Nelson v. City of Stamford et al

Filing 185

ORDER granting in part and denying in part 141 Motion for Summary Judgment; granting in part and denying in part 144 Motion for Summary Judgment. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 1/25/12. (Hildebrand, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

EDWARD NELSON and
PATRICIA NELSON,
Plaintiffs,
v.
CITY OF STAMFORD, et al.
Defendants.

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CIVIL ACTION NO.
3:09-cv-1690 (VLB)
January 25, 2012

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [Dkt. #141, #144]

Plaintiffs, Edward and Patricia Nelson, filed a twenty-one count complaint
which fails to present a clear and concise statement of the facts supporting any
claim. The complaint consists of a litany of facts, inferences and legal
conclusions, followed by allegations of twenty-one specific causes of action all
predicated upon the exact same litany of facts, inferences and legal conclusions.
Plaintiffs’ claims arose out of an incident at a bar in Stamford, Connecticut on
October 22, 2006. Both Patricia and Edward Nelson were arrested after a security
officer at the bar reported witnessing Edward strike Patricia outside the bar.
Although the Court is challenged to construe the complaint as making out
any cause of action other than excessive force violations on behalf of both
Patricia and Edward Nelson pursuant to 28 U.S.C. §1983 as guaranteed by the
Fourth Amendment, the Plaintiffs appear to raise many additional claims,
including strip searches in violation of the Fourth Amendment pursuant to 28
U.S.C. §1983, several Connecticut common law causes of action, including
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Recklessness and Negligence, Intentional Infliction of Emotional Distress,
Negligent Infliction of Emotional Distress, Assault and Battery, False
Imprisonment, and several others.
Currently pending before the Court is a Motion for Summary Judgment
filed by all Defendants, City of Stamford, Chief Brent B. Larrabee, Lieutenant
Francis Cronin, Lieutenant William Watrous, Sergeant Thomas J. Scanlon,
Sergeant Kevin Fitzgibbons, Sergeant Christian DiCarlo, Sergeant Louis
DeRubeis, Police Officer David Dogali, Police Officer Michael Connelly, Police
Officer Brendetta Baines, and Police Officer Mark Ligi as to all claims brought
against them by Patricia and Edward Nelson in the Third Amended Complaint
pursuant to Fed. R. Civ. P. 56(a).

I.

Factual Background
The following facts relevant to Defendants’ motion for summary judgment

are undisputed unless otherwise noted.1
The parties agree that on October 22, 2006 at t 12:39 am, Anthony Hinton, a
security officer at the club, flagged down Defendant Stamford Police Officer
Dogali who was driving down Greenwich Avenue in front of the club while on
patrol in the area. [Dkt. #160, Ex. 29, Defendant Dogali Stamford Police Incident
Report]. Hinton informed Defendant Dogali that he observed Plaintiffs, Edward
and Patricia Nelson, arguing outside of the club, culminating in Edward punching
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All of the exhibits attached to Plaintiff Patricia Nelson’s Memorandum in
Opposition to Summary Judgment are also filed as exhibits attached to Plaintiff
Edward Nelson’s Memorandum in Opposition to Summary Judgment.
Therefore, when referencing an exhibit which has been attached to both Plaintiffs’
Memoranda, the Court will provide only one citation, rather than cite to the same
exhibit in each Plaintiffs’ Memorandum.
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Patricia in the face. [Id.]. Hinton reported that approximately 10 to 12 patrons in
front of the club also observed the incident. [Id.]. Hinton then identified Edward
Nelson, who was walking back towards the club, as the man who was involved in
the altercation at issue. [Id.].
Defendant Dogali then approached Edward Nelson and attempted to ask
him if he was involved in a dispute with a female. [Dkt. #160, Ex. 29, Defendant
Dogali Stamford Police Incident Report]. Defendant Dogali indicated in his
incident report that Edward Nelson became immediately hostile and refused to
answer any questions. Mr. Nelson was heavily under the influence of alcohol.
[Dkt. #160, Ex. 46, Stamford Hospital Medical Record]. Defendant Dogali further
reports that as he attempted to place Edward Nelson under arrest, Patricia Nelson
approached them screaming that she wanted to have Edward Nelson arrested
and that she intended to press charges against him. [Id.]. Relying on the initial
complaint from Hinton along with Hinton’s identification of Mr. Nelson, Defendant
Dogali then advised Mr. Nelson that he was under arrest for 3rd Degree Assault
and 2nd Degree Breach of Peace, and asked Mr. Nelson to place his arms behind
his back. [Id.]. After Mr. Nelson ignored this instruction, Defendant Dogali
grabbed Mr. Nelson’s right arm and placed it behind his back, applying one
handcuff on Mr. Nelson’s right arm. [Id.]. Defendant Dogali then asked Mr. Nelson
to place his left arm behind his back. [Id.]. After Mr. Nelson again refused to
comply with the instruction, Defendant Dogali attempted to place Mr. Nelson’s left
hand behind his back, but was unable to overpower Mr. Nelson. [Id.]; [Dkt. #141,
Ex.5, Affidavit of Defendant Dogali, ¶¶7-8]. Defendant Dogali weighed around one

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hundred ninety pounds (190) at the time of the arrest, and Defendant Dogali found
Mr. Nelson to be much heavier and more powerful. [Dkt. #141, Ex. 4, Affidavit of
Defendant Dogali, ¶5]. Defendant Dogali felt that with a handcuff on only one or
Mr. Nelson’s writs and the other hand swinging loosely, he was presented with a
dangerous situation exposing himself and potential bystanders to serious injury
if Mr. Nelson began to swing his right arm. [Id. at ¶9].
While Defendant Dogali was placing Mr. Nelson under arrest, Defendant
Stamford Police Officer Connelly arrived on the scene. [Dkt. #160, Ex. 29,
Defendant Dogali Stamford Police Incident Report]. As Defendant Dogali
attempted to handcuff Mr. Nelson, Mrs. Nelson approached and lunged at
Defendant Dogali. [Id.]. Mrs. Nelson was heavily under the influence of alcohol.
[Dkt. #160, Ex. 46, Stamford Hospital Medical Records for Patricia Nelson]. Officer
Connelly grabbed Mrs. Nelson as she moved towards Defendant Dogali.
Defendant Sergeant Scanlon then arrived on the scene and observed Mr. Nelson
screaming and struggling with Defendant Dogali, attempting to place his left arm
in handcuffs. [Id.]; [Dkt. #159, Ex. 34, Defendant Sergeant Scanlon Stamford
Police Incident Report]. Defendant Scanlon advised Mr. Nelson that if he did not
comply with the Officers’ instructions a Taser would be used. [Dkt. #160, Ex. 29];
[Dkt. #159, Ex. 34]. Defendant repeated the warning a second time. [Dkt. #159, Ex.
34]. After Mr. Nelson again refused to comply, Defendant Scanlon applied the
Taser to Mr. Nelson’s left leg and the Officers were able to handcuff Mr. Nelson’s
left arm. [Dkt. #160, Ex. 29]; [Dkt. #159, Ex. 34]. Mr. Nelson was then transported
to the Stamford Police Department. [Dkt. #160, Ex. 29].

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After intercepting Mrs. Nelson’s lunge at Defendant Dogali, Defendant
Connelly attempted to place Mrs. Nelson in handcuffs. [Dkt. #160, Ex. 27,
Defendant Connelly Stamford Police Incident Report]. Defendant Connelly
reports that Mrs. Nelson attempted to break free of his grip, pulling her right arm
violently away from him and continuing to move towards Defendant Dogali
screaming “get off me mother fucker.” [Id.]. Defendant Connelly then pushed
Mrs. Nelson against a parked vehicle and attempted to place handcuffs on her.
[Id.]. Mrs. Nelson struggled to break free, and after several attempts Defendant
Connelly secured her in handcuffs, placed her in his patrol vehicle, and
transported her to the Stamford Police Department. [Id.].
Plaintiffs, Mr. and Mrs. Nelson, vehemently dispute this version of their
arrests. Instead, Mr. Nelson contends that Defendant Sergeant Scanlon
“conspired with the other officers to make up a narrative” where Mr. Nelson and
his wife were “fighting with the officers and there was this big struggle,” but
actually Mr. Nelson and his wife were not in the same location. [Dkt. #160, Ex. 33,
Dep. of Edward Nelson, 11:20-25].
Mr. Nelson admits that he was approached by Defendant Dogali and asked
if he was involved in a dispute with a female. [Dkt. #159, Ex. 1, Pl. Edward
Nelson’s Rule 56(a)(2) Stmt., ¶3]. Mr. Nelson admits that he stated that he was
studying to be an attorney and did not need to answer Defendant Dogali’s
questions. [Id. at ¶4]. Mr. Nelson admits that he passively resisted being placed
in handcuffs. [Dkt. #159, Ex. 22, Deposition of Edward Nelson, 20:4-8]. Mr. Nelson
contends the Taser was deployed on him for no reason and he was assaulted by

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the Officers. [Dkt. #160, Ex. 16, Affidavit of Edward Nelson, ¶16]. Mr. Nelson
admits that he was found guilty of Interfering with an Officer and Breach of Peace
on June 3, 2011. [Dkt. # 159, Ex. 1, Pl. Edward Nelson’s Rule 56(a)(2) Stmt., ¶20].
Mrs. Nelson also disputes the Defendants version of the facts, arguing that
“if the alleged assault was supposed to transpire with me, and then they made up
all these other stories after that, I wasn’t even anywhere near the scene.” [Dkt.
#160, Ex. 31, Deposition of Patricia Nelson, 13:23-14:1]. Rather, Mrs. Nelson
asserts that she was “way down the street. I had no knowledge of what was going
on with my husband up the street.” [Id. at 14:2-4]. Mrs. Nelson denies
approaching the area where Defendant Dogali was arresting her husband and
claims that she “never left my vehicle.” [Id. at 33:9-11]. Mrs. Nelson claims that
she did not see the Officers struggling with Mr. Nelson or Taser Mr. Nelson. [Id. at
33:12-17].
Mrs. Nelson asserts that she was assaulted by Defendant Connelly, her
arresting officer. [Dkt. #160, Ex. 31, Deposition of Patricia Nelson, 14:9-10].
Specifically, Mrs. Nelson asserts that Defendant Connelly kneed her in the back
of her left leg, grabbed her by her hair and pushed her head down with such force
that her wig came off and she felt her head bleeding. [Id. at 18:6-7, 18:18-22, 60:414].
Although Defendant Sergeant Connelly admits pushing Mrs. Nelson
against a parked vehicle in order to place her in handcuffs, he denies pushing her
head into the vehicle and causing a laceration to her face. [Dkt. #160, Ex. 27,
Defendant Connelly Stamford Police Incident Report]; [Dkt. #160, Ex. 24, 19:10-

