United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Orr (“Plaintiff”) filed this lawsuit under 42
U.S.C. § 1983 against Sergeant Daniel Ferrucci
(“Sgt. Ferruci”), Officer Keith Shea
(“Officer Shea”), and Officer Jeffrey Schmaling
(“Officer Schmaling”), (collectively the
“Defendants”) of the Waterbury Police Department,
for the alleged use of excessive force during the execution
of a search warrant.
have moved for summary judgment.
reasons that follow, their motion is GRANTED IN
PART and DENIED IN PART.
judgment will be granted on the excessive force claims
brought against Officer Schmaling and Sgt. Ferrucci, the
deliberate indifference claims brought against Officers Shea
and Schmaling, and the false arrest and malicious prosecution
claims brought against all of the Defendants.
judgment is denied on the excessive force claim against
Officer Shea and that claim will proceed to trial.
FACTUAL AND PROCEDURAL BACKGROUND
October 6, 2016, a surveillance officer allegedly saw an
individual, later identified as Mr. Orr, leave 119 Angel
Drive, Apartment E, in Waterbury, Connecticut, engage in a
drug sale, and then return to that address. Defendants'
Statement of Material Facts, ECF No. 69-9 ¶ 18 (July 5,
2017) (“Defs.' SMF”).
Shea, a police officer with the Waterbury Police Department,
Plaintiff's Rule 56(a)(2) Statement, ECF No. 79 ¶
1(Sept. 30, 2019) (“Pl.'s R. 56(a)(2)”), and
Jeffrey Schmaling, who has worked at the Waterbury Police
Department since January 7, 2011, and currently as a
detective, id. at 6, learned about the surveillance
officer's observations, before participating in the
execution of a search and seizure warrant for 119 Angel
Drive, Apartment E in Waterbury, Connecticut. Id.;
Defs.' SMF ¶ 4.
that same day, Mr. Orr, who allegedly had been sitting on the
couch in the living room playing a video game, and smoking a
cigarette, allegedly heard a loud bang and the shout of
“Police!” Pl.'s R. 56(a)(2). ¶¶
46-49. Jermaine Robinson, who allegedly sat opposite to Mr.
Orr on the couch, allegedly ran after hearing the words
“search warrant!” Id. ¶ 50. An
officer allegedly ran past Mr. Orr to catch Mr. Robinson.
Officer Shea entered the apartment, he allegedly saw Mr. Orr
sitting on a couch in the living room, near a table with a
plastic bag with two brick-shaped bundles wrapped in green
plastic wrap, which Officer Shea thought was heroin.
See Pl.'s R. 56(a)(2) ¶ 6 (Officer Shea
allegedly recognized the bundles as heroin, although Mr. Orr
denies being familiar with the wrapped bundles). Officer Shea
also allegedly saw a glass jar containing what he thought
might be marijuana. Id. ¶ 7; Defs.' SMF
¶ 8. According to Officer Shea, Mr. Orr appeared to
stand up and begin to run. Defs.' SMF ¶ 10. Officer
Shea then pushed Mr. Orr to the floor to prevent him from
escaping. Defs.' SMF ¶ 11. Because of the presence
of drugs, Officer Shea worried about whether Mr. Orr was
armed. Id. ¶ 9. After Mr. Orr was on the
ground, Officer Shea placed Mr. Orr in handcuffs.
Id. ¶ 12. A pipe was later found in his
possession. Id. ¶ 53.
contrast, Mr. Orr claims that he remained seated on the
couch, and watched the police officers arrest Jermaine
Robinson. Pl.'s R. 56(a)(2) ¶¶
Schmaling also helped execute the search and seizure warrant.
Id. ¶ 17. He allegedly never entered the
apartment, but remained outside in an unmarked vehicle, until
after both Mr. Orr and Mr. Robinson had been arrested.
Id. ¶ 21; Defs.' SMF ¶ 20. By the time
he entered the apartment, Mr. Orr allegedly was seated on the
couch and in handcuffs. Pl.'s Rule 56(a)(2) ¶ 21;
Defs.' SMF ¶ 21. Officer Schmaling wrote a
Case/Incident Report of the execution of the search and
seizure warrant. Pl.'s Rule 56(a)(2) ¶ 22. He spoke
with officers, including Officer Shea. Id. ¶
23. Officer Shea reported that he placed Mr. Orr under
arrest, after first pushing him to the ground and placing him
in handcuffs. Id. Mr. Orr contests the accuracy of
the report because it fails to state that Mr. Orr was seated
during his arrest. Pl.'s Rule 56(a)(2) ¶ 24.
claims an assault by Officer Shea. In his view, Officer Shea
hit him in his mid-back and spine, while he was seated,
id. ¶¶ 28-30, without warning, causing him
to fall forward and hit his face with his legs. Id.
