Chalco v. Belair

          MEMORANDUM OF DECISION GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [DKTS. 112, 127]

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Plaintiff Rene Chalco (“Plaintiff”) brought this action against City of Danbury police officers Christopher Belair, Robert Madore, Ryan Howley, and Andrew Katkocin (collectively, “Defendants”). Before the Court are Defendants' renewed Motions for Summary Judgment as to Plaintiff's claims that Defendants deprived him of his rights under the Fourteenth Amendment to the United States Constitution in violation of Section 1983 by (1) creating a risk of harm to him under a state-created danger theory and (2) acting with deliberate indifference to his medical needs. For the following reasons, the Court GRANTS Defendants' Motions for Summary Judgment. [Dkts. 112, 127].

         I. Procedural History

         Plaintiff brought this action on March 6, 2015. [Dkt. 1 (Compl.)]. Defendants moved for summary judgment in November 2016. [Dkt. 63 (Defs. Madore, Howley and Katkocin's Mot. for Summ. J.); Dkt. 65 (Def. Christopher Belair's Mot. for Summ. J.)]. On June 1, 2017, the Court denied Defendants' Motions for Summary Judgment. [Dkt. 94 (Mem. of Decision Den. Defs.'s Mots. for Summ. J.)]. Defendants appealed on June 12, 2017 claiming that the Court should have concluded that they were entitled to qualified immunity. [Dkt. Nos. 100-101 (Notices of Appeal)].

         The Second Circuit dismissed Defendants Madore, Howley, and Katkocin's appeal because they failed to plead qualified immunity as an affirmative defense or move for summary judgment on qualified immunity grounds. [Dkt. 125 (Summ. Order) at 4]. The Second Circuit affirmed in part the Court's decision as to Defendant Belair. Id. at 5-6. It found that Defendant Belair failed to show entitlement to qualified immunity as to Plaintiff's excessive force claim. Id. at 5. The Second Circuit remanded for further proceedings and instructed the Court to rule on qualified immunity as it relates to Plaintiff's claims for deliberate indifference and state-created danger, if properly raised before the Court. Id. at 6.

         On July 16, 2018, Defendant Belair filed his renewed Motion for Summary Judgment. [Dkt. 112 (Def. Christopher Belair's Renewed Mot. for Summ. J.)]. On July 17, 2018, Defendants Madore, Howley, and Katkocin filed their answer to the amended complaint in which they asserted the special defense of qualified immunity. [Dkt. 113 (Answer to First Am. Compl. and Special Defenses)]. On August 8, 2018, Defendants Madore, Howley, and Katkocin filed their renewed Motion for Summary Judgment. [Dkt. 127 (Defs. Madore, Howley and Katkocin's Renewed Mot. for Summ. J.)].

         II. Factual Background

         On March 7, 2013, at approximately 11:00 p.m., Plaintiff went to a bar in Danbury and stayed until it closed at 1:00 a.m. [Dkt. 112-3 (Pl.'s Dep.) at 22:8-22]. Plaintiff proceeded to drive home although he did not have a license and had never been licensed to drive. Id. at 23:17-23. There was a snowstorm that evening and snow had accumulated on the ground. [Dkt. 126-3 (Pl.'s Dep.) at 29:20-30:2; Dkt. 137-3 (Pl.'s Dep.) at 29:30-30:2]. The snow made the road slippery. [Dkt. 112-3 at 30:6-24; Dkt. 126-3 at 30:6-24; Dkt. 137-3 at 30:6-24]. On his way home, Plaintiff attempted to stop at a stop sign before White Street, but due to the slippery conditions caused by the snow he skidded through it. Id.

         While patrolling the area of White Street, Defendant Madore observed Plaintiff's vehicle roll through the stop sign. [Dkt. 127-6 (Madore Aff.) at ¶¶ 4, 6]. Defendants Katkocin and Howley were following behind Defendant Madore in Defendant Katkocin's cruiser. Id. at ¶ 5. Defendant Madore stopped Plaintiff and Defendant Katkocin also pulled over. [Dkt. 127-5 (Katkocin Aff.) at ¶ 6]. Defendant Madore conversed briefly with Plaintiff and then returned to his cruiser to write Plaintiff a ticket for failing to obey a stop sign and driving without a license. [Dkt. 127-6 at ¶ 8]. Defendants Howley and Katkocin informed Plaintiff that his car was going to be towed because he did not have a license. [Dkt. 126-14 (Internal Affairs Report) at 4]. By this time, Defendant Belair had also arrived on the scene. [Dkt. 127-6 at ¶ 9]. Defendant Belair exited his cruiser and approached Plaintiff. Id. While Defendant Madore was writing Plaintiff's ticket, Defendant Belair stayed with Plaintiff. Id. Plaintiff appears to have asked how he would get home and Defendant Belair responded:

“You got here somehow. Then walk back home. Take a fucking bus. Take that car once you get it out. I don't care. But stop being in this country and almost fucking killing people because you're too fucking stupid to call a ride. Honestly if there wasn't four other cops here . . . if there wasn't four other cops I'd beat the shit out of you right now . . . . It's an asshole like you that killed my uncle because he was fucking drunk driving, right? Some douchebag like you that decided to drink too much and go out in the middle of a fucking snowstorm when you shouldn't even have been driving anyway. But that's alright. You don't even give a shit about other people's families do you? . . . . You're a piece of shit.” [Dkt. 72-2 (Audio CD Labeled A-1); Dkt. 126-3 at 49:14-50:10; Dkt. 137-3 at 49:14-50:10].

