United States District Court, D. Connecticut
WILSON RAMOS, As Administrator of The Estate of Jose A. Maldonado, and Individually, Plaintiff,
v.
TOWN OF EAST HARTFORD et al., Defendants.
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [DKTS.
125, 126]
Hon.
Vanessa L. Bryant, United States District Judge
Plaintiff
Wilson Ramos (“Ramos”), as administrator of the
Estate of his deceased brother Jose A. Maldonado (the
“Estate” or “Maldonado”), and
individually, brings this action against the Town of East
Hartford and Officers Jason Kaplan, James Lis, Jason Cohen,
and Chief Scott Sansom (collectively,
“Defendants”). Plaintiff brings various state and
federal claims stemming from the fatal altercation he
observed between Maldonado and Defendants Kaplan, Lis, and
Cohen on April 13, 2014.
Before
the Court are two motions for summary judgment. Defendants
Town of East Hartford, Lis, Cohen, and Sansom filed a Motion
for Summary Judgment (“Defendants' Motion for
Summary Judgment”). See [Dkt. 126 (Mot. for
Summ. J.)]. Defendant Kaplan filed a separate Motion for
Summary Judgment (“Defendant Kaplan's Motion for
Summary Judgment”). See [Dkt. 125 (Def. Jason
Kaplan's Mot. for Summ. J.)]. For the following reasons,
the Court GRANTS IN PART AND DENIES IN PART Defendants'
Motion for Summary Judgment and Defendant Kaplan's Motion
for Summary Judgment.
I.
Factual Background[1]
On
April 12, 2014, Ramos and Maldonado attended a party and
Maldonado drank beer and cognac to the point of intoxication.
They left early because Maldonado was so intoxicated. [Dkt.
126-5 (Ramos Dep.) at 44:21-25, 49:16-52:6]. Ramos and
Maldonado were half-siblings. Id. at 10:2-8. Ramos
had never seen Maldonado as drunk as he was that night.
Id. at 43:24-44:1.
While
Ramos and Maldonado were walking towards Ramos's car, a
vehicle occupied by Angel Arroyo, Liz Bigio, and three
children stopped, and an argument ensued during which
Maldonado punched and shattered the glass of the driver's
side window. Id. at 62:19-64:23; see also
[Dkt. 126-6 (Bigio Dep.) at 18:8-13]; [Dkt. 126-7 (Arroyo
Dep.) at 16:23-25]. Ms. Bigio called the police and Sergeant
Lis was the first to arrive on the scene alone. [Dkts. 126-5
at 69:22-70:6; 126-6 at 38:16-26; 126-8 (Lis Dep.) at
54:7-19]. Sergeant Lis spoke with Ms. Bigio and observed
damage to her vehicle. [Dkt. 126-8 at 54:7-23]. Ms. Bigio
pointed to Ramos and Maldonado and stated that one of them
broke her window. Id.
Sergeant
Lis approached Ramos and Maldonado and observed Ramos pushing
Maldonado into the passenger seat of a motor vehicle. [Dkt.
126-5 at 70:18-71:14]. Sergeant Lis instructed Ramos to move
away from the vehicle, so he could speak to Maldonado, but
Ramos refused. [Dkt. 126-8 at 57:8-16]. At his deposition,
Ramos admitted he heard Sergeant Lis's command, but could
no longer recall what Lis said. [Dkt. 126-5 at 71:5-8]. Ramos
admitted he did not comply with Sergeant Lis's command
and told Lis to wait until he got Maldonado fully into the
vehicle. [Dkts. 126-5 at 116; 132-6 (Ramos Aff.) at ¶ 4;
126-8 at 57:3-58:25, 71:1-20]. After Ramos got Maldonado into
the vehicle, he turned around and Sergeant Lis sprayed him
with pepper spray. [Dkts. 126-5 at 71:1-4; 132-6 at ¶ 4;
126-8 at 56:21-57:23]. Ramos claims he did not have a chance
to acknowledge Sergeant Lis's command voluntarily because
he was pepper sprayed almost immediately after the command.
[Dkts. 132-3 (Ramos Dep.) at 72:13-18; 132-6 at ¶ 4].
Sergeant Lis, with the help of Officer Miller who arrived on
the scene, handcuffed Ramos and brought him to the ground.
[Dkts. 126-8 at 59:3-10; 132-3 at 72:24-73:6].