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15]. Defendant Sergeant Connelly’s Incident Report following Mrs. Nelson’s
arrest indicates that she had “No Apparent Physical Injury” at the time of her
arrest. [Dkt. #160, Ex. 27].
Instead, the Defendants assert that Mrs. Nelson hit her head on the bed in
the Stamford Police Department in female cell #2 where she was placed after her
arrested and searched while in police custody. [Dkt. # 159, Ex. 60, Defendant
Fitzgibbons Stamford Police Incident Report]. A video exhibit submitted by both
the Plaintiffs and the Defendants shows Mrs. Nelson in a cell with three officers
during a search of her clothing. [Dkt. #159, Ex. KKK]; [Dkt.#145, Ex.11]. The video
shows Mrs. Nelson’s hostile and intoxicated demeanor. She is seen screaming
loudly at the officers and moving her body erratically. As the two male officers
hold Mrs. Nelson’s arms and place her in a seated position on the metal bed in
the cell, Mrs. Nelson appears to lean to her right, banging her head against the
cell bars and then on the metal bed. [Id.]. Mrs. Nelson admits that the bed in the
jail cell is made of hard metal. [Dkt. #160, Ex. 1, Pl. Patricia Nelson’s Rule 56(a)(2)
Stmt., ¶20]. A few moments later, the video shows Mrs. Nelson touching her head
with her hand and Mrs. Nelson cries out that she is bleeding. Mrs. Nelson then
questions why she is bleeding. [Id.].
Mrs. Nelson asserts that while in the cell, she was subjected to an illegal
strip search directed by Defendant Sergeant Fitzgibbons with the assistance of
Officer Sandra Connetta and Officer James Herbert during which her clothing was
removed and her breasts were exposed to view. [Dkt. #160, Ex. 56, Affidavit of
Patricia Nelson, ¶9]. Mrs. Nelson alleges that Defendant Sergeant Fitzgibbons

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“had his hands inside the side of my pants touching my buttocks for no other
reason than to humiliate me.” [Id. at ¶10].
After Mrs. Nelson received the laceration to her head, the Defendants
contacted EMS to have Mrs. Nelson taken to the hospital for treatment. Mrs.
Nelson received treatment for a “0.5cm [0.19in] laceration just to the lateral
aspect of her right eye” and was discharged. [Dkt. #159, Ex. 60, Defendant
Sergeant Fitzgibbons Stamford Police Incident Report]; [Dkt. #160, Ex. 44,
Stamford EMS Report]; [Dkt. #160, Ex. 46, Stamford Hospital Medical Record for
Patricia Nelson].
Mr. Nelson also alleges that he was subjected to an illegal strip search and
a second incident of excessive force during the booking process. Mr. Nelson
asserts that while in the booking area, he was approached from behind by
Defendant Sergeant Fitzgibbbons, who slammed Mr. Nelson to the floor for no
reason. [Dkt. #160, Ex. 16, Affidavit of Edward Nelson, ¶6]. Mr. Nelson then
asserts that Defendant Sergeant Fitzgibbons lifted him to his feet with leg irons
on his feet and handcuffs on his wrists, and then “sadistically raised [his] arms
behind [his] back to inflict pain.” [Id. at ¶7]. Mr. Nelson further alleges that as his
back was bent downward as a response to his arms being raised behind his back,
his penis was exposed to the officers in the booking area, causing a humiliating
experience. [Id., at ¶9].
The Defendants contend that the searches of both Mr. and Mrs. Nelson
were conducted, consistent with Stamford Police Department Policy, to search
for any item that could be used as a weapon or anything that Mr. and Mrs. Nelson

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could have used to injure themselves while in custody, including shoelaces,
belts, extra clothing, brassieres, and sharp jewelry. [Dkt. #160, Ex. 28, Deposition
of Sergeant Fitzgibbons, 37:14-20].
Twenty days later, on November 12, 2006, Mr. and Mrs. Nelson submitted
written complaints to the Internal Affairs Department of the Stamford Police
Department. [Dkt. #159, Ex.1, Pl. Edward Nelson’s Rule 56(a)(2) Stmt., ¶38]; [Dkt.
#160, Ex. 1, Pl. Patricia Nelson’s Rule 56(a)(2) Stmt, ¶34].

II.

Standard of Review

“The standards governing summary judgment are well settled.” Ford v.
Reynolds, 316 F.3d 351, 354, 379 (2d Cir. 2002). Summary judgment “should be
rendered if the pleadings, the discovery and disclosure material on file, and any
affidavits show that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Summary
judgment is appropriate if, after discovery, the nonmoving party “has failed to
make a sufficient showing on an essential element of [its] case with respect to
which [it] has the burden of proof.” Celotex v. Catrett, 477 U.S. 317, 323 (1986).
“The party seeking summary judgment has the burden to demonstrate that
no genuine issue of material fact exists.” Ford, 316 F.3d at 354. “[T]he burden on
the moving party may be discharged by ‘showing’ - that is point out to the district
court - that there is an absence of evidence to support the nonmoving party’s
case.” PepsiCo. Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (internal
citations omitted). “If the party moving for summary judgment demonstrates the
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absence of any genuine issue as to all material facts, the nonmoving party must,
to defeat summary judgment, come forward with evidence that would be
sufficient to support a jury verdict in its favor.” Burt Rigid Box, Inc. v. Travelers
Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
The Court must “construe the evidence in the light most favorable to the
nonmoving party and . . . draw all reasonable inferences in its favor.” Huminski v.
Corsones, 396 F.3d 53, 69-70 (2d Cir. 2004) (internal citations omitted). “[I]f there
is any evidence in the record that could reasonably support a jury’s verdict for
the non-moving party, summary judgment must be denied.” Am. Home
Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir.
2006) (internal citations omitted).

III.

Discussion
A. Excessive Force
Both Plaintiffs assert in their complaint that the arresting officers used

excessive force to affect their arrest, and Mr. Nelson asserts a second claim of
excessive force used during the booking process.
Claims arising from the use of force during an arrest are analyzed under
the “objective reasonableness” standard of the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 397 (1989). Applying this standard, a court must
balance “the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental interests at stake.”

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Id. at 396 (citation and internal quotation marks omitted). Such analysis requires
the court to examine “the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. (citation omitted).
Further, reasonableness must be judged objectively under the circumstances,
“from the perspective of a reasonable officer on the scene,” and allow for the fact
“that police officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving-about the amount
of force that is necessary in a particular situation.” Id. at 396-97.
1. Mr. Nelson’s Claims of Excessive Force
Mr. Nelson admits that he passively resisted Defendant Dogali’s attempts
to place him in handcuffs, but alleges that he was subjected to excessive force at
the time of his arrest when Defendant Sergeant Scanlon applied a Taser to him.
[Dkt. #159, Ex. 22, Deposition of Edward Nelson, 20:4-8]. Mr. Nelson asserts that
when one Taser prong hit his finger and the other prong did not connect,
consistent with Mr. Nelson’s admission that he passively resisted arrest,
Defendant Sergeant Scanlon had to press it against his leg. [Dkt. #160, Ex. 33,
Deposition of Edward Nelson, 11:1-6].
Consistent with Mr. Nelson’s admission that he passively resisted arrest,
Defendant Dogali reports that Mr. Nelson refused to place his hands behind his
back despite several instructions to do so. [Dkt. #160, Ex.29, Def. Dogali Stamford
Police Dept. Incident Report]. Defendant Dogali further reports that Mr. Nelson

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was heavier and more powerful and that with only one of Mr. Nelson’s hands
placed in handcuffs, he felt that Mr. Nelson presented a dangerous situation. [Dkt.
#144, Ex. 5, Affidavit of Defendant Dogali, ¶¶5, 9]. Defendant Sergeant Scanlon
reports that when he arrived on the scene he observed Mr. Nelson screaming and
struggling with Defendant Dogali. [Dkt. #159, Ex. 34, Def. Scanlon Stamford Police
Dept. Incident Report]. Defendant Scanlon stated in his Incident Report that he
advised Mr. Nelson that if he did not comply with the Officers’ instructions a
Taser would be used. [Id.]. Defendant Scanlon further reports that he repeated
the warning a second time and after Mr. Nelson again refused to comply,
Defendant Scanlon applied the Taser to Mr. Nelson’s left leg, enabling Defendants
Dogali and Scanlon to handcuff Mr. Nelson. [Id.]. Mr. Nelson claims that he was
not warned before the Taser was used. [Dkt. #159, Ex.22, Deposition of Edward
Nelson, 20:4-8]; [Dkt. #160, Ex. 33, Deposition of Edward Nelson, 11:1-6].
Viewing the facts in the light most favorable to the Plaintiffs, the nonmoving party, as the Court is required to do in evaluating a motion for summary
judgment, the Court finds that there are genuine issues of material fact in dispute
regarding the force applied to Mr. Nelson at the time of his arrest. Whereas Mr.
Nelson alleges that he was merely passively resisting arrest when a Taser was
applied to his body, the Defendants report that Mr. Nelson was actively struggling
to avoid being placed in handcuffs and ignored repeated instructions to place his
arms behind his back in order to avoid being subjected to a Taser. Therefore, an
obvious material factual dispute exists as to whether Defendants Dogali and
Scanlon applied force in excess of an amount that was objectively reasonable in

