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Ramos v. Town of East Hartford

United States District Court, D. Connecticut

July 2, 2019

WILSON RAMOS, As Administrator of The Estate of Jose A. Maldonado, and Individually, Plaintiff,
TOWN OF EAST HARTFORD et al., Defendants.


          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]



Maldonado begins moving towards the door of the holding cell.


Maldonado grabs the sliding door of the holding cell.


Maldonado pushes the sliding door of the holding cell open and steps into the threshold of the door.


Maldonado reaches the officers standing immediately outside of the sliding door of the holding cell.


Maldonado is punched and pushed backwards towards the holding cell.


Maldonado is pushed backwards and reenters the holding cell.


Maldonado struggles with the officers who are crowded in the entrance of the cell. Maldonado punches forward towards the officers with his right arm.


Maldonado continued to struggle with the officers.


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.


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.


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.


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.


Sergeant Lis runs towards Maldonado and hovers over him.


Sergeant Lis stays near Maldonado leaning over him.


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.


Maldonado braces his right arm on the floor and lifts his upper body off the floor.


Maldonado sits on the floor with his upper body slumped forward over his legs.


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.


Maldonado remains seated leaning forward as his torso rocks slightly from side-to-side.


The officers stand back from Maldonado who is still seated and leaning very far forward.


Sergeant Lis takes out his handcuffs and moves towards Maldonado.


Sergeant Lis and Officer Cohen continue to move towards Maldonado.


Sergeant Lis and Officer Cohen move Maldonado in preparation for handcuffing him.


Sergeant Lis moves away from Maldonado towards Officer Kaplan and Ramos in the corner of the holding cell.


Officer Cohen moves Maldonado to his side and begins handcuffing his wrists.


Officer Kaplan joins Officer Cohen to assist in handcuffing Maldonado.


Officers Kaplan and Cohen pull Maldonado's arms behind his back and cuff him.


Officers Kaplan and Cohen stand up behind Maldonado.


Officer Cohen moves away from Maldonado towards the door of the holding cell.


All three officers are stand in a circle around Maldonado. Ramos remains in the corner of the holding cell.


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.


Sergeant Lis, looking at Ramos, waves his hand towards the door of the holding cell.


Ramos exits the holding cell followed by Sergeant Lis. Officers Cohen and Kaplan move towards the door of the holding cell.


Officer Kaplan exits the holding cell followed by Officer Cohen.


All three officers leave the holding cell and remain in the area outside the open door of the holding cell.


One of the officers slides the door of the holding cell closed.


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



Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.

2:07:27-2:07:29 [3]

Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


Maldonado seen moving slightly.


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 ...

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