Next,
Sergeant Lis turned to Maldonado who was walking towards him
with clenched fists and saying, “Fuck you,
motherfucker.” [Dkt. 126-8 at 59:22-60:11]. Sergeant
Lis struck him in the face. Id. Then, Officer
Parlapiano arrived, sprayed Maldonado with pepper spray, and
both officers brought Maldonado into custody. Id. at
60:12-13. Once Maldonado was handcuffed, he continued to
resist and try to pull away. [Dkt. 126-10 (Cohen Dep.) at
65:21-24, 66:16-22]. Ramos did not see this interaction
between Maldonado and the officers because he was handcuffed
and face down on the ground. [Dkt. 132-3 at 74:15-75:11].
Officers Parlapiano and Cohen observed Sergeant Lis
struggling to take Maldonado into custody. [Dkts. 126-9
(Parlapiano Dep.) at 16:5-19; 126-10 at 62:24-63:2]. Mr.
Arroyo and Ms. Bigio also observed that the officers had a
hard time controlling Maldonado. [Dkts. 126-6 at 37:2-23;
126-7 at 22:12-21]. Mr. Arroyo described Maldonado like
“a bullet going everywhere” and Ms. Bigio
described him as “The Hulk.” [Dkts. 126-6 at
37:2-23; 126-7 at 25:1-20].
After
he was handcuffed, the officers observed that Maldonado was
intoxicated and continued to be uncooperative. [Dkts. 126-8
at 71:18-24; 126-10 at 65:12-66:22; 126-11 (Kaplan Dep.) at
133:21-134:12]. He struggled during the pat down and refused
to get into the police cruiser. [Dkts. 126-8 at 75:8-12;
126-11 at 133:24-134:6]. Ramos was compliant with the
officers for the remainder of the night and no additional
force was used. [Dkt. 126-8 at 66:9-21]. Maldonado and Ramos
were put in separate police cruisers and transported to the
East Hartford Police Department headquarters by Officers
Kaplan and Cohen, respectively. [Dkts. 126-10 at 70:5-8;
126-11 at 145:9-19]. Maldonado was spitting at Officer Kaplan
during the transport, but Ramos was transported without
incident. [Dkt. 126-11 at 145:12-17].
Upon
arrival at the headquarters, Officers Kaplan and Cohen
brought Maldonado to the eyewash decontamination area in the
booking room to let him rinse his eyes, but he refused. [Dkt.
126-10 at 72:2-12; 126-11 at 145:20-147:6]. Plaintiff
disputes that Maldonado refused, but he cites no evidence in
support of his assertion. Officers Kaplan and Cohen then
escorted Maldonado into the holding cell inside the booking
area, uncuffed him, and locked him inside the cell. [Dkts.
126-17 (Holding Cell Video); 126-10 at 73:3-5; 126-11 at
146:17-147:6]. After he was alone in the cell, Maldonado
began pacing and disrobing. [Dkt. 126-17 at 2:00:49-2:04:35].
Next,
Officers Cohen and Kaplan escorted Ramos into the booking
area and allowed him to rinse his face in the eye
decontamination area. [Dkts. 126-10 at 73:15-74:2; 126-11 at
147:11-148:10]. By this time, Sergeant Lis arrived in the
booking room. [Dkt. 126-8 at 77:21-78:5]. Maldonado had
removed all of his clothing except for his underwear and his
right pant leg which was stuck around his ankle over his
shoe. [Dkt. 126-17 at 2:00:49-2:04:35]. The officers asked
Ramos if he was comfortable going into the holding cell with
Maldonado and Ramos said yes. [Dkt. 126-5 at 84:24-85:3].
Officers Kaplan and Cohen escorted Ramos to the holding cell
door and told Maldonado, who was inside the cell, to step
away from the door. Id. at 90:1-6. The officers
removed Ramos's handcuffs. Id. at 89:12-14. One
of the officers unlocked the holding cell door.