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effectuating Mr. Nelson’s arrest. Applying the “objectively reasonable” standard
as articulated in Graham and viewing the facts in the light most favorable to the
Plaintiff, the non-moving party, a reasonable juror could find that the Defendants’
conduct constituted excessive force in violation of the Fourth Amendment and
therefore Defendants’ motion for summary judgment with respect to Plaintiff
Edward Nelson’s claim of excessive force during his arrest is denied as to
Defendants Dogali and Scanlon.
Defendants’ motion for summary judgment as to Plaintiff’s claim of
excessive force during his arrest as to the other named Defendants is granted
due to the Plaintiff’s failure to establish that any of the other named Defendants
used force to arrest him. See Dunn v. Carrier, 137 Fed. Appx.387 (2d Cir. 2005)
(holding that investigators were not liable for excessive force absent a showing
of personal involvement in the alleged assault); see also Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006) (“‘It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a prerequisite to an award
of damages under §1983’”) (citation omitted).
Construing the oblique pro se complaint liberally, Mr. Nelson appears to
raise a second claim of excessive force related to the booking process at the
Stamford Police Department. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994) (holding that District Courts must liberally construe complaints filed by pro
se plaintiffs and interpret them “to raise the strongest arguments that they
suggest”). Mr. Nelson alleges that while in the booking area, he was approached
from behind by Defendant Sergeant Fitzgibbons, who slammed him to the floor

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for no reason. [Dkt. #160, Ex. 16, Affidavit of Edward Nelson, ¶6]. Mr. Nelson then
claims that Defendant Sergeant Fitzgibbons lifted him to his feet with leg irons on
his feet and handcuffs on his wrists and “sadistically raised [his] arms behind
[his] back to inflict pain.” [Id. at ¶7].
The Defendants submitted a video of the booking room during Mr. Nelson’s
booking process. [Dkt. #144, Ex. 12]. The video shows Edward Nelson being
questioned, and removing his shoes, belt, and shirt. [Id.]. The video then shows
an Officer taking hold of Mr. Nelson’s arm and being placed face down onto the
floor. It is unclear from the poor quality of the video how much force was applied
to Mr. Nelson in order to guide him to the floor. Therefore, a material factual
dispute exists regarding the amount and reasonability of the force applied to Mr.
Nelson to guide him to the floor during a search of his clothes in the booking
room. As a reasonable juror could conceivably find that excessive force was
applied to Mr. Nelson to bring him to the floor, the Defendants’ motion for
summary judgment as to Mr. Nelson’s claim of excessive force against Defendant
Sergeant Fitzgibbons is denied. Defendants’ motion for summary judgment as to
the other named Defendants is granted due to the Plaintiff’s failure to establish
any personal involvement of any other named Defendant in the acts which form
the basis of this claim of excessive force. See Dunn, 137 Fed. Appx.387.
2. Mrs. Nelson’s Claim of Excessive Force
Mrs. Nelson alleges a single claim of excessive force in the operative
complaint [Dkt. #116, Third Amended Complaint]. Specifically, Mrs. Nelson
asserts that, Defendant Sergeant Connelly, in attempting to affect her arrest,

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kneed her in the back of her left leg, grabbed her by her hair and pushed her head
down with such force that her wig came off and she felt her head bleeding. [Dkt.
#159, Ex. 9, Deposition of Patricia Nelson, 18:6-22, 60:4-14]. Defendant Sergeant
Connelly admits that he pushed her into a vehicle, but denies shoving her head
into a car and causing her head to bleed. [Dkt. #160, Ex. 27, Defendant Sergeant
Connelly Stamford Police Incident Report]; [Dkt. #160, Ex. 24, Deposition of
Sergeant Michael Connelly, 19:10-15].
The Defendants assert that Mrs. Nelson received a cut over her right eye
after she hit her head on the bed in a cell at the Stamford Police Department while
she was combative and intoxicated. [Dkt. #159, Ex. 60, Defendant Sergeant
Fitzgibbon’s Stamford Police Department Incident Report]. Defendant Sergeant
Connelly’s Incident Report following Mrs. Nelson’s arrest indicates that Mrs.
Nelson had “No Apparent Physical Injury.” [Dkt. #160, Ex. 27, Defendant Sergeant
Connelly Stamford Police Incident Report].
A video surveillance camera recorded Mrs. Nelson in a single female cell at
the Stamford Police Department. The video, submitted as an exhibit by both
Plaintiffs and Defendants, shows Mrs. Nelson in a cell with three officers during a
search of her clothing. [Dkt. #145, Ex. 11]. The video shows two male officers hold
Mrs. Nelson’s arms and place her in a seated position on the metal bell in the cell.
[Id.]. Mrs. Nelson then leans to the right and falls, causing an impact to her head
against the cell bars to her right, and then the metal bed. [Id.]. Mrs. Nelson then
cries out, “I’m bleeding, I’m bleeding, why the fuck am I bleeding?” However, Mrs.
Nelson contends that the injury to her head was inflicted earlier, when Defendant

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Connelly pushed her face into a vehicle during her arrest, prior to her arrival at
the Stamford Police Department. [Dkt. #159, Ex.9, Deposition of Patricia Nelson,
18:11-22].
Viewing the facts in the light most favorable to Plaintiffs, the non-moving
party, the Court finds that there are genuine issues of material fact in dispute
regarding Mrs. Nelson’s claim of excessive force. Mrs. Nelson alleges that she
sustained an injury to her head when it was thrust onto a vehicle during her
arrest. Defendant Sergeant Connelly admits that he pushed her into a vehicle,
but denies shoving her head into a car and causing her head to bleed. [Dkt. #160,
Ex. 27, Defendant Sergeant Connelly Stamford Police Incident Report]; [Dkt. #160,
Ex. 24, Deposition of Sergeant Michael Connelly, 19:10-15]. Rather, the
Defendants contend that Mrs. Nelson sustained the injury to her head when she
hit her head on the bed in female #2 as a result of her combative and intoxicated
behavior. [Dkt. #159, Ex. 60, Sergeant Fitzgibbons Stamford Police Department
Incident Report]. The Defendant’s claim is consistent with a videotape of Mrs.
Nelson’s cell at the Stamford Police Department, submitted as evidence by both
parties, which shows Mrs. Nelson’s body falling down and striking the cell bars
and then the cell bed, after which she screams that she is bleeding. [Dkt. #145,
Ex. 11]; [Dkt. #160, Ex. KKK].
There is a material factual dispute as to the amount of force applied to Mrs.
Nelson during the time of her arrest and whether that force caused Mrs. Nelson to
sustain a laceration to her head, such that a reasonable juror could find that
Defendant Sergeant Connelly applied excessive force to Mrs. Nelson in violation

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of the Fourth Amendment. This disputed issue exists despite the video
impeachment of Mrs. Nelson’s credibility and medical records evincing her
extreme intoxication. Accordingly, Defendants motion for summary judgment as
to Plaintiff Patricia Nelson’s claim of excessive force is denied. Once again,
Defendants’ motion for summary judgment as to the other named Defendants is
granted due to Plaintiff’s failure to establish that any of the other named
Defendants were personally involved in the conduct which formed the basis of
Mrs. Nelson’s claim of excessive force. See Dunn, 137 Fed. Appx.387.

3. Qualified Immunity
Defendants argue that Defendants Scanlon and Connelly are entitled to
qualified immunity for their applications of force to Mr. and Mrs. Nelson pursuant
to their arrests. Although the Defendants did not discuss the issue of qualified
immunity regarding Defendant Sergeant Fitzgibbons, the Court assumes that the
Defendants’ would have argued in favor of the application of qualified immunity
towards Defendant Sergeant Fitzgibbons as well.
Qualified immunity protects a “government official acting in an official
capacity from suit for damages under § 1983 unless the official violated clearly
established rights of which an objectively reasonable official would have known.”
Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 358 (2d Cir. 2004); see
also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194
(2001), the Supreme Court mandated that first, a court must decide whether the
facts that a plaintiff has shown make out a violation of a constitutional right, and
then second, the court must decide whether the right at issue was “clearly
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established” at the time of the defendant’s alleged misconduct. Id. at 201.
Subsequently, in Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court
ruled that courts are permitted to exercise their discretion in determining which
of the two prongs should be addressed first.
Here, the right to be free from the use of excessive force under the Fourth
Amendment has long been clearly established. Green v. Montgomery, 219 F.3d
52, 59 (2d Cir. 2000); Carey v. Maloney, 480 F. Supp. 2d 548, 556 (D.Conn. 2007).
However, Defendants Connelly, Sergeant Scanlon and Sergeant Fitzgibbons
would be entitled to qualified immunity if they made a reasonable mistake about
the amount of force required. As noted above, there are genuine issues of
material fact in dispute in all three alleged instances of excessive force that
directly bear on the Court’s analysis regarding the reasonableness of the
Defendants use of force. Where, as here, facts material to the qualified immunity
analysis are in dispute, summary judgment is not appropriate. Warren v. Williams,
No. Civ.A. 304CV537 (JCH), 2006 WL 860998, at *33 (D.Conn. March 31, 2006)
(finding that “[w]hile the defendants are entitled to qualified immunity if they
made a reasonable mistake about the amount of force required by the situation,
given the degree to which factual disputes exist regarding the type and amount of
force used, as well as the circumstances surrounding the use of force, the court
cannot conclude, on summary judgment, that the defendants are entitled to
qualified immunity.”); see also Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998)
(“summary judgment based either on the merits or on qualified immunity requires
that no dispute about material factual issues remain”); Thomas v. Roach, 165

18

F.3d 137, 143 (2d Cir. 1999) (“Summary judgment on qualified immunity is not
appropriate when there are facts in dispute that are material to a determination of
reasonableness.”). The Court is therefore unable to conclude on summary
judgment that Defendants Connelly, Sergeant Scanlon and Sergeant Fitzgibbons
are entitled to qualified immunity.