¶ 31; Defs.' SMF ¶¶ 31-32. The event
happened fast, taking a matter of seconds to occur. Pl.'s
Rule 56(a)(2) ¶ 43. He “felt like a ‘throb,
throb, throb, throb, throb, throb' and it was like a
spasm and the pain did not go anywhere else other than the
area of his back.” Id. ¶ 81. When he
fell, he received a bruise, which he did not notice until the
next day. Id. ¶ 36. He recalls the dull ache,
but never got to see the bruise because he did not have
access to a mirror. Id. ¶ 37.
to Mr. Orr, Sgt. Ferrucci was in the living room and oversaw
the arrest of Mr. Robinson. Id. ¶ 60.
admits that he only saw Officer Schmaling at the Waterbury
Police Department. Id. ¶ 55. He identified
Officer Schmaling as being involved because Officer Schmaling
wrote the police report and spoke to him at police
headquarters. Id. ¶ 54. Mr. Orr also admits
that he never spoke with Sgt. Ferrucci, but found his name on
Officer Schmaling's report, listed as Officer
Schmaling's supervisor. Id. ¶ 56.
at the Waterbury Police Department, Mr. Orr acknowledges he
never requested a medical evaluation while meeting with the
officers or during the booking process. Id. ¶
63. The police officers allege that Mr. Orr admitted a level
of intoxication of 6 on a scale from 1-10 and that he was
“function[ing] but high.” Id. ¶ 67.
Mr. Orr denies having made these comments. Id.
October 7, 2016, Mr. Orr arrived at the New Haven County
Correctional facility, where he remained for eight or nine
months. Id. ¶ 38. While at New Haven
Correctional Center, Mr. Orr allegedly sought medical
treatment on the second or third day of being there.
Id. ¶¶ 39-40; Defs.' SMF ¶ 40. He
allegedly recalls the pain as a dull ache. Pl.'s Rule
56(a)(2) ¶ 64.
the charges in connection to the October 6, 2016 search
against Mr. Orr were dismissed, Mr. Orr received a five-year
prison sentence for violating the terms of his probation from
an unrelated incident. Id. ¶ 65.
15, 2017, Sgt. Ferrucci, Officer Schmaling, Officer Shea, and
the Waterbury Police Department removed this case from
Connecticut Superior Court. Notice of Removal, ECF No. 1 (May
15, 2017); see Notice of Pending Motions, ECF No. 3
(May 15, 2017); Notice of Statement of Joseph A. Mengacci,
ECF No. 4 (May 15, 2017).
14, 2017, Mr. Orr moved for summary judgment. Mot. for
Summary Judgment, ECF No. 11 (June 14, 2017).
5, 2017, Defendants responded. Mem. in Opp., ECF No. 14 (July
5, 2017); Response to Pl.'s Local Rule 56(a)1 Statement,
ECF No. 13 (July 5, 2017); Corrected Response to Pl.'s
Local Rule 56(a)1 Statement, ECF No. 15 (July 5, 2017);
Second Corrected Response to Pl.'s Local 56(a)1
Statement, ECF No. 16 (July 5, 2017); Answer, ECF No. 17
(July 6, 2017).
August 25, 2017, Mr. Orr filed a motion to appoint counsel
and a reply to Defendant's response to his motion for
summary judgment. Mot. to Appoint Counsel, ECF No. 18 (Aug.
25, 2017); Reply, ECF No. 19 (Aug. 25, 2017).
October 12, 2017, Defendants moved for an extension of time
to respond to requests for admissions. Mot. for Extension of
Time, ECF No. 20 (Oct. 12, 2017).
October 13, 2017, the Court granted this motion. Order, ECF
No. 21 (Oct. 13, 2017).
November 9, 2017, Defendants filed a second motion for an
extension to respond to requests for admissions and a motion
for an extension of time for discovery and filing dispositive
motions. Mot. for Extension of Time, ECF No. 23 (Nov. 9,
2017); Mot. for Extension of Time, ECF No. 22 (Nov. 9, 2017).
The Court granted both motions on November 10, 2017. Order,
ECF No. 24 (Nov. 10, 2017); Order ECF No. 25 (Nov. 10, 2017).
November 17, 2017, Mr. Orr filed an objection to the first
motion for an extension of time to respond to requests for
admissions (ECF No. 20). Obj. to Mot. for Extension of Time,
ECF No. 26 (Nov. 17, 2017).
January 10, 2018, Defendants filed another motion for an
extension of time for discovery deadlines and for dispositive
motions. Mot. for ...