What
happened during the next two minutes was captured by two
cameras, neither of which recorded audio:
-
Time on Camera [2]
|
Event
|
2:04:36
|
Maldonado begins moving towards the door of the
holding cell.
|
2:04:38
|
Maldonado grabs the sliding door of the holding
cell.
|
2:04:39
|
Maldonado pushes the sliding door of the holding
cell open and steps into the threshold of the door.
|
2:04:40
|
Maldonado reaches the officers standing immediately
outside of the sliding door of the holding cell.
|
2:04:41
|
Maldonado is punched and pushed backwards towards
the holding cell.
|
2:04:42
|
Maldonado is pushed backwards and reenters the
holding cell.
|
2:04:43
|
Maldonado struggles with the officers who are
crowded in the entrance of the cell. Maldonado
punches forward towards the officers with his right
arm.
|
2:04:44
|
Maldonado continued to struggle with the officers.
|
2:04:45
|
While struggling with the officers, Maldonado
extends his left arm and tries to keep Sergeant Lis
at bay. Officer Kaplan takes out his taser and aims
it at Maldonado.
|
2:04:46
|
Officer Kaplan takes a step forward still aiming
the taser at Maldonado. Maldonado's arms are
bent at a ninety-degree angle. Maldonado takes a
step to the side with his left leg. He does not
appear to be advancing.
|
2:04:48
|
Sergeant Lis punches Maldonado in the face with his
left arm. Maldonado doubles over, spins
approximately 180º and is facing the back of
the holding cell.
|
2:04:49
|
Sergeant Lis pushes Maldonado from behind towards
the holding cell wall directly opposite from the
door. Maldonado extends his arms to catch himself.
He falls forward and his head makes contact with
the wall.
|
2:04:50
|
Sergeant Lis runs towards Maldonado and hovers over
him.
|
2:04:51
|
Sergeant Lis stays near Maldonado leaning over him.
|
2:04:52
|
Officer Kaplan continues to hold the taser aimed at
Maldonado. With his other hand, he holds Ramos
against the side of the holding cell against the
cell wall.
|
2:04:53
|
Maldonado braces his right arm on the floor and
lifts his upper body off the floor.
|
2:04:54
|
Maldonado sits on the floor with his upper body
slumped forward over his legs.
|
2:04:55
|
Sergeant Lis steps back from Maldonado. Officer
Kaplan holds Ramos in the corner of the holding
cell against the wall. He continues to hold the
taser in his other hand.
|
2:04:56-2:04:59
|
Maldonado remains seated leaning forward as his
torso rocks slightly from side-to-side.
|
2:05:00
|
The officers stand back from Maldonado who is still
seated and leaning very far forward.
|
2:05:01-2:05:03
|
Sergeant Lis takes out his handcuffs and moves
towards Maldonado.
|
2:05:04
|
Sergeant Lis and Officer Cohen continue to move
towards Maldonado.
|
2:05:05-2:05:09
|
Sergeant Lis and Officer Cohen move Maldonado in
preparation for handcuffing him.
|
2:05:09
|
Sergeant Lis moves away from Maldonado towards
Officer Kaplan and Ramos in the corner of the
holding cell.
|
2:05:09-2:05:16
|
Officer Cohen moves Maldonado to his side and
begins handcuffing his wrists.
|
2:05:17
|
Officer Kaplan joins Officer Cohen to assist in
handcuffing Maldonado.
|
2:05:17-2:05:32
|
Officers Kaplan and Cohen pull Maldonado's arms
behind his back and cuff him.
|
2:05:33-2:05:41
|
Officers Kaplan and Cohen stand up behind
Maldonado.
|
2:05:42-2:05:46
|
Officer Cohen moves away from Maldonado towards the
door of the holding cell.
|
2:05:47-2:05:57
|
All three officers are stand in a circle around
Maldonado. Ramos remains in the corner of the
holding cell.
|
2:05:57-2:06:07
|
Sergeant Lis moves towards the door of the holding
cell, but all three officers remain in the holding
cell with Maldonado. Ramos remains in the corner of
the holding cell.
|
2:06:08
|
Sergeant Lis, looking at Ramos, waves his hand
towards the door of the holding cell.
|
2:06:09-2:06:11
|
Ramos exits the holding cell followed by Sergeant
Lis. Officers Cohen and Kaplan move towards the
door of the holding cell.
|
2:06:12-18
|
Officer Kaplan exits the holding cell followed by
Officer Cohen.
|
2:06:18-2:06:23
|
All three officers leave the holding cell and
remain in the area outside the open door of the
holding cell.
|
2:06:23-2:06:29
|
One of the officers slides the door of the holding
cell closed.
|
2:06:30
|
The door of the holding cell is fully closed.
