United States District Court, D. Connecticut
MEMORANDUM OF DECISION
M. SPECTOR, UNITED STATES MAGISTRATE JUDGE
plaintiff Lamar Woodhouse, incarcerated and pro se,
commenced this action against New Haven Police Officers
Gregory Pellicone,  Lars Vallin and Eric Pesino, in their
individual personal capacities, alleging excessive force
under the Fourth Amendment. (Doc. No. 1; see Doc.
No. 8 (dismissing New Haven Police Department as a
defendant)). On June 5, 2018, the parties filed a Notice of
Consent (Doc. No. 35), and on August 30, 2018, this case was
transferred to Magistrate Judge Donna F. Martinez for trial.
(Doc. No. 41). On September 28, 2018, Judge Martinez granted
the plaintiff's Motion to Appoint Counsel (Doc. No. 43),
and pro bono counsel was appointed on October 3,
2018. (Doc. No. 44). On June 20, 2019, this case was
transferred to this Magistrate Judge. (Doc. No. 70). A bench
trial was held before the undersigned on September 11, 2019;
the plaintiff and defendants Vallin and Pesino testified.
(Doc. No. 88). On September 20, 2019, the parties filed
post-trial briefs. (Doc Nos. 92-93; see also Doc.
reasons set forth below, judgment shall enter in favor of the
defendants Lars Vallin and Eric Pesino.
on the entire record developed during trial, comprised of
credible testimony and admitted exhibits, the following
constitutes the Court's findings of fact pursuant to
plaintiff is incarcerated in Osborn, Connecticut at Osborn
Correctional. Defendants Vallin and Pesino were police
officers with the New Haven Police Department at the time of
plaintiff grew up in New Haven, Connecticut. From 2000 to
20002, when he was 18 to 20 years old, he dated Leila Sanchez
while he was a student at Housatonic Community College.
During those two years, the plaintiff met Ms. Sanchez's
mother, Maribel Rivera. From 2010 to 2013, the plaintiff was
in living in Georgia, songwriting “in the music
industry.” He moved back to New Haven in October 2013
after his “career tanked, ” and he was
“kicked out of Georgia” for a violation of
November 2014, the plaintiff was “basically homeless,
” living out of his van in New Haven. As the plaintiff
explained it, from 2013 to 2014, he was drug dependent,
“basically in the street” using phencyclidine
[“PCP”] and cocaine.
November 21, 2014, the plaintiff was hanging out at the Best
Gas gas station on Whalley Avenue, near Sherman Road. The
plaintiff was with Aeyisha Wright; he met up with Ms. Wright
at the gas station to hang out. About thirty minutes after
the plaintiff and Ms. Wright met up, the plaintiff's
ex-girlfriend, Ms. Sanchez, drove into the gas station lot.
Since returning to Connecticut, the plaintiff had seen Ms.
Sanchez at Edgewood Park with her boyfriend occasionally, so
he recognized her when she pulled in, but on that night, he
noticed that her face was swollen. Ms. Sanchez told the
plaintiff that her boyfriend had beat her up and that she had
come to the gas station to buy cigarettes but realized she
left her purse, with her money, at her house. Ms. Sanchez
asked the plaintiff and Ms. Wright if they wanted to come
back to her house with her to get her purse; she claimed that
her boyfriend who had abused her might be there.
plaintiff, Ms. Sanchez and Ms. Wright rode in Ms.
Sanchez's car down the street to Ms. Sanchez's house
at 65 Blake Street. Ms. Sanchez told the plaintiff that 65
Blake Street was her house, and her mother, Ms. Rivera, had a
bedroom on the second floor where she stayed with Ms.
Sanchez's children. While they rode to the house, they
discussed calling the plaintiff's “weed guy”
to purchase some weed since Ms. Sanchez had money at the
they arrived at the house, Ms. Sanchez pulled into the
driveway, and they all got out of the car and approached the
front door. Ms. Sanchez did not have her house keys because
she had left her purse inside the house. Ms. Sanchez rang the
doorbell repeatedly. Ms. Rivera, Ms. Sanchez's mother,
could see the three of them at the front door, and, speaking
out of a window on the second floor, she told Ms. Sanchez
that if she did not have her key, she was not coming inside
the house. Ms. Sanchez then forced entry by kicking in the
front door. The three of them then proceeded up the stairs,
but the door at the top of the stairs was locked. At that
point, Ms. Sanchez told the plaintiff and Ms. Wright that the
back door was open so they could enter through that door
plaintiff, Ms. Sanchez and Ms. Wright went around the house,
entered from the back door and proceeded up a flight of
stairs to the second-floor landing, and then up a second
flight of stairs to Ms. Sanchez's third-floor attic
apartment. There was no door leading into the second floor
living area, just a door frame, so, as they proceeded up the
stairs, Ms. Rivera could see them in the stairwell.
the three of them reached the attic, Ms. Sanchez retrieved
her purse and they discussed who would call the “weed
guy.” At that point, the plaintiff heard police sirens
and saw Ms. Rivera running outside. It was a span of
approximately three to five minutes from the time the
plaintiff, Ms. Sanchez and Ms. Wright arrived at Ms.