B. Connecticut Common Law Assault & Battery
Along with their claims of excessive force, Plaintiffs have raised claims of
assault and battery under Connecticut common law. The Defendants argue that in
order to prevail on their claims of assault and battery, Plaintiffs must show that
the Defendant Officers applied force, the application of which was unlawful. The
Defendants further argue that a claim of excessive force is “tightly interwoven”
with a state claim for assault and battery, and therefore, where the Court finds
that the excessive force claim should fail, the assault claim should also fail.
Given the Court’s aforementioned conclusion that genuine and material
factual disputes remain regarding the amount and reasonability of force applied
to Mrs. Nelson during her arrest, to Mr. Nelson during his arrest, and to Mr.
Nelson during the booking process, the Defendants’ motion for summary
judgment is denied as to the claims of assault and battery. See Ochoa v. City of
West Haven, No. 3:08cv00024 (DJS), 2011 WL 3267705 (D.Conn. July 29,
2011)(declining to grant summary judgment on plaintiff’s assault and battery
claims on the basis of unresolved issues of fact on plaintiff’s excessive force
claim); see also Owens v. Hussey, No. 3:09cv1768 (WWE), 2011 WL 2173709
(D.Conn. June 2, 2011) (denying summary judgment on plaintiff’s assault and
19

battery claim where disputed issues of fact remained such that the Court could
not determine whether the use of force was justified).
C. False Arrest, False Imprisonment, and Malicious Prosecution
Plaintiffs raise claims of false arrest pursuant to 42 U.S.C. §1983, false
imprisonment under Connecticut law, and malicious prosecution. Given that each
Plaintiff was charged with criminal offenses incident to their arrest, the Court will
analyze these claims as to each Plaintiff separately.
i. Mr. Nelson
In the Second Circuit, courts analyzing claims of false arrest “have
generally looked to the law of the state in which the arrest occurred.” Davis v.
Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004). This approach is consistent with the
standard practice of looking to state and common law principles to determine the
law applicable to §1983 claims. See id. at 434, n. 7. Under Connecticut law, a
plaintiff bringing a claim of false arrest bears the burden of proving an unlawful
arrest. Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). A claim for
false arrest “cannot lie when the challenged arrest was supported by probable
cause.” See id. (citing Beinhorn v. Saraceno, 23 Conn.App. 487, 491, 582 A.2d
208, 210 (1990). A showing of probable cause for an arrest is also a complete
defense to claims of false imprisonment. See Smith v. Lanati, 271 Fed, Appx.
65,66 (2d Cir. 2008). A conviction, “unless it has been reversed- is ‘conclusive
evidence’ that there existed probable cause for the defendant’s arrest, Lewis v.
Bornstein, No. 3:09cv666 (MRK), 2011 WL 336852, at *3 (D.Conn. Jan. 28, 2011)
(citing Weyant v. Okst., 101 F.3d 845, 852 (2d Cir. 1996). Therefore, a conviction,

20

which provides “conclusive evidence” that probable cause existed, bars claims
of both false arrest and false imprisonment.
Further, under Connecticut law, a plaintiff seeking to establish a claim of
malicious prosecution must allege that the prosecution terminated in his or her
favor. See Kern v. Heimerdinger, No. 3:09cv1000(PCD), 2010 WL 5069883, at *2
(D.Conn. Dec. 6, 2010) (citing Roesch v. Otarola, 980 F.2d 850, 853 (2d Cir. 1992)).
A conviction, the opposite of a favorable termination, is a defense to a claim of
malicious prosecution. See Lagasse v. City of Waterbury, No. 3:09cv391 (VLB),
2011 WL 2709749, at *5 (D.Conn. July 12, 2011) (citing Roesch v. Otarola, 980 F.2d
850, 853 (2d Cir. 1992)
On June 3, 2011, Mr. Nelson was found guilty of interfering with an officer
and breach of peace. [Dkt. #141, Ex. 9, State of Connecticut v. Edward Nelson
Judgment]. Mr. Nelson alleges, however, that despite his conviction, he can
establish a claim of false arrest because the State of Connecticut did not pursue
the charge of Assault in the Third Degree on the basis of Mrs. Nelson’s
statements that she was not assaulted by Mr. Nelson. Mr. Nelson further alleges
that the Defendants lacked probable cause for his arrest. However, the
Defendants were not required to have probable cause for every charge for which
Mr. Nelson was arrested; probable cause for any crime is a defense to false
arrest. See Pacicca v. Stead, No. 10-1069, 2011 WL 5515954, at *1, n. 1 (2d Cir.
Nov. 14, 2011) (emphasis added) (citing Brown v. Kelly, 609 F.3d 467 (2d Cir.
2010). It is indisputable that probable cause existed for Mr. Nelson’s arrest, given
his conviction. See Lewis, 2011 WL 336852, at *3 (holding that a conviction,

21

“unless it has been reversed- is ‘conclusive evidence’ that there existed probable
cause for the defendant’s arrest”).
Mr. Nelson further argues that he can establish a claim of malicious
prosecution because the State of Connecticut elected not to pursue the charges
of Assault in the Third Degree and Breach of Peace in the Second Degree.
Despite his explicitly fallacious assertion to the contrary, Mr. Nelson was
convicted after trial of Breach of Peace in the Second Degree. [Dkt. #141, Ex. 9,
State of Connecticut v. Edward Nelson Judgment]. Therefore he cannot establish
a claim of malicious prosecution as to the charge of Breach of Peace in the
Second Degree, as he did not receive a favorable termination of the charge. See
Lagasse, 2011 WL 2709749 at *5. Furthermore, Mr. Nelson’s claim for malicious
prosecution as to the Assault charge must necessarily fail because probable
cause existed for Mr. Nelson’s arrest based on the aforementioned reasoning,
and “probable cause is fatal to claims of both false arrest and malicious
prosecution.” See Simonetti v. City of Bridgeport, No. 3:04cv1732, 2006 WL
3098764, at *4 (D. Conn. Oct. 31, 2006).
Accordingly, Mr. Nelson cannot sustain claims of false arrest, false
imprisonment, or malicious prosecution against the Defendants. Defendants’
motion for summary judgment is granted as to these claims.
ii. Mrs. Nelson
Mrs. Nelson alleges that she was subject to both false arrest and malicious
prosecution. [Dkt. #116, Amended Compl., ¶173]. As noted above, favorable
termination is a necessary element of both false arrest and malicious

22

prosecution. See Miles v. City of Hartford, No. 10-3375-cv, 2011 WL 5041695, at *23 (2d Cir. Oct. 25, 2011).
Mrs. Nelson cannot establish a favorable termination because her criminal
case is still pending more than five years after her arrest. [Dkt. #144, Ex. 10,
Pending Case Detail, Docket No. S01S-CR06-0157427-S]. As of January 6, 2012,
Mrs. Nelson’s next court date is scheduled for 11/11/2019 at 10:00AM. See State
of Connecticut Judicial Branch, Pending Case Detail, Docket No. S01S-CR060157427-S, available at
http://www.jud2.ct.gov/crdockets/CaseDetail.aspx?source=Pending&Key=a577da
ba-8ed7-4732-9d73-a524260cd1e5.
Mrs. Nelson argues that the State of Connecticut has failed to prosecute
her within the statute of limitations applicable to her misdemeanor charges. The
Court finds this argument wholly unpersuasive. Although Mrs. Nelson’s case has
been pending for several years, the statute of limitations merely requires the
filing of a claim within the applicable time period, not the disposition of the case
within the applicable time period. Moreover, she has not asserted that she
sought dismissal of the charges for failure to prosecute.
Accordingly, the Court finds that Mrs. Nelson cannot establish that her
criminal case has reached a favorable termination and therefore she cannot
establish a claim of either malicious prosecution or false arrest. The Court grants
Defendants motion for summary judgment as to Mrs. Nelson’s claims of
malicious prosecution and false arrest.
D. Connecticut Constitutional Claims

23

Without pointing to any specific factual allegations, in Counts Five and Six
of their Third Amended Complaint, Plaintiffs assert that the Defendants have
violated their rights under Article I, Sections 7 and 9 of the Connecticut
Constitution. [Dkt. #116, Third Amended Complaint, ¶¶182-185].
Defendants argue that courts have been reluctant to create private causes
of action for money damages under the Connecticut Constitution, and rely on
Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 S.2d 909 (1993)
for the proposition that as the Plaintiffs have adequate alternative remedies
through 42 U.S.C. §1983, the Plaintiffs claims under Article I, Sections 7 and 9
should be dismissed.
The Court is unpersuaded by this argument. In Binette v. Sabo, 244 Conn.
23, 710 A.2d 688 (1998) the Connecticut Supreme Court distinguished its prior
decision in Kelley Property Development, and, analogizing to the United States
Supreme Court’s analysis in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403, U.S. 388 (1971), explicitly recognized a private cause of
action for damages under Article I, §§7 and 9 of the Connecticut Constitution.
Binette, 244 Conn. 23; see also Yorzinski v. Alves, 477 F.Supp.2d 461 (D.Conn.
2007) (denying summary judgment as to plaintiff’s claim for a violation of
Connecticut Constitution Art.I §7 in reliance on the Connecticut Supreme Court’s
decision in Binette); see also Gillespie v. Ancona, 1999 WL 66538, at *3 (D.Conn.
Feb. 4, 1999) (recognizing the Connecticut Supreme Court’s recent creation in
Binette of a common law right of action for damages in cases involving unlawful
arrests, and unreasonable searches and seizures by government officials).