Maldonado is left alone inside the holding cell
lying on his side with his hands cuffed behind him.
|
During
the altercation with Maldonado, Defendant Kaplan deployed the
taser for twenty seconds. [Dkt. 132-2 (Taser Deployment
Report)]. The maximum recommended deployment time for a taser
is fifteen seconds. [Dkts. 132-40 (ECW Guidelines) at 18;
132-41 (Taser Training) at 5]. Tasing for longer than fifteen
seconds may increase the risk of serious injury or death and
should be avoided. [Dkt. 132-25 (Minor Dep.) at 110:17-25].
The taser prongs struck Maldonado in the chest. [Dkt. 132-7
(Postmortem Examination) at 2]. Taser training warns against
targeting a person's chest. [Dkts. 132-40 at 37; 132-41
at 4; 132-25 at 119; 132-24 at 88:3-7, 91:6-21; 132-18 at
36:6-23; 132-23 at 32:17-33:9].
Ramos
washed his eyes again and afterwards he sat unhandcuffed on
the floor outside of the holding cell, approximately eight
feet away from Maldonado. [Dkts. 126-5 at 99:18-100:10,
102:21-103:5, 102:21-23; 126-8 at 113:14-19; 126-17 at
2:09:40]. Officer Parlapiano arrived and observed Maldonado
lying on the floor in the holding cell. [Dkt. 126-9 at
37:20-22]. The officers did not reenter the cell to check on
Maldonado until 2:10:34 AM-after approximately four minutes
passed. [Dkt. 126-17 at 2:10:34]. During that four-minute
period, Maldonado remained lying on the floor of the cell on
his side with his hands cuffed behind his back moving
slightly every couple of seconds. The holding cell camera
depicts his movements:
-
Time on Camera
|
Event
|
2:06:26-2:06:31
|
Maldonado seen moving slightly.
|
2:06:46-2:06:50
|
Maldonado seen moving slightly.
|
2:07:05-2:07:08
|
Maldonado seen moving slightly.
|
2:07:10
|
Maldonado seen moving slightly.
|
2:07:22-2:07:25
|
Maldonado seen moving slightly.
|
2:07:27-2:07:29 [3]
|
Maldonado seen moving slightly.
|
2:07:46-2:07:50
|
Maldonado seen moving slightly.
|
2:07:53
|
Maldonado seen moving slightly.
|
2:07:56-2:07:57
|
Maldonado seen moving slightly.
|
2:08:02
|
Maldonado seen moving slightly.
|
2:08:06-2:08:08
|
Maldonado seen moving slightly.
|
2:08:12
|
Maldonado seen moving slightly.
|
2:08:35
|
Maldonado seen moving slightly.
|
2:09:03
|
Maldonado seen moving slightly.
|
2:09:15
|
Maldonado seen moving slightly.
|
2:09:25
|
Maldonado seen moving slightly.
|
2:10:04-2:10:05
|
Maldonado seen moving slightly.
|
Plaintiff's
expert Dr. Robert Myerburg described these slight movements
as “gasping respirations, ” which, to a trained
eye, indicate that Maldonado suffered potentially lethal
brain trauma. [Dkt. 126-14 (Myerburg Dep.) at 114:12-115:9].
Dr. Myerburg also testified that it is unlikely a police
officer would not appreciate the significance of the
movements. Id. at 115:10-116:1. Dr. Myerburg
testified that while awareness that while gasping respiration
was not something he was sure he would hold a police officer
to appreciate, “it does not matter because what they
didn't do was respond to an unconscious patient.”
Id. at 115:21-116:1. Defendant Kaplan's expert,
Sergeant Henry Minor, testified that police officers are
trained to know the difference between normal breathing and
agonal respiration. [Dkt. 132-25 at 56:19-25].
Defendants
Kaplan, Lis, and Cohen were near the holding cell throughout
the four-minute period. The holding cell is surrounded by a
chain link enclosure. The officers observed Maldonado without
entering the cell several times. [Dkts. 126-16 (Booking Room
Video) at 2:07:41, 2:07:49, 2:07:58-2:08:03, 2:08:37,
2:10:14]. Ramos also observed Maldonado from the outside of
the holding cell door. Id. at 2:09:26. Ramos
initially thought Maldonado was sleeping but became concerned
and asked the officers to check on him. [Dkt. 126-5 at
100:21-101:17].
The
officers entered the cell at 2:10:34 AM. That was .29 seconds
after the last time the video depicted Maldonado moving.
[Dkt. 126-17 at 2:10:34]. Prior to that, the longest period
Maldonado was still was .28 seconds between 2:08:35 and
2:09.03. [Dkt. 126-17 at 2:08:35-2:09.03].
