is self-represented, brings
this action pursuant to 42 U.S.C. 1983 against New Haven
Police Officers Pellicone, Vallin and Pesino. The plaintiff
alleges that the defendants released a police dog to bite him
after he was restrained. He claims that they used excessive
force and/or failed to intervene to prevent or stop the
constitutional violation. Pending before the court is
defendant Pellicone's motion for summary judgment. (Doc.
#26.) For the reasons set forth, the motion is
following facts, drawn from the parties' Local Rule 56(a)
statements and exhibits, are undisputed unless otherwise
night of November 21, 2014, the plaintiff and two companions,
Leila Sanchez ("Sanchez") and Ayeshia Wright, went
to Sanchez's apartment building. The front door of the
building was locked so Sanchez kicked the door open. (Doc.
#26-2, Defendants' Local Rule 56(a)(1) Statement of Fact
("Def. SOF"), ¶1.) The three entered and
proceeded to Sanchez's third floor apartment. (Def. SOF
¶2.) After a complaint of forced entry, police were
dispatched. (Def. SOF ¶11).
three defendants (Pellicone, Pesino and Vallin) and two other
officers responded and entered the building. (Pellicone Aff.
¶5; Def. SOF ¶13.) When the police arrived, the
plaintiff, who was on the third floor, went down the back
stairwell to the second floor. (Def. SOF ¶¶2-3.)
Defendants Pellicone and Pesino went to the third floor and
found Sanchez. (Def. SOF &14.) Pellicone and other
officers detained Sanchez while they searched for other
suspects. (Def. SOF ¶14.) Defendants Pellicone and
Pesino searched the third floor apartment while defendant
Vallin and his police K-9 went to the second floor apartment.
(Def. SOF ¶15.) On the second floor, defendant Vallin
and his dog encountered the plaintiff. (Def SOF ¶3.)
Vallin ordered the plaintiff to get on the floor. (Doc. #27,
Woodhouse Aff. ¶10.) The plaintiff alleges that at this
point, "another officer came behind defendant Vallin
with his gun drawn." (Woodhouse Aff. ¶11.) The
plaintiff says that as he was attempting to comply with
defendant Vallin's order, defendant Pesino came from the
stairs and tackled the plaintiff. (Woodhouse Aff. ¶12.)
According to the plaintiff, while he was lying on the ground,
handcuffed, defendant Vallin released his dog, who bit the
plaintiff. (Woodhouse Aff. ¶14.) It is undisputed that
defendants Vallin and Pesino were present when the dog bit
the plaintiff and that there were three other officers in the
Standard of Review
judgment is appropriate when the record demonstrates 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). When ruling on a summary judgment motion,
the court "view[s] the evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in its favor." Sologub v. City of New
York, 202 F.3d 175, 178 (2d Cir. 2000). "The burden
of showing that no genuine factual dispute exists rests upon
the moving party." Carlton v. Mystic Transp.,
202 F.3d 129, 133 (2d Cir. 2000). "When a motion for
summary judgment is properly supported by documentary and
testimonial evidence, however, the nonmoving party may not
rest upon the mere allegations or denials of the pleadings,
but must present sufficient evidence supporting its position
'to require a jury or judge to resolve the parties'
differing versions of the truth at trial.'"
Connecticut Ironworkers Employers' Ass'n v.
New England Reg'l Council of Carpenters,
___ F.Supp.3d ___, No. 3:10CV165(SRU), 2018 WL 2337126,
at *2 (D. Conn. May 23, 2018)(quoting Anderson v. Liberty
Lobby, 477 U.S. 242, 249 (1986)). To present a
"genuine" issue of material fact and avoid summary
judgment, the record must contain contradictory evidence
"such that a reasonable jury could return a verdict for
the non-moving party." Anderson, 477 U.S. at 248.
the plaintiff is self-represented, the court reads his
"papers liberally to raise the strongest arguments they
suggest." Willey v. Kirkpatrick, 801 F.3d 51,
62 (2d Cir. 2015). However, "unsupported allegations do
not create a material issue of fact" and are
insufficient to oppose a properly supported motion for
summary judgment. Weinstock v. Columbia Univ., 224
F.3d 33, 41 (2d Cir. 2000).
Pellicone moves for summary judgment, arguing that he was not
present during the plaintiff's encounter with the police
dog. Pellicone states that he was still on the third floor
with Sanchez when the plaintiff was bitten. Pellicone
maintains that he neither participated in the incident, nor
had the opportunity to intervene. (Def's Ex. B, Pellicone
Aff. ¶¶10-11.) In addition to Pellicone's own
affidavit, he relies on defendant Vallin's supplemental
police report which says that Vallin and Pesino were the
officers present when the K-9 bit the plaintiff. (Doc. #26-2
Ex. C, Vallin's report.)
response, the plaintiff contends that another police officer
joined defendant Vallin on the second floor before defendant
Pesino arrived. As evidence that defendant Pellicone was that
officer, the plaintiff points to a police report written by
defendant Pellicone. (Def. SOP ¶5.) Plaintiff's
discovery responses eluciDated: "I only included Officer
Pellicone [as a defendant] because he wrote the incident
affidavit stating he was present along with these officers
during the time of the incident." (Def's SOF
¶5; Doc. #26-2, Def's Ex. A, Pl.'s Resp.
Interrogatories ¶15, at 18.)
interpretation of Pellicone's report is incorrect.
Pellicone's narrative only says that "[u]pon going
up to the 3rd floor, Officers met with Ms. Sanchez but did
not find any other subjects. Ms. Sanchez was detained while
we searched for the other subjects." (Def's Ex. C,
case incident No. 1406053.) Contrary to the plaintiff's
characterization, defendant Pellicone did not "admit to
being present" when ...