24

In Binette, the plaintifs, Joseph and Janet Binette, brought suit against a
police chief and police officer, alleging that the police chief threatened Mrs.
Binette with arrest and pushed her, causing her to fall over a table and against a
wall. The plaintiffs further alleged that the police officer repeatedly slammed Mr.
Binette’s head against a car, and then struck Mr. Binette in the head and kicked
him while he was lying on the ground experiencing an epileptic seizure. See
Binette, 244 Conn. at 26, 710 A.2d 688. The Connecticut Supreme Court ultimately
allowed a claim for violations of Article I, §§7 and 9 of the Connecticut
Constitution in light of the egregious circumstances of the case, but emphasized
that such a remedy is not available in all cases alleging violations of the state
constitution. Id. at 47-50, 710 A.2d 688.
Following Binette, Connecticut courts have significantly curtailed private
rights of action under Article I, §§7 and 9, limiting the availability of a private
cause of action to circumstances involving egregious violations. See Bauer v.
City of Hartford, No. 3:07-cv-1375 (PCD), 2010 WL 4429697 (D.Conn. Oct. 29,
2010). For example, in Martin v. Brady, 64 Conn. App. 433, 780 A.2d 961 (Conn.
App. 2001), the court found that the plaintiff’s allegations of state officers
entering his home without a valid search warrant, pushing him to the ground, and
smashing the windows and doors of his house, did not rise to the level of
egregious conduct necessary to maintain an action under Binette. Similarly,
another court in this District declined to recognize a private cause under Art. I, §9
on the grounds that the circumstances did not rise to the level of egregious,
where the plaintiff was struck with a baton until he fell to the ground and could be

25

handcuffed. Faulks v. City of Hartford, No. 08-cv-270(VLB), 2010 WL 259076, at *910 (D.Conn. Jan. 19, 2010).
Here, the Court finds that the Plaintiffs’ factual allegations do not constitute
egregious conduct recognized in Binette as warranting a private right of action
under the Connecticut Constitution. Much like the plaintiff in Faulks, Mr. Nelson
admits that he was passively resisting being placed in handcuffs and was
subjected to a Taser in order to permit his proper restraint. Further, Mrs. Nelson,
who alleges that Defendant Connelly kneed her in the back of the leg and pushed
her head onto the hood of a vehicle, resulting at worse in a laceration less than
two tenths of an inch long not so much as requiring a single stitch, was not
subjected to the type of unnecessary violence experienced by Mr. Binette, who
was repeatedly slammed into a car and struck in the head while experiencing an
epileptic seizure.
Accordingly, summary judgment is granted in favor of the Defendants on
Plaintiffs’ claims under Article I, §§7 and 9 of the Connecticut Constitution.

E. Claims Raised under the Fifth and Fourteenth Amendments
Plaintiffs’ Second, Eighteenth and Twenty-First causes of action all allege
claims under the Fourteenth Amendment. Plaintiffs’ Fourth cause of action
alleges a violation of the Fifth Amendment. The Defendants assert that the
Plaintiffs cannot maintain these claims as the Fourth Amendment provides an
explicit source of constitutional protection for the type of conduct at issue,
thereby preventing the Plaintiffs from relying on general due process protection.

26

The Court notes at the outset that the Plaintiffs appear to have abandoned
these claims by entirely failing to defend them. Mrs. Nelson’s memorandum in
opposition to summary judgment references the Fourteenth Amendment claims
in only one instance, in a sub-heading that seemingly abandons the claims by
stating that “the Second, Eighteenth, and Twenty-First Causes of Action Should
be Dismissed For Failure to State a Claim.” [Dkt. #160, Patricia Nelson’s Mem. in
Opp. to Summary Judgment, p. 33]. Mrs. Nelson’s memorandum addresses the
Fifth Amendment claim in a single sub-heading stating that “The Fourth Cause of
Action Should Not Be Dismissed For Failure to State A Claim.” [Id.]. Similarly, Mr.
Nelson’s Memorandum in Opposition to Summary Judgment references the
claims in two sub-headings, followed by absolutely no legal argument
whatsoever. [Dkt. #159, Edward Nelon’s Mem. in Opp. to Summary Judgment, p.
36]. Accordingly, the Court finds that the Plaintiffs have abandoned the Second,
Fourth, Eighteenth and Twenty-First causes of action. See Taylor v. City of New
York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (“Federal courts may deem a claim
abandoned when a party moves for summary judgment on one ground and the
party opposing summary judgment fails to address the argument in any way.”)
(citing Douglas v. Victor Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998)
(collecting cases)); see also, Spencer v. Ellsworth, No. 09civ.3773, 2011 WL
1775963, at *7 (S.D.N.Y. May 10,2011) (finding that Plaintiff had abandoned certain
claims as he “has not substantiated any of these claims and did not attempt to
substantiate them in response to the motion for summary judgment.”); Schlenger
v. Fidelity Employer Servs. Co., LLC, Np.09-cv-3986, 2011 WL 1236156, at *23

27

(S.D.N.Y. March 31, 2011) (“Plaintiff did not address Count Four in her Opposition
to MetLife's Motion for Summary Judgment, and on this basis alone, those claims
are deemed abandoned and summary judgment could be granted in MetLife's
favor”). The Court’s conclusion is buttressed by the fact that these claims lack
merit.
Assuming, arguendo, that Plaintiffs had not abandoned these claims, the
claims would necessarily fail. As the Defendants correctly noted, the Plaintiffs
claims of “excessive force pursuant to the Fourth Amendment [. . .] preclude a
claim for a violation of substantive due process under the Fourteenth
Amendment.” See Clark v. Dowty, No. 3:05-cv-1345 (WWE), 2007 WL 2022045, at
*7(D.Conn. July 9, 2007)(citing Albright v. Oliver, 510. U.S. 266, 273-74 (1994)); see
also Woodmansee v. Mickens, No. 04-cv-1896 (WWE), 2006 WL 752893, at *4
(D.Conn. March 22, 2006) (granting summary judgment to plaintiff’s due process
claims under the Fifth and Fourteenth Amendments on the basis of plaintiff’s
claims under the First and Fourth Amendments).
Accordingly, the Court grants summary judgment as to the Plaintiffs’
Second, Fourth, Eighteenth, and Twenty-First causes of action.

F. Monell Claims
Plaintiffs Mr. and Mrs. Nelson have each raised claims against the City of
Stamford alleging that a policy, practice or custom existed to make it difficult for
citizens to file internal affairs complaints with the Stamford Police Department on
the basis of excessive force. As a result of this policy, practice or custom,
Plaintiffs further contend that the Stamford Police Department officers “became
28

more brazen in utilizing excessive force against citizens, knowing that the
Stamford Police Department would protect wayward officers by discouraging
citizens from filing Internal Affairs Complaints against them.” [Dkt. #159, Pl.
Edward Nelson Mem. in Opposition to SJ, p.35]. In support of this claim of
municipal liability, the Plaintiffs offer several news articles referencing concerns
regarding the complaints process of the Stamford Police Department. Plaintiffs
also allege a theory of municipal liability on the basis of a failure to train, alleging
that Defendant Chief Brent Larrabee and Defendant Lieutenant Thomas Cronin
failed to properly supervise and train his subordinates regarding internal
investigations.
The Defendants challenge the Plaintiffs claims against the City of Stamford,
arguing that the Plaintiffs have failed to assert facts to substantiate the existence
of a custom, and that even if facts demonstrating a custom had been presented,
the Plaintiffs cannot show that such a custom caused the deprivation of their
constitutional rights. Specifically, the Defendants argue that Plaintiffs have not
presented evidence to show that a custom of discouraging internal affairs
complaints caused the individual defendants in this lawsuit to use excessive
force, make a false arrest, engage in a conspiracy, or commit any of the other
violations alleged in the complaint. Further, Defendants argue that Plaintiffs have
not presented facts sufficient to support a “failure to train” theory of liability
because they have not presented facts to demonstrate that either Defendant Chief
Larrabee or Defendant Lieutenant Cronin were informed of unconstitutional
conduct by officers and acted with deliberate indifference, nor have the Plaintiffs

29

presented evidence of any training program related to internal investigations or
any deficiency therein.
“In order to prevail on a claim against a municipality under section 1983
based on acts of a public official, a plaintiff is required to prove: (1) actions taken
under color of law; (2) deprivation of a constitutional or statutory right; (3)
causation; (4) damages; and (5) that an official policy of the municipality caused
the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A municipality
may be “held liable if a plaintiff proves the municipality violated a federally
protected right through (1) municipal policy, (2) municipal custom or practice, or
(3) the decision of a municipal policymaker with final policymaking authority.”
Zherka v. DiFiore, 412 Fed.Appx. 345, 348 (2d Cir. 2011) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658. 695 (1978)).
A plaintiff may “establish municipal liability by showing that a municipal
policy or custom existed as a result of the municipality's deliberate indifference
to the violation of constitutional rights, either by inadequate training or
supervision.” Russo v. City of Hartford, 341 F. Supp. 2d 85, 107 (D. Conn. 2004).
“Where a § 1983 plaintiff can establish that the facts available to city
policymakers put them on actual or constructive notice that the particular
omission is substantially certain to result in the violation of the constitutional
rights of their citizens, the dictates of Monell are satisfied.” City of Canton v.
Harris, 489 U.S. 378, 396 (1989). “[W]here a policymaking official exhibits
deliberate indifference to constitutional deprivations caused by subordinates,

30

such that the official's inaction constitutes a deliberate choice, that acquiescence
may be properly thought of as a city policy or custom that is actionable under
§1983.” Amnesty Am. v. Town of W. Hartford, 361 F. 3d 113, 126 (2d Cir. 2004)
(internal quotation marks omitted).
A claim for failure to train “will trigger municipal liability only where the
failure to train amounts to the deliberate indifference to the rights of those with
whom the state officials will come into contact.” Young v. County of Fulton, 160
F.3d 899, 903 (2d Cir. 1998) (internal quotation marks and citation omitted). The
Second Circuit has outlined “three showings required to support a claim that a
municipality’s failure to train amounted to ‘deliberate indifference’ to the rights of
citizens.” Id. at 903-904. Therefore to establish a claim of inadequate training,
Plaintiffs mush show that (1) “a policymaker of the municipality knows to a moral
certainty that its employees will confront a given situation”; (2) that the “situation
either presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of employees
mishandling the situation”; and (3) that “the wrong choice by the employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Walker v.
City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (citations omitted).
Therefore a municipality “cannot be liable if the need for such training was
not obvious.” Russo v. City of Hartford, 341 F. Supp. 2d at 109 (citing Vann, 72
F.3d at 1049). In addition, “a pattern of misconduct, while perhaps suggestive of
inadequate training, is not enough to create a triable issue of fact on a failure-totrain theory. The plaintiff must offer evidence to support the conclusion that the