The
officers tried to rouse Maldonado, but they were unable to do
so. [Dkt. 126-17 at 2:10:37-55]. Officer Cohen grabbed
Maldonado and lifted his torso upright. [Dkt. 126-17 at
2:11:00]. He tried to check for a pulse, but he was not sure
if he detected one. [Dkts. 126-17 at 2:11:44; 126-10 at
108:3-21]. Sergeant Lis directed Officer Parlapiano to call
for paramedics. Officer Parlapiano made the call and
requested assistance “as soon as possible.”
[Dkts. 126-9 at 38:22-39:7; 126-18 (Audio Recording No.
6093498)]. Officer Parlapiano then took Ramos to a cell in
the cell block. [Dkt. 126-9 at 41:14-25]. Three minutes
later, Officer Parlapiano made a second radio call. [Dkts.
126-9 at 46:9-23; 126-19 (Audio Recording No. 609512)].
Although Officer Parlapiano did not examine Maldonado between
the first and second calls, he informed the paramedics that
Maldonado was unconscious. [Dkt. 126-19]. None of the
officers performed CPR or other emergency medical procedures
while waiting for the paramedics.
Paramedics
entered the cell at 2:16:36 AM and began CPR at 2:17:57 AM.
[Dkt. 126-17]. Maldonado was eventually transferred to
Hartford Hospital where he was pronounced dead. [Dkt. 132-31
(Prehospital Care Report Summary)].
II.
Legal Standard
Summary
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact.”
Fed.R.Civ.P. 56(a). An issue is genuine if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if it “might affect the outcome
of the suit under the governing law.” Id.
“[T]he substantive law will identify which facts are
material in a given case.” Herbert Construction Co.
v. Continental Ins. Co., 931 F.2d 989, 990 (2d Cir.
1991) (quoting Anderson, 477 U.S. at 248). A
material fact is one which establishes an essential element
of a claim or defense. A party asserting that a fact cannot
be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). A party asserting that a fact is or
is not true must present admissible evidence to support their
assertion. Fed.R.Civ.P. 56(c)(2). At the summary judgment
stage of the proceeding, “allegations alone, without
[admissible] evidence to back them up, are not
sufficient.” Welch-Rubin v. Sandals
Corp., No. 3-CV-481, 2004 WL 2472280, at *1 (D.
Conn. Oct. 20, 2004) (citing Gottlieb v. Cty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996)); see also
Martinez v. Conn. State Library, 817 F.Supp.2d
28, 37 (D. Conn. 2011). The moving party bears the burden of
proving not only that no genuine factual disputes exist but
also that it is entitled to judgment as a matter of law
because the non-moving party cannot present admissible
evidence to establish the claim. See Vivenzio v. City of
Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).
Where a
defendant presents admissible evidence tending to show there
is no genuine issue of material fact for a jury to decide and
she is entitled to judgment as a matter of law, a plaintiff
must produce admissible evidence raising a genuine issue of
material fact to defeat summary judgment. Fed.R.Civ.P. 56(c).
Conclusory statements unsupported by admissible evidence,
speculation, conjecture, or surmise do not create a genuine
issue of fact for a jury to decide and will not defeat
summary judgment. See Gottlieb, 84 F.3d at 518;
see also Fincher v. Depository Trust & Clearing
Corp., 604 F.3d 712, 726-27 (2d Cir. 2010);
Welch-Rubin, 2004 WL 2472280, at *1.
“In
determining whether that burden [of showing the absence of
any genuine issue of fact] 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.” Vivenzio,
611 F.3d at 106 (citing Anderson, 477 U.S. at 255);
see also Matsushita Elec. 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, 2004 WL 2472280,
at *1. Determinations of the weight to accord to the evidence
or assessment of the credibility of the witnesses are
improper on a motion for summary judgment as those
assessments are the sole province of the jury. See Hayes
v. New York City Dep't of Corrs., 84 F.3d 614, 619
(2d Cir 1996); see also United States v. Rem, 38
F.3d 634, 644 (2d Cir. 1994)). 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).
Only where there is no evidence upon which a jury could
properly render 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
support in the record, may summary judgment lie.
III.
