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Orr v. Ferrucci

United States District Court, D. Connecticut

November 8, 2019

ANTHONY ORR, Plaintiff,



         Anthony 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.

         Defendants have moved for summary judgment.

         For the reasons that follow, their motion is GRANTED IN PART and DENIED IN PART.

         Summary 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.

         Summary judgment is denied on the excessive force claim against Officer Shea and that claim will proceed to trial.


         A. Factual Background

         On 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”).

         Keith 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.

         Later 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. Id.

         When 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.

         In 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) ¶¶ 46-51.[1]

         Officer 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.

         Mr. Orr 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.

         According to Mr. Orr, Sgt. Ferrucci was in the living room and oversaw the arrest of Mr. Robinson. Id. ¶ 60.

         Mr. Orr 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.

         While 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.

         On 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.

         Although 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.

         B. Procedural History

         On May 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).

         On June 14, 2017, Mr. Orr moved for summary judgment. Mot. for Summary Judgment, ECF No. 11 (June 14, 2017).

         On July 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).

         On 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).

         On 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).

         On October 13, 2017, the Court granted this motion. Order, ECF No. 21 (Oct. 13, 2017).

         On 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).

         On 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).

         On January 10, 2018, Defendants filed another motion for an extension of time for discovery deadlines and for dispositive motions. Mot. for ...

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