Caban v. Dupont et al
MEMORANDUM OF DECISION denying 46 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 5/6/2011. (Heard, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
OFFICER JOHN DUPONT and
TOWN OF EAST HARTFORD,
No. 3:09cv786 (WWE)
MEMORANDUM OF DECISION ON
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
The genesis of this action is the arrest of plaintiff Elba Caban by defendant Town
of East Hartford Police Officer John Dupont. Plaintiff alleges that Officer Dupont and
the Town of East Hartford (the “Town”) are liable for violation of her constitutional rights
pursuant to 42 U.S.C. § 1983 because she was arrested with excessive force. Plaintiff
also asserts a state law claim of assault and battery against defendant Dupont. The
Town has filed a motion for summary judgment as to its liability.1
The parties have submitted statements of undisputed facts, exhibits and
supporting materials that reveal the following undisputed facts.
On November 29, 2007, at approximately 3:00 p.m., plaintiff had an argument
with her brother, Alfredo Cortez, at a residence on Sisson Street, East Hartford. During
the argument, plaintiff’s other brother Hector tried to restrain plaintiff because he
thought she was going to hit Alfredo. Plaintiff, who was angry and upset, left the house
Defendant Dupont has not moved for summary judgment on the claim of
to go to the gym.
Defendant Officer John Dupont reported to the residence on Sisson Street
because the East Hartford police had been called. He was informed that plaintiff had
been involved in a verbal confrontation that became physical.
Subsequently, Officer Christopher Vasseur stopped plaintiff’s vehicle as she
entered the I-84 West on-ramp. Later, Officers Darrell Drouin and Dupont arrived.
Officer Dupont advised plaintiff that she was under arrest for disorderly conduct based
on his investigation at the Sisson Street residence and asked for her license. He told
her that he was going to give her a ticket.
During her interaction with Officer Dupont, plaintiff got out of her car and got on
her knees. Officer Dupont told her to get off the street and that she was under arrest
and going to jail. He grabbed plaintiff by her right arm and escorted her out of the
roadway back to her car. Plaintiff’s arm broke while Officer Dupont attempted to
A motion for summary judgment must be granted if the pleadings, discovery
materials before the court and any affidavits show that there is no genuine issue as to
any material fact and it is clear that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A dispute regarding a material fact is genuine if there is sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to
demonstrate the absence of any material factual issue genuinely in dispute. Am. Int’l
Group, Inc. v. London Am. Int’l Corp., 664 F.2d 348, 351 (2d Cir. 1981).
If a nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof, then summary
judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party
submits evidence which is “merely colorable,” legally sufficient opposition to the motion
for summary judgment is not met. Liberty Lobby, 477 U.S. at 24. The mere existence
of a scintilla of evidence in support of the nonmoving party’s position is insufficient;
there must be evidence on which the jury could reasonably find for her. See Dawson v.
County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the court resolves all ambiguities and draws all
permissible factual inferences in favor of the nonmoving party. See Patterson v.
County of Oneida, 375 F.3d 206, 218 (2d Cir. 2004). If there is any evidence in the
record from which a reasonable inference could be drawn in favor of the opposing party
on the issue on which summary judgment is sought, summary judgment is improper.
See Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d
Claim against the Town
Plaintiff asserts that the East Hartford has developed and maintained a policy or
custom of deliberate indifference to civilian complaints of excessive force by its police
department and that such indifference has led to the violation of plaintiff’s constitutional
A municipality is liable for deprivation of a citizen’s rights pursuant to 42 U.S.C.
§ 1983 when execution of a government's policy or custom inflicts the injury. Monell v.
New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978). A plaintiff may
establish the custom or policy by showing that the municipality, alerted to the possibility
of unconstitutional conduct such as excessive force, exhibited deliberate indifference.
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). To sustain a Monell claim
based on a failure to supervise or discipline, the plaintiff must demonstrate that the
municipality was on notice of a potentially serious problem of unconstitutional conduct,
that the need for corrective action was obvious, and that the municipality failed to
investigate or take action in circumstances suggesting deliberate indifference to the
rights of those being harmed. Amnesty America v. Town of West Hartford, 361 F.3d
113, 128 (2d Cir. 2004). Where a municipality’s efforts to evaluate the claims of
excessive force “are so superficial as to suggest that its official attitude was one of
indifference to the truth of the claim, such an attitude would bespeak an indifference to
the rights asserted in those claims.” Fiacco v. City of Rensselaer, 783 F.2d 319, 328
(2d Cir. 1986). In Fiacco, the Chief of Police conducted the investigations into citizen
complaints according to however much information he deemed necessary, which
consisted generally of interviewing only the officers involved, with no formal statement
being taken from the complainant, no file or written record being created, and no
hearing held. Id. at 331. However, if the municipality has taken steps to address or
investigate the violation, plaintiff must show that the response was so patently
inadequate so as to amount to deliberate indifference. Reynolds v. Giuliani, 506 F.3d
183, 192 (2d Cir. 2007).
Here, plaintiff argues that the Town has not provided any undisputed facts
relevant to the claim of municipal liability. Further, plaintiff proffers evidence that the
Town had received 28 civilian complaints of excessive force before plaintiff’s arrest and
five thereafter. Ten of these complaints of excessive force were against defendant
Dupont. Plaintiff points out that the Town credited the police officers’ versions of the
complained of events and sustained none of the complaints. Plaintiff suggests that the
investigations into the complaints appear to have been incomplete or biased.
The Court agrees that defendant has failed to support its motion for summary
judgment with a Local Rule of Civil Procedure 56 statement of undisputed facts relevant
to its municipal liability. Local Rule 56 requires the movant to provide “a concise
statement of each material fact.” In this instance, the material facts comprise those
facts relevant to the pattern and practice of the Town in responding to excessive force
complaints. Nevertheless, the Court will review the argument for summary judgment on
In its brief, defendant responds that its investigators interviewed relevant
witnesses and credited the officers’ versions of the facts when non-officer witnesses
offered conflicting accounts or where certain complainants did not cooperate or return
the investigators telephone calls. The evidence submitted with the brief indicates that
investigations into the complaints occurred but that, upon the occurrence of conflicting
accounts, the investigator concluded consistently that reasonable force had been
applied. Defendant Town argues that plaintiff cannot raise a genuine issue of fact
based on disagreement with the outcome of the investigation.
However, the record before the Court is lacking in information concerning the
internal review process and the amount of discretion afforded the investigator.
Accordingly, the Court cannot assess the investigations from the evidence adduced,
and genuine issues of fact do exist as to whether the Town has a pattern or practice of
deliberate indifference to acts of excessive force by its officers. The Court will leave
plaintiff to her proof.
For the foregoing reasons, the Motion for Summary Judgment [doc. #46] is
Dated this __6th__ day of May, 2011 at Bridgeport, Connecticut.
Warren W. Eginton
Senior United States District Judge
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