Abandoned Claims
“Federal
courts may deem a claim abandoned when a party moves for
summary judgment on one ground and the party opposing summary
judgment fails to address the argument in any
way.” Coltin v. Corp. for Justice Mgmt.,
Inc., 542 F.Supp.2d 197, 206 (D. Conn. 2008) (internal
quotation marks omitted); see also Olschafskie v. Town of
Enfield, No. 15-CV-67, 2017 WL 4286374, at *11, n.8 (D.
Conn. Sept. 27, 2017). Plaintiff alleges numerous claims in
his complaint and Defendants moved for summary judgment on
all of them. In his Motions in Opposition to Summary
Judgment, Plaintiff fails to oppose all of Defendants'
arguments. Therefore, where noted in this decision, the Court
deems certain claims abandoned and grants summary judgment in
favor of Defendants. See Ferraresso v. Town of
Granby, 646 F.Supp.2d 296, 305 (D. Conn. 2009)
(“grounds alleged in the complaint, but not relied upon
in summary judgment are deemed to be abandoned”).
IV.
Federal Claims
A.
Section § 1983
Claims
In a convoluted Count One, Plaintiff alleges a bevy of
different § 1983 claims against Defendants Kaplan, Lis,
and Cohen with no clear or concise indication of which claims
are alleged against which officers.[4]
Section
1983 provides that “any person who, acting under color
of law, ‘subjects or causes to be subjected, any
Citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and the
laws' of the United States shall be liable to the injured
party in actions at law.” Shattuck v.
Stratford, 233 F.Supp.2d 301, 306 (D. Conn. 2002)
(quoting 42 U.S.C. § 1983). By comparing the operative
complaint and the briefing, the Court construes the operative
complaint to allege the following active claims: (1)
unreasonable search and seizure by Ramos against Defendant
Lis; (2) excessive force by Ramos against Defendant Lis and
by the Estate against Defendants Kaplan, Lis, and Cohen; (3)
failure to intervene by the Estate against Defendants Kaplan,
Lis, and Cohen; and (4) deliberate indifference to medical
needs by the Estate against Defendants Kaplan, Lis, and
Cohen.
1.
Count 1 - Unreasonable Search and Seizure
i. By
Ramos Against Lis
Ramos
alleges that Defendant Lis arrested him without probable
cause or arguable probable cause in violation of the Fourth
Amendment.[5] The Fourth Amendment protects individuals
against “unreasonable searches and seizures.”
U.S. Const. amend. IV. A warrantless arrest violates the
Fourth Amendment unless it is supported by probable cause.
See United States v. Valentine, 539 F.3d 88, 93 (2d
Cir. 2008) (internal quotation marks omitted) (“[A
warrantless] arrest must be supported by probable cause or
else it violates the Fourth Amendment”).
“Probable cause to arrest a person exists if the law
enforcement official, on the basis of the totality of the
circumstances, has sufficient knowledge or reasonably
trustworthy information to justify a person of reasonable
caution in believing that an offense has been or is being
committed by the person to be arrested.” Id.
(quoting United States v. Patrick, 899 F.2d 169, 171
(2d Cir. 1990)); see also Walczyk v. Rio, 496 F.3d
139, 156 (2d Cir. 2007). The existence of probable cause to
arrest constitutes justification and “is a complete
defense to an action for false arrest.” Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir.
1994)); Fulton v. Robinson, 289 F.3d 188, 195 (2d
Cir. 2002).
We
consider the elements of the offense for which an individual
was arrested to assess the objective reasonableness of the
officers' belief. Lennon v. Miller, 66 F.3d 416,
424 (2d Cir. 1995). “[T]he arresting officer need not
have in hand evidence which would suffice to convict, ”
but an arrest “without a warrant must stand upon firmer
ground than mere suspicion.” Wong Sun v. United
States, 371 U.S. 471, 479 (1963). “The validity of
the arrest does not depend on whether the suspect actually
committed a crime; the mere fact that the suspect is later
acquitted of the offense for which he is arrested is
irrelevant to the validity of the arrest.” Michigan
v. DeFillippo, 443 U.S. 31, 36 (1979).
Conn.
Gen. Stat. § 53a-167a provides that “[a] person is
guilty of interfering with an officer when such person
obstructs, resists, hinders or endangers any peace officer .
. . in the performance of such peace officer's . . .
duties.” Conn. Gen. Stat. 53-167a(a). See Palmer v.
Ruggiero, No. 10-CV-779, 2012 WL 3442411, at *4 (D.