31

training program was inadequate, not [t]hat a particular officer may be
unsatisfactorily trained or that an otherwise sound program has occasionally
been negligently administered, and that a hypothetically well-trained officer
would have avoided the constitutional violation.” Okin v. Village of Cornwall-OnHudson Police Dept., 577 F.3d 415, 440-41 (2d Cir. 2009) (internal quotation marks
and citations omitted).
Plaintiffs’ only evidence presented in support of their Monell claims consist
of affidavits of individuals who had difficulty filing internal affairs complaints with
the Stamford Police Department and news articles referencing concerns with the
complaint process at the Stamford Police Department. The Court finds that this
evidence has wholly failed to demonstrate the existence of a policy, practice, or
custom that could have caused the Plaintiffs’ to suffer the deprivation of a
constitutional right, given that the affidavits and news articles all post-date the
Plaintiffs’ successful endeavor to file an internal affairs complaint.
For example, the Affidavit of Arlene Garcia describes her encounter with a
Stamford Police Officer in June of 2007 and her attempt to file a complaint
following that interaction. [Dkt. #160, Ex. 37, Affidavit of Arlene Garcia]. Similarly,
the Affidavit of Shanitha Simpson relates to her arrest on October 31, 2006 and
her attempt thereafter to file an internal affairs complaint. [Dkt. #160, Ex. 39,
Affidavit of Shanitha Simpson]. The news articles, dated September 1, 2009,
September 19, 2009, and January 22, 2010, are similarly incapable of
demonstrating a policy, custom or practice in existence prior to the Plaintiffs’
arrest and attempt to file an internal affairs complaint which could have caused

32

the Plaintiffs’ alleged incidents of excessive force. [Dkt. #160, Ex. 45, Westport
News Article dated 9/1/09]; [Dkt. #160, Ex. 147, MSNBC Article dated 2/19/09];
[Dkt. #160, Ex. 49, Connecticut Post Online Article dated 1/22/10]. See Roe, 542
F.3d at 36 (requiring proof that an official policy of the municipality caused the
constitutional injury in order to sustain a claim of municipal liability). Moroever,
such news articles are inadmissible in the context of Monell claims when offered
to prove the truth of the contents. See Delrosario v. City of New York, No. 07-cv2027(RJS), 2010 WL 882990, at *7 (S.D.N.Y. March 4. 2010) (noting that a New York
Times article submitted by the Plaintiff as evidence in opposition to summary
judgment in the context of a Monell claim was inadmissible when offered to prove
the truth of the matter asserted). Lastly, the Court notes that, contrary to the
Plaintiffs’ assertion that a policy, practice or custom existed to discourage the
filing of internal affairs complaints, the Plaintiffs successfully filed an internal
affairs complaint on November 19, 2006, just a few weeks after their arrest on
October 22, 2006. [Dkt. #160, Ex. 1, Pl. Patricia Nelson’s Rule 56(a)(2) Stmt. in
Opposition to Defs. Motion for Summary Judgment, ¶34]. Moreover, the Plaintiffs
allege that the Stamford Police Department impeded their efforts to file an internal
affairs complaint when in fact the record shows that they filed their complaint on
November 12, 2006, shortly after their arrest on October 22, 2006. [Dkt. #159, Ex.1,
Pl. Edward Nelson’s Rule 56(a)(2) Stmt., ¶38]; [Dkt. #160, Ex. 1, Pl. Patricia
Nelson’s Rule 56(a)(2)Stmt., ¶34].
The Plaintiffs’ evidence in support of their failure to train theory of liability
is even sparser. The sole evidence presented by the Plaintiffs’ relating to training

33

within the Stamford Police Department as to the internal affairs complaints
process consists of two entries within the Stamford Police Department Manual of
Procedure. One entry refers to the duty of officers during the “late tour” and the
“midnight tour” to serve as the primary complaints officer when not engaged in
other activity. [Dkt. #160, Ex. 58, Stamford Police Department Manual of
Procedure, Procedure No. 150, ¶17]. The Plaintiffs have also submitted Stamford
Police Department Manual of Procedure, Procedure No. 2012, the Complaint
Policy, recording the policy as follows: “Thorough investigation of all complaints,
together with fair and impartial evaluations of findings, serves to protect the
department and the public against acts of misconduct by police personnel and
affords protection of police personnel against invalid charges made by the
public.” [Dkt. #160, Ex. 12, Stamford Police Department Manual of Procedure,
Procedure No. 2012].
The Court finds that this evidence falls short of the standard for failure to
train municipal liability set forth by the Supreme Court in City of Canton, Ohio v.
Harris, 489 U.S. 378 (1989), requiring the identification of a specific deficiency in
the training program closely related to the ultimate injury which actually caused
the purported constitutional deprivation. City of Canton, 489 U.S. at 370. In City of
Canton, the Supreme Court emphasized the need for a plaintiff raising a claim of
failure to train municipal liability to establish that “the failure to provide proper
training may fairly be said to represent a policy for which the city is responsible,”
as distinguished from a situation where a particular officer was unsatisfactorily

34

trained in order to avoid imposing a kind of de facto respondeat superior liability
on the municipality. 438 U.S. at 390-392.
The Plaintiffs have failed to include any evidence regarding training at the
Stamford Police Department related to the submission of internal affairs
complaints other than several entries in the Stamford Manual of Procedure.
Absent any evidence whatsoever of the actual training process regarding the
submission of internal affairs complaints, the Court finds that the Plaintiffs
cannot sustain a claim of municipal liability on the basis of a failure to train.
Accordingly, the Court grants summary judgment for the Defendants as to Count
Plaintiffs’ claims against the City of Stamford.

G. Connecticut Common Law Recklessness and Negligence
In Count Seven, the Plaintiffs allege that the Defendants conduct violated
Connecticut State law by engaging in reckless and negligent conduct against
Plaintiffs. In Count Twelve, the Plaintiffs raise a redundant claim, asserting that
the Defendants violated Plaintiff’s state law right to be free from reckless and
negligent conduct. The Court will consider these claims together, and treat them
as a single cause of action.
i. Recklessness
Under Connecticut law, recklessness is defined as “a state of
consciousness with reference to the consequences of one’s acts . . . It is more
than negligence, more than gross negligence . . .[I]n order to infer it, there must
be something more than a failure to exercise a reasonable degree of
watchfulness to avoid dangers to other or to take reasonable precautions to
35

avoid injury to them . . . It is such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences of the actions.” Craig v.
Driscoll, 262 Conn. 312, 813 A.2d 1003, 1022 (Conn. 2003) (internal citations
omitted). Reckless conduct “tends to take on the aspect of highly unreasonable
conduct, involving an extreme departure from ordinary care, in a situation where
a high degree of danger is apparent.” Id.
Given the material factual dispute regarding the amount and reasonability
of force applied by the Defendants to Mr. and Mrs. Nelson, summary judgment is
denied as to the Plaintiff’s claim of common law recklessness against Defendants
Dogali, Scanlon, Connelly, and Fitzgibbon. Count Seven, alleging a claim of
common law recklessness, will proceed to trial.
ii. Negligence
Plaintiffs have raised claims of common law negligence, and negligent
infliction of emotional distress against the Defendants. As previously discussed,
the Plaintiffs raised parallel claims of common law negligence in Counts Seven
and Count Twelve, which the Court has consolidated into one claim. In Count
Ten, the Plaintiffs raise a claim of Negligent Infliction of Emotional Distress. The
Defendants argue that each of the acts complained of by the Plaintiffs involved
the exercise of discretion, and therefore the Defendants actions are protected by
the doctrine of governmental immunity.
As the District Court of Connecticut has recognized, “the common-law
doctrines ‘that determine the tort liability of municipal employees are well
established . . . Generally, a municipal employee is liable for the misperformance

36

of ministerial acts, but has a qualified immunity in the performance of
governmental acts . . .Governmental acts are performed wholly for the direct
benefit of the public and are supervisory or discretionary in nature. The hallmark
of a discretionary act is that it requires the exercise of judgment. In contrast,
[m]inisterial refers to a duty which is to be performed in a prescribed manner
without the exercise of judgment or discretion.’ ” Odom v. Matteo, 772 F.Supp.2d
377 (D.Conn. 2011) (citing Martel v. Metropolitan District Comm’n, 275 Conn. 38,
48-49, 881 A.2d 194 (2005).
However, this immunity is not without limitation. Connecticut recognizes
three exceptions to a municipal employee’s discretionary act immunity: “First,
liability may be imposed for a discretionary act when the alleged conduct
involves malice, wantonness, or intent to injure. Second, liability may be imposed
for a discretionary act when a statute provides for a cause of action against a
municipality or a municipal official for failure to enforce certain laws. Third,
liability may be imposed when circumstances make it apparent to the public
officer that his or her failure to act would be likely to subject an unidentifiable
person to an imminent harm . . .” Doe v. Petersen, 279 Conn. 607, 615-16, 903
A.2d 191 (2006).
“Connecticut courts have held that where, as here, an officer is alleged to
have used excessive force against a person, he may be found to have subjected
an identifiable person to imminent harm and therefore is not protected from suit
by the doctrine of governmental immunity.” Odom, 772 F.Supp. at 395. Given the
material factual dispute regarding the amount and reasonability of force applied

37

to the Plaintiffs, “a jury could find, based on its determination of whether [the
Defendants] used excessive force, that the circumstances made it apparent that
[the Defendants’] acts . . . would likely subject an identifiable person, namely [the
Plaintiffs], to imminent harm. Ochoa v. City of West Haven, No. 3:08-cv-00024
(DJS), 2011 WL 3267705, at *10 (D.Conn. July 29, 2011) (citing Gilliam v. Town of
Windsor Locks, No. 3:03-cv-1201 (AVC), 2006 WL 581208 (D.Conn. March 7, 2006).
Accordingly, summary judgment is denied as to the Plaintiffs’ negligence
claims against Defendants Dogali, Scanlon, Connelly and Fitzgibbons. Counts
Seven and Ten will proceed to trial.