         Defendant Belair then punched Plaintiff in the mouth and nose. [Dkt. 126-3 at 50:9-14, 52:2-13; Dkt. 126-14 at 14; Dkt. 137-3 at 50:9-14, 52:2-13]. Plaintiff immediately held his hand to his face. [Dkt. 112-3 at 57:20-24; Dkt. 126-14 at 14; Dkt. 126-3 at 52:10-18; Dkt. 127-7 (Pl.'s Dep.) at 57:20-24; Dkt. 137-3 at 52:10-18]. Afterwards, Defendant Belair stated to Plaintiff, “Now you want to cry? Now you want to cry?” [Dkt. 112-3 at 57:1-6; Dkt. 126-3 at 52:10-21; Dkt. 127-7 at 57:1-6; Dkt. 137-3 at 52:10-21]. During this exchange, Plaintiff repeatedly apologized to Defendant Belair. [Dkt. 72-2; Dkt. 126-3 at 49:23-50:10; Dkt. 137-3 at 49:23-50:10]. Plaintiff testified that after Defendant Belair punched him the inside of his mouth began bleeding and he swallowed the blood while he was speaking with the Defendants and continued doing so until he was alone walking to his home which was one mile away from the scene. [Dkt. 112-3 at 57:20-24, 59:2-6; Dkt. 126-3 at 57:20-24, 59:2-6; Dkt. 126-14 at 13-14; Dkt. 127-7 at 107:7-108:25; Dkt. 137-3 at 57:20-24, 59:2-6]. Plaintiff does not claim that he requested medical assistance or a ride home from Defendants. [Dkt. 112-3 at 60:18-61:19; Dkt. 126-3 at 128:2-8; Dkt. 127- 7 at 60:18-61:19; Dkt. 137-3 at 128:2-8]. On his one mile walk home, Plaintiff could no longer swallow the blood and it dripped out of his mouth onto his clothing. [Dkt. 112-3 at 59:2-5; Dkt. 126-3 at 59:2-6; Dkt. 127-7 at 59:2-6; Dkt. 137-3 at 59:2-6]. Plaintiff does not allege any Defendant saw that he was bleeding. He testified that he swallowed the blood until he was walking home after the Defendants had left the scene. Id.

         Defendant Belair denies he punched Plaintiff. [Dkt. 112-4 (Belair Aff.) at ¶ 13]. Defendants Howley, Katkocin and Madore submitted affidavits swearing that they did not observe Defendant Belair punch Plaintiff and that they noticed no injury to Plaintiff's lip. [Dkt. 127-4 (Howley Aff.) at ¶¶ 11-13; Dkt. 127-5 at ¶¶ 11-13; Dkt. 127-6 at ¶¶ 10-13]. However, Plaintiff's brother, two co-workers, and an acquaintance testified that they observed Plaintiff's swollen lip in March 2013. [Dkt. 126-6 (J. Chalco Dep.) at 63:10-19; Dkt. 126-7 (Gallagher Dep.) at 98:12-14, 100:25-27; Dkt. 126-8 (Rizkallah Dep.) at 75:13-23, 78:9-27; Dkt. 126-9 (Guillcatanda Dep.) at 56:7-12]. Plaintiff also offers photographs of the inside of his mouth which he contends depict an injury to the inside of his mouth and a blood-stained jacket. [Dkt. 137-10 (Photographs of Plaintiff); Dkt. 137-5 (Photographs of Jacket)]. These are poor photographs and it is questionable whether they depict what Plaintiff offers them to show, but the Court assumes they depict what Plaintiff claims.

         Following the incident, a complaint was made to the Danbury Police Department, and the resulting investigation determined that Defendants violated several department policies. Madore, Katkocin and Belair were found to have violated department policy by failing to activate, or disabling before the traffic stop ended, video and audio recording systems in their vehicles. [Dkt. 126-14 at 10-11, 13-14]. Defendants Madore and Belair were found to have violated their duty of care by instructing Plaintiff to “walk home a distance of approximately one mile at approximately 0130 hrs during an intense snow storm” after Plaintiff had “already been seen stumbling in the roadway.” Id. at 9-10, 13. The investigation also determined that Defendants Katkocin and Howley violated department policy by failing to intervene or report the incident to a supervisor when they observed Defendant Belair yelling at Plaintiff. Id. at 11-12. Defendants Katkocin and Howley also both reportedly told internal affairs that they saw, or knew that Plaintiff was allowed to, walk away from the scene. Id. at 11, 13. Plaintiff testified at his deposition that he walked home without incident and went to bed without seeking medical treatment. [Dkt. 112-3 at 61:6-64:7; Dkt. 127-7 at 61:6-64:7].

         III. Legal Standard

         Summary judgment should be granted “if the movant 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). The moving party bears the burden of proving that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp., No. 3:03-cv-00481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (“At the summary judgment stage of the proceeding, [the moving party is] required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.”) (citing Gottlieb v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. Conn. State Library, 817 F.Supp.2d 28, 37 (D. Conn. 2011). Put another way, “[i]f there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal citation and quotation omitted).

         A party who opposes summary judgment “cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb, 84 F.3d at 518. Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further ...