Conn. Aug. 14, 2012) (“Given [the plaintiff's]
failure to comply with [the officer's] orders to leave
the area . . . probable cause existed for arresting him on a
charge of interfering with an officer”); see also
Lagasse v. City of Waterbury, No. 09-CV-391, 2011 WL
2709749, at *4 (D. Conn. Jul. 12, 2011) (collecting cases).
Ramos's
unreasonable search and seizure claim against Defendant Lis
must fail because his arrest for interfering with an officer
was indisputably supported by probable cause. Sergeant Lis
appeared at the scene of the altercation, was informed by the
complainant that that Maldonado, Ramos, or both quarreled
with her and broke her car window while she and her children
were seated inside. [Dkt. 126-8 at 54:7-23]. Sergeant Lis
approached and observed Ramos pushing Maldonado into the
passenger seat of their car. [Dkts. 126-5 at 70:18-71:14;
126-8 at 56:20-57:16]. Sergeant Lis instructed Ramos to move
away from the car where Maldonado was seated. [Dkts. 126-5 at
71:9-11; 126-8 at 57:11-16]. Ramos admitted that he heard
Sergeant Lis say something, which at the time of his
deposition he could no longer recall. [Dkt. 126-5 at 71:5-8].
However, he tacitly admitted it was a command with which he
refused to comply, stating he told Sergeant Lis to wait so he
could get Maldonado fully into the vehicle. [Dkts. 126-5 at
71:1-20, 116; 132-6 at ¶ 4; 126-8 at 57:3-58:25].
Specifically, Ramos testified, “I believe [Sergeant
Lis] said something [before he used mace], I don't recall
what it was.” [Dkt. 126-5 at 71:5-8]. Ramos testified
that Sergeant Lis “probably” wanted Ramos to move
away from the car. Id. at 71:9-11. Ramos further
testified, “I said to [Sergeant Lis] that this is my
brother and I was just trying to be helpful.”
Id. at 71:12-14. When Ramos turned around, he was
pepper sprayed by Lis. [Dkt. 126-8 at 57:18-23].
In his
opposition briefing, Ramos submitted an affidavit further
acknowledging that he refused to comply. He admits he
“heard the police [officer] say something to [him], and
[he did not comply because he] was trying to complete getting
Jose squared away so that [he and Jose] could respond to
them.” [Dkt. 132-6 at ¶ 4]. Despite Ramos's
efforts to recharacterize his refusal to cooperate with
Defendant Lis's commands, the Court finds that the
uncontroverted evidence, including Ramos's own
admissions, shows that Ramos resisted Sergeant Lis's
instruction and obstructed the officer's investigation of
the complaint to which he was responding. For these reasons,
Ramos's unreasonable search and seizure claim fails as a
matter of law and Defendants' Motion for Summary Judgment
on this claim is GRANTED.
2.
Count 1 - Excessive Force
Ramos
and the Estate bring excessive force claims against
Defendants Kaplan, Lis, and Cohen. Excessive force claims are
governed by the Fourth Amendment's “objective
reasonableness” standard. See Graham v.
Connor, 490 U.S. 386, 388 (1989). A police officer may
use force to compel compliance, but “the use of force
is contrary to the Fourth Amendment if it is excessive under
objective standards of reasonableness.” Saucier v.
Katz, 533 U.S. 194, 201-02 (2001) (citing
Graham, 490 U.S. at 388). “Police
officers' application of force is excessive . . . if it
is objectively unreasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” Maxwell v. City
of New York, 380 F.3d 106, 108 (2d Cir. 2004) (internal
citation and quotation marks omitted).
Application
of the objective reasonableness standard “requires a
careful balancing of the nature and quality of the intrusion
on the individual's Fourth Amendment interests against
the countervailing governmental interests at stake.”
Graham, 490 U.S. at 396 (internal citation and
quotation marks omitted). Further, this evaluation must
consider all the facts of the case, including the severity of
the crime, whether the arrestee posed an immediate threat to
the safety of others, and whether he actively resisted the
arrest. Id. at 396; Carey v. Maloney, 480
F.Supp.2d 548, 556 (D. Conn. 2007). Though the Second Circuit
has not yet ruled on the issue, many courts have viewed the
“immediate threat to the safety of the officers or
others” as the most important Graham factor.
See A.K.H. v. City of Tustin, 837 F.3d 1005, 1011
(9th Cir. 2016) (quoting Mattos v. Agarano, 661 F.3d
433, 441 (9th Cir. 2011) (en banc)).