H. Conn Gen. stat. §52-557n
In Count Thirteen, Plaintiffs raise a negligence claim against the City of
Stamford pursuant to Conn. Gen. Stat §52-557n. Conn. Gen. Stat. §52-557n(a)(1)
provides that “a political subdivision of the state shall be liable for damages to
person or property caused by . . . [t]he negligent acts or omissions of such
political subdivision or any employee, officer, or agent thereof acting within the
scope of his employment or official duties.” However, the Connecticut Supreme
Court, recognizing “the close relationship between §52-557n(a) and the commonlaw doctrines governing municipal employees’ immunity,” and seeking to create
“a harmonious body of law governing municipal liability,” has held that “the
identifiable person, imminent harm common-law exception to municipal
employees’ qualified immunity also applies in an action brought directly against
municipalities pursuant to §52-557m.” Grady v. Town of Somers, 294 Conn. 394,
984 A.2d 684 (2009).
38

Accordingly, because Plaintiffs’ negligence claims against the individual
officers will survive summary judgment on the basis of the material factual
dispute regarding the amount and reasonability of the force applied to the
Plaintiffs, Plaintiffs’ negligence claims against the City of Stamford will survive
summary judgment as well.
I. Intentional Infliction of Emotional Distress
In Count Nine, Plaintiffs raise a claim of intentional infliction of emotional
distress against the Defendants. The Defendants argue that Plaintiffs have failed
to present sufficient evidence to establish any conduct rising to the level of
extreme or outrageous to support such a claim. Further, the Defendants argue
that Plaintiffs have failed to present evidence demonstrating that they sustained
severe emotional distress as a result of any of the actions of the Defendants.
A plaintiff seeking to establish a claim of intentional infliction of emotional
distress must show: “(1) the actor intended to inflict emotional distress or that he
knew or should have known that emotional distress was the likely result of his
conduct; (2) that the conduct was extreme and outrageous; (3) that the
defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the
emotional distress sustained by the plaintiff was severe.” Appleton v. Board of
Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000)(internal quotation marks
omitted).
“Under Connecticut law, before a claim for intentional infliction of
emotional distress may be submitted to a jury, the court must first determine that
the conduct may be reasonably regarded as “extreme and outrageous so as to

39

permit recovery.” Birdsall v. City of Hartford, 249 F.Supp.2d 163 (D.Conn. 2003)
(citing Reed v. Signode Corp., 652 F.Supp. 129, 137 (D.Conn. 1986) The case
should only be submitted to the jury if the court determines that reasonable
minds may differ as to whether or not the conduct was extreme and outrageous.
Reed, 652 F.Supp. at 137. “Connecticut courts have held that emotional distress
is severe when it reaches a level which ‘no reasonable person could be expected
to endure.’ ” Birdsall, 294 F.Supp. at 175-76 (citing Mellaly v. Eastman Kodak, 42
Conn. Supp. 17, 597 A.2d 846 (1991).

i. Mr. Nelson
The material submitted by Mr. Nelson in opposition to summary judgment
is completely devoid of any evidence to substantiate a claim of severe emotional
distress. Mr. Nelson has not presented any medical records demonstrating that
he sought or received treatment for emotional distress, nor has he presented any
sworn statements on his own behalf in the form of deposition testimony or an
affidavit indicating that he has suffered from severe emotional distress. Further,
Mr. Nelson admitted, in his Rule 56(a)(2) Statement that he “received no medical
treatment for emotional distress arising out of his arrest on October 22, 2006, and
he has no history of mental health problems.” [Dkt. #159, Ex. 1, Pl. Edward
Nelson Rule 56(a)(2) Stmt., ¶35]. Although “the absence of treatment does not
preclude proof of severe emotional distress,” whereas here, absolutely no
evidence has been submitted indicating that Mr. Nelson suffered severe
emotional distress, or any emotional distress whatsoever, as a result of the

40

Defendants’ conduct, summary judgment is warranted. Birdsall, 249 F.Supp. at
175.

ii. Mrs. Nelson
Unlike Mr. Nelson, Mrs. Nelson has submitted several pieces of evidence to
substantiate a claim of severe emotional distress. Mrs. Nelson’s deposition
testimony reports that she was “traumatized by the whole event.” [Dkt. #160, Ex.
32, Deposition of Patricia Nelson, 14:14]. Further, a medical report from the
Westchester Medical Center dated April 20, 2011 indicates that Mrs. Nelson is
“struggling emotionally and legally” as a result of the incident in October, 2006.
[Dkt. #160, Ex. 13, Westchester Medical Center, Outpatient Progress Note]. The
report further states that Mrs. Nelson has difficulty sleeping and has experienced
“passive suicidal ideation,” and lists diagnoses of “Major Depressive Disorder,
Recurrent, Moderate 296.32 (Chronic)” and “Post-Traumatic Stress Disorder
309.81 (With delayed onset, Chronic).” [Id.]. The Defendants have produced no
evidence that these conditions predate or were caused by conditions or events
other than her arrest.
Given the material factual dispute regarding the amount and reasonability
of force applied by Defendant Connelly to Mrs. Nelson, reasonable minds could
differ as to whether or not Defendant Connelly’s conduct was extreme and
outrageous. See Ochoa, 2011 WL 3267705, at *11 (declining to grant summary
judgment as to plaintiff’s claim of intentional infliction of emotional distress on
the basis of a material factual dispute regarding plaintiff’s excessive force claim).
Further, post-traumatic stress disorder, including suicidal thoughts and difficulty
41

sleeping are sufficiently serious conditions that a reasonable juror could find that
they amount to severe emotional distress.
Accordingly, summary judgment is denied as to Count Nine, a claim of
Intentional Infliction of Emotional Distress raised by Mrs. Nelson against
Defendant Connelly.

J. Indemnification under Conn. Gen. Stat. §7-465
In Count Fourteen, Plaintiffs seek indemnification under Conn. Gen. Stat.
§7-465. Conn. Gen. Stat. §7-465 provides that:
“[a]ny town, city, or borough ... shall pay on behalf of any employee of
such municipality ... all sums which such employee becomes obligated to
pay by reason of the liability imposed upon such employee by law for
damages awarded for infringement of any person's civil rights or for
physical damages to person or property ... if the employee, at the time of
the occurrence, accident, physical injury or damages complained of, was
acting in the performance of his duties and within the scope of his
employment, and if such occurrence, accident, physical injury or damage
was not the result of any willful or wanton act of such employee in the
discharge of such duty ... Governmental immunity shall not be a defense in
any action brought under this section.”
“§7-465 is an indemnity statute; it does not create liability.” Faulks, 2010 WL
259076, at *15. Under §7-465, “the obligation imposed is indemnification for the
legal liability arising out of certain tortious conduct of the municipal employee.”
Ahern v. City of New Haven, 190 Conn. 77, 92, 459 A.2d 118 (1983). A
municipality’s duty to indemnify “attaches only when the employee is found to be
liable and the employee’s actions do not fall within the exception for willful and
wanton acts.” Myers v. City of Hartford, 84 Conn. App. 395, 400, 853 A.2d 621
(2004). A plaintiff seeking indemnification under §7-465 must first “allege in a
separate count and prove the employee’s duty to the individual injured and the
42

breach thereof. Only then may the plaintiff go on to allege and prove the
municipality’s liability by indemnification.” Sestiso v. City of Groton, 178 Conn.
520, 527, 423 A.2d 165 (1979).
Plaintiffs are not entitled to indemnification from the City of Stamford
where no judgment has yet been entered in their favor against any of the
Defendants, municipal employees of the City of Stamford. Accordingly, summary
judgment is premature as to Count Fourteen.
K. Fourth Amendment Strip Search
Plaintiffs both allege that they were subjected to illegal strip searches in
violation of the Fourth Amendment while in the custody of the Stamford Police
Department. The Defendants argue that, according to the definition of a strip
search set forth in Conn. Gen. Stat. §54-33k, the Defendants did not conduct a
strip search of either Mr. Nelson or Mrs. Nelson. Rather, the Defendants contend
that the searches were conducted pursuant to Stamford Police Department policy
requiring that during the processing of prisoners, officers are to confiscate “all
items that can be used as a weapon, or anything that a prisoner can injure
themselves with. So it is policy that all shoelaces, belts, extra clothing, brassiers,
sharp jewelry, everything must be removed.” [Dkt. #160, Ex. 28, Deposition of
Sergeant Fitzgibbons, 37:14-20] Further, Defendants argue that the Defendants
are protected by qualified immunity because they assert that the searches
conduct did not violate either the Plaintiffs’ constitutional rights or clearly
established law.

43

The Defendants’ reliance on the definition of a strip search under
Connecticut law is misplaced, as Plaintiffs’ claims regarding illegal strip searches
have both been raised under the Fourth Amendment pursuant to 42 U.S.C. §1983.
Under the Fourth Amendment, the reasonableness of any search incident
to arrest depends on the manner in which it was conducted. See Wilson v.
Aquino, 233 Fed. Appx. 73 (2d Cir. 2007) (citing Bell v. Wolfish, 441 U.S. 520, 559
(1979). In Bell v. Wolfish, the Supreme Court instructed that this reasonableness
analysis requires a “balancing of the need for the particular search against the
invasion of the personal rights that the search entails. Courts must consider the
scope of the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.” Bell v.
Wolfish, 441 U.S. at 559.
In Wolfish, the Supreme Court applied this balancing test to the context of
a prison policy requiring pre-trial detainees in a short-term custodial facility in
New York City to undergo visual body-cavity inspections after every contact visit
with a person from outside the institution. Id. at 558. The Wolfish Court
concluded that “the security interests of the prison in undertaking strip/body
cavity searches after “contact” visits outweighed the privacy interests of the
inmates-prisoners who had already been arraigned, had failed to make bail, and
had presumably chosen to receive visitors and to enjoy physical contact with
them.” Weber v. Dell, 805 F.2d 796 (2d Cir. 1986) (citing Bell v. Wolfish, 441 U.S. at
546.