Sanchez's house, until the police arrived at the house.
Sanchez went downstairs through the second floor, used the
front staircase and confronted the police to explain to them
that this was her house. The plaintiff and Ms. Wright wanted
to leave, so they decided to walk down the rear stairwell
they had just used to enter the third-floor apartment.
Gregory Pellicone was the first officer on the scene and, as
such, was the lead investigating officer; all of the other
officers who arrived thereafter were cover officers,
providing assistance to the Officer Pellicone. (See
Pl.'s Ex. 17 at 8). When Officer Eric Pesino arrived, he
noticed several officers on the premises, and damage to one
of the doors. (See Pl.'s Ex. 17 at 18). The
officers were responding to a call of a burglary in progress.
Lars Vallin arrived with his police K-9, Xander. Xander is a
Dutch Shepard; he was Officer Vallin's personal dog who
he began training as a K-9 approximately seven years before
this incident in question. Officer Vallin and Xander were
often called to crimes in progress, such as in this case,
which involved a burglary in progress, or to cases in which a
suspect was fleeing or a weapon was involved. (Pl.'s Ex.
arrived, Officer Vallin believed that the situation was
“not as elevated anymore” because the officers on
scene informed him that they had already apprehended someone.
As he was preparing to leave, Ms. Rivera approached him and
was “very upset” and “agitated”;
she told him that there was a male still inside her house.
She was “extremely fearful and very adamant” that
Officer Vallin not leave the scene. (See Pl.'s
Ex. 18 at 16-17). In light of the Ms. Rivera's demeanor,
Office Vallin had “every reason to believe there was
someone hiding” inside the house.He viewed her
report as “very concerning because [then the officers]
don't know if - why, in fact, this person might be
hiding, whether they're armed or not, so it's
definitely an officer safety issue.” (Pl.'s Ex. 18
at 17). The only information Officer Vallin had about the
individual was that he was “male, ” was an
“unknown burglary suspect” and was hiding
somewhere on the second floor. (Pl.'s Ex. 18 at 21).
Vallin called out to the other officers that he was going to
the second floor to search for someone whom he was told was
hiding. When a K-9 is used at a burglary in progress call,
the general practice varies from one handler to another; the
dog can be sent in alone, or with his handler. (Pl.'s Ex.
at 12). Officer Vallin explained that his practice was to
keep his K-9 within his sight at all times; he would keep him
on his leash if he was not certain if there were officers or
other individuals in the house who could come into contact
with the K-9. (Pl.'s Ex. at 13-14).
Vallin entered the second floor with Xander on his leash. As
he moved close to the kitchen area, Officer Vallin gave an
announcement that there was a dog on the premises, and that
the dog would be used to search the dwelling. If anyone was
hiding, the announcement was intended to give the person
every opportunity to come out voluntarily. (Pl.'s Ex. 18
at 14; see also Pl.'s Ex. 9 (General Order
452.4(D) (“Unless it would otherwise increase the risk
of injury or escape, a clearly audible warning to announce
that a patrol K-9 dog will be released if the person does not
come forth, shall be made prior to releasing a police service
dog.”)). Officer Vallin made this announcement as soon
as he reached this second floor area because “exigent
circumstances” existed in that he did “not know
exactly where [the person] may be in the house, and [he did]
not know if they ha[d] access to exit the house[.]”
(Pl.'s Ex. 18 at 19).
he gave the announcement, he saw the plaintiff appear, either
from behind a door, or from behind a door frame. As the
plaintiff testified, Officer Vallin saw him when he was in
the “back hallway.” Officer Vallin acknowledged
that he saw the plaintiff emerge from some type of doorway
opening, and he could not recall if it was the back hallway.
(See Pl.'s Ex. 18 at 24 (“then a door, I
believe it was a closet, flung open, and a male came out, and
he looked at me, and I told him to get on the
ground.”)). At that point, Officer Vallin ordered him
to get on the ground. The plaintiff described Officer
Vallin's commands as “screaming” at him to
get to the ground. The plaintiff testified that he put his
hands up and was starting to comply. Officer Vallin testified
that the plaintiff did not comply, so Officer Vallin again
ordered the plaintiff to get on the ground. The plaintiff,
however, did not comply but instead, looked towards the rear
stairwell area and made a sudden move to run toward that
stairwell. (See Pl.'s Ex. 18 at 27). At that
moment, Officer Vallin, believing the plaintiff to be a
burglary suspect, was concerned that, if he made it into the
back stairwell, he would be able to flee the home. Officer
Vallin was also concerned that, if there was an officer in
the stairwell, and he released the dog into the stairwell, he
would put that officer in danger. Officer Vallin made the
“split second decision to release the dog.”
(See Pl.'s Ex. 18 at 27).
released Xander, Officer Vallin uttered the German command,
“packen, ” which is the signal for Xander to
apprehend a suspect. (Pl.'s Ex. 18 at 9-10, 28). In light
of the split-second decision, Officer Vallin did not have the
time to release Xander's leash from the collar. He just
dropped the leash and let the dog respond to the command.
Xander reached the plaintiff before ...