Woodhouse v. L. Vallin

          MEMORANDUM OF DECISION

          ROBERT M. SPECTOR, UNITED STATES MAGISTRATE JUDGE

         The plaintiff Lamar Woodhouse, incarcerated and pro se, commenced this action against New Haven Police Officers Gregory Pellicone, ^[1] 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. Nos. 94-95).

         For the reasons set forth below, judgment shall enter in favor of the defendants Lars Vallin and Eric Pesino.

         I. FACTUAL FINDINGS

         Based 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 Fed.R.Civ.P. 52(a)(1):

         The 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 this incident.

         The 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 probation.

         In 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.

         On 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.

         The 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 house.

         When 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 instead.

         The 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.

         Once 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.

         Ms. 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.

         Officer 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.

         Officer 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. at 7).

         When he 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.^[2]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).

         Officer 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).

         Officer 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).

         After 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).

         As he 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 ...