“The
reasonableness of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight. . . . Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, violates the Fourth
Amendment.” Graham, 490 U.S. at 396 (internal
citations omitted). “The calculus of reasonableness
must embody allowance for the fact that police officers are
often forced to make split-second judgments-in circumstances
that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular
situation.” Id. at 396-97. For an officer to
be “grant[ed] summary judgment against a plaintiff on
an excessive force claim, . . . no reasonable factfinder
could conclude that the officers' conduct was objectively
unreasonable.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 123 (2d Cir. 2004).
i. By
Ramos Against Lis
Ramos
claims that Defendant Lis used excessive force against him
when effectuating his arrest by spraying him with pepper
spray. The Second Circuit has held pepper spray “has a
variety of incapacitating and painful effects” and
“constitutes a significant degree of force.”
Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010)
(holding that district court erred in granting summary
judgment for officer where a reasonable jury could find that
“the use of pepper spray deployed mere inches away from
the face of a defendant already in handcuffs and offering no
further active resistance constituted an unreasonable use of
force.”).
Whether
the use of pepper spray is excessive depends on the
circumstances under which it is used. Generally, the use of
pepper spray alone when necessary to compel a potentially
dangerous person to comply with an officer's orders has
not been found to be excessive. Thus, when an arrestee has
not yet been handcuffed or is resisting arrest, various
courts within this district have found that pepper spray is a
reasonable use of force. In addition, courts have held it
appropriate to deploy pepper spray when necessary to
eliminate a risk of harm. McKnight v. Vasile, No.
11-CV-6328P, 2017 WL 1176051, at *28 (W.D.N.Y. Mar. 30, 2017)
(“[W]here an individual is actively resisting arrest
and refusing orders, and the scene presents a risk to officer
safety-courts have granted judgment to the officers on the
grounds that the use of pepper spray was not excessive or
that the officers were entitled to qualified
immunity.”) (collecting cases); see also Buckley v.
Niagara Frontier Transp. Auth., Mfrs., No. 13-CV-1205,
2016 WL 7403812, at *2-3 (W.D.N.Y. Dec. 21, 2016) (granting
summary judgment in favor of officers on excessive force
claim where plaintiff was pepper sprayed after resisting
arrest, flailing about, and attempting to flee while a crowd
was forming); see also Roach v. Okun, No. 13-CV-866,
2017 WL 3638464, at *4-5 (N.D.N.Y. June 6, 2017) (granting
summary judgment in favor of officer on excessive force claim
where plaintiff was pepper sprayed after climbing on a sink
in a holding cell and threatening to hurt himself),
adopted by, No. 13-CV-866, 2017 WL 3638197, at *1
(N.D.N.Y. Aug. 23, 2017); see also Dawson v. City of
Yonkers Police Dept., No. 99-CIV-9877, 2001 WL 969005,
at *4 (S.D.N.Y. Aug. 21, 2001) (granting summary judgment in
favor of officers on excessive force claim where plaintiff
was pepper sprayed after he forced officers into a high speed
chase and violently resisted arrest).
Here,
as explained above, Defendant Lis deployed pepper spray to
compel compliance with his command and to protect himself,
the complainant and her children, and possibly the Plaintiff
from harm. When Defendant Lis came onto the scene alone he
spoke with Liz Bigio who told him that Maldonado had punched
and shattered her car window with her children inside.
Defendant Lis observed the broken glass at the scene. He did
not know for certain whether Ramos, Maldonado or both men
were involved in the altercation and responsible for the
broken window. He had reason to believe that a violent crime
had been committed by Ramos, Maldonado, or both. The
undisputed facts show that Defendant Lis approached Ramos,
who was trying to push Maldonado into a car, and ordered
Ramos to move away from the car. Ramos expressly refused to
comply with Defendant Lis's command. Ramos continued to
try to push his brother into the car even though he knew that
Defendant Lis wanted him to stop. As Ramos huddled with
Maldonado in the car, refusing to comply with his command,
Sergeant Lis could not see everything they were doing. He
could not see if they were preparing to persist in resisting
his authority. When Ramos turned around Defendant Lis did not
know whether Ramos was going to continue to resist and
obstruct, become aggressive, or submit to his authority.
See Bozung v. Rawson, 439 Fed. App'x 513, 520
(6th Cir. 2015) (in determining that force used was
reasonable, court noted “it may have been difficult for
the officers to judge [arrestee's] intentions” to
harm officers). In ...