44

Relying on Wolfish, the Court will examine the reasonableness of the
searches of Mr. and Mrs. Nelson separately, applying the following factors: (1) the
place in which the search was conducted; (2) the scope of the particular
intrusion; (3) the manner in which the search was conducted; and (4) the
justification for initiating the search. Bell v. Wolfish, 441 U.S. at 559.
i.

Mrs. Nelson
a. Place in which the Search was Conducted

The search of Mrs. Nelson was conducted in a single person female cell in
the Stamford Police Department in the presence of two male officers and one
female officer. There was a video security surveillance camera capturing the
activity inside the cell which recorded the activity in the cell. There is no
indication from the video recording of the search that this setting was in any way
inadequate to protect Mrs. Nelson’s privacy interests, nor does Mrs. Nelson
allege in her complaint, affidavit, or deposition testimony that she was exposed,
at the time of the search, to anyone other than the three officers in attendance.
Several cases have held that requiring a woman to expose her breasts
constituted a strip search due to the fact that the woman was exposed, at the time
of the search, to individuals other than the officers conducting the search. See
e.g., Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989) (woman was required to
expose her breast area “in front of a window in a holding room, in plain view of
other persons”); see also Leinen v. City of Elgin, No. 98-c-8225, 2000 WL 1154641,
at *1, (N.D.Ill., Aug. 15, 2000) (woman was instructed to life her shirt and

45

brassiere, exposing her breasts, while in front of a window and visible to people
in the booking area).
Here, the search of Mrs. Nelson was conducted in a female cell in the
presence of the three officers conducting in the search. The record is completely
devoid of any indication that Mrs. Nelson was exposed to anyone other than the
participating officers.
The video tape of the search shows that Mrs. Nelson was severely
inebriated, uncooperative, erratic, and belligerent. It is apparent from the video
that a single female officer would not have been able to conduct a search of Mrs.
Nelson and that it was difficult for three officers to search her.
b. Scope of the Particular Intrusion
Mrs. Nelson contends that the scope of the search was unreasonable on
the basis that her breasts were exposed to the view of the officers, and because
she alleges that “Sergeant Fitzgibbons had his hands inside the side of my pants
touching my buttocks for no other reason than to humiliate me.” [Dkt. #159, Ex.
25, Affidavit of Patricia Nelson, ¶¶ 9-10].
Defendants argue that the search of Mrs. Nelson should not be
characterized as a strip search because although the video reveals that her
breasts were exposed, they contend that no visual search of her breasts was
undertaken, demonstrated by the fact that during the time that the officers were in
the cell, Mrs. Nelson was lying face down, and her breasts were not exposed,
rather Mrs. Nelson was only sitting upright or standing after the officers had left
the cell. Moreover, Defendants argue that the video shows that the officers left a

46

shirt on the bed next to Mrs. Nelson when they exited the cell which Mrs. Nelson
could have put on to cover her breasts.
Pursuant to Bell v. Wolfish, the Second Circuit has held that “the term ‘strip
search’ is generally used to describe any inspection of the naked body.” Kelsey
v. County of Scoharie, 567 F.3d 54, 62 (2d Cir. 2009) (citing N.G. v. Connecticut,
382 F.3d 225, 228 n.4 (2d Cir. 2003).
In Reinhart v. City of Schenectady Police Dept., the court analyzed a very
similar factual scenario, involving a woman arrested for misdemeanor who, upon
placement in a holding cell at the local police station pending arraignment, was
instructed to remove her brassiere pursuant to a Schenectady Police Department
policy requiring all females to remove their brassieres when placed in a holding
cell for the safety of inmates and to prevent suicide. 599 F.Supp.2d 323 (N.D.N.Y.
2009). Relying on a discussion by the Second Circuit of the meaning of the word
“search,” and focusing on the limited scope of the incident, the court found that
the plaintiff had mischaracterized her claim as one asserting an illegal strip
search, instead holding that removal of the brassiere at the officer’s direction,
constituted a seizure. However, the Second Circuit discussion of the word
“search” was extracted from United States v. Snow, 44 F.3d 133 (2d Cir. 1995),
which analyzed the meaning of the word “search” in the context of an individual’s
consent to a search of his car. The Second Circuit found that:
The word “search” carries a common meaning to the
average person. Dictionary definitions furnish some
guide: “to go over or look through for the purpose of
finding something; explore; rummage; examine,” “to
examine closely and carefully; test and try; probe,” “to
find out or uncover by investigation.” Webster's New
47

World Dictionary 1210 (3d ed. 1988). The Oxford English
Dictionary (2d ed. 1989) is not much different:
“examination or scrutiny for the purpose of finding a
person or thing,” “look through, examine internally (a
building, an apartment, a receptacle of any kind) in
quest of some object concealed or lost.” Id. at 804, 805.
Thus, under either the King's or the Colonists' English,
the term “search” implies something more than a
superficial, external examination. It entails “looking
through,” “rummaging,” “probing,” “scrutiny,” and
“examining internally.”
The Second Circuit concluded, given the various meanings of the term “search,”
that “an individual who consents to a search of his car should reasonably expect
that readily-opened, closed containers discovered inside the car will be opened
and examined.” Snow, 44 F.3d at 135.
The Court finds the Reinhart court’s reliance on the Second Circuit’s
discussion of the meaning of the word “snow” within the context of consent to a
car search is misplaced. In Wilson v. Aquino, the Second Circuit made clear that
“the reasonableness of any search incident to arrest” depends on “the manner in
which it was conducted,” referring to the reasonableness test set forth by the
Supreme Court in Bell v. Wolfish. 233 Fed.Appx. at 1 (emphasis added). Moreover,
the plain language of one of the definitions of “search” discussed by the Second
Circuit in Snow includes the phrase “to go over or look through for the purpose
of finding something,” which is precisely the behavior in which the three officers
participating in the search of Mrs. Nelson were engaged. Defendant Fitzgibbons
stated in his deposition that the purpose of the search was to “try to remove
anything that she could strangle herself with,” including “shoelaces, belts, extra
clothing, brassieres, sharp jewelry, everything must be removed.” [Dkt. #160, Ex.

48

28, Dep. of Sergeant Fitzgibbons, 37:6-20]. Accordingly, the Court will analyze
the nature and scope of the search by referring to other cases examining the
exposure or partial exposure of an individual’s body under the reasonableness
test set forth by the Supreme Court in Bell v. Wolfish.

Several other circuits have held that an individual need not have been fully
undressed for the search to be characterized as a strip search. See, e.g., US v.
Edwards, 2011 WL 6825360 (4th Cir. Dec. 29, 2011); see also Wood v. Hancock
Cnty. Sheriff’s Dep’t, 354 F.3d 57, 63 n.10 (1st Cir. 2003) (finding that “a strip
search may occur even when an inmate is not fully disrobed”). The Fourth Circuit
in US v. Edwards, found the Supreme Court’s analysis in Safford Unified School
District No. 1 v. Redding, --- U.S.---, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) to be
instructive. See US v. Edwards, 2011 WL 6825360, at *4. In Safford, the Supreme
Court held that a search of a student requiring the student to “remove her clothes
down to her underwear, and then ‘pull out’ her bra and the elastic band on her
underpants . . . in the presence of two officials who were able to see her
necessarily exposed breasts and pelvic area to some degree,” constituted a strip
search. 129 S.Ct. at 2641.
Here, the video exhibit submitted by both Plaintiffs and Defendants
undeniably shows that Mrs. Nelson’s breasts were exposed when her shirt was
removed, her brassiere removed, and her tank top pulled beneath her breasts.
Moreover, Mrs. Nelson alleges that Defendant Sergeant Fitzgibbons “had his
hands inside the side of my pants touching my buttocks for no other reason than
to humiliate me.”
49

Even construing the facts in favor of Mrs. Nelson as the Court is required
to do on summary judgment, the Court finds that the search did not constitute a
strip search. Unlike the cases previously discussed involving the exposure of a
woman’s breasts under circumstances in which the woman was exposed to more
people than simply the officers conducting the search, there is no indication that
Mrs. Nelson’s breasts were exposed to anyone other than the three officers
conducting the search. See Masters, 872 F.2d 1248; see also Leinen v. City of
Elgin, 2000 WL 1154641, at *1. However, the mere fact that the search does not
constitute a strip search does not conclude the inquiry regarding the
reasonableness of the search. The scope of the search is simply one of the
factors to be weighed by the Court in determining the reasonableness of the
search under the test set forth in Wolfish.
c. Manner in which the Search was Conducted
The video recording of the search, submitted as an exhibit by both the
Plaintiffs and the Defendants, shows that the search of Mrs. Nelson was
conducted by three officers. Two male officers held Mrs. Nelson by her arms,
while a female officer wearing plastic gloves conducted the search, including the
removal of Mrs. Nelson’s shirt and brassiere.
However, Mrs. Nelson contends her in affidavit that the male officers had
more involvement in the search than simply restraining her. Mrs. Nelson alleges
that her clothing was removed “at the order of Sgt. Fitzgibbons who assisted PO
Sandra Connetta and PO James Herbert with removing my clothing and exposing
my breast to the view of these officers.” [Dkt. #159, Ex. 25, Affidavit of Patricia

50

Nelson, ¶9]. Mrs. Nelson further contends that “Sgt. Fitzgibbons had his hands
inside the side of my pants touching my buttocks for no other reason than to
humiliate me.” [Id. at ¶10]. Defendants have not offered any statement by
Defendant Sergeant Fitzgibbons denying that he placed his hands inside Mrs.
Nelson’s pants and touched her buttocks. Nor have the Defendants offered any
statement contradicting Mrs. Nelson’s allegation that PO James Herbert was
involved in the removal of her clothing.
What is apparent from the video tape is the fact that Mrs. Nelson’s behavior
dictated the manner in which the search was conducted. Her conduct
necessitated a heightened degree of police action. She was severely intoxicated,
highly agitated, belligerent and uncooperative. She was using profanity and
impeding the officer’s efforts to conduct a search of her person. Her behavior
necessitated the placement of her back down on the cell bed in order to complete
the search. Her erratic behavior made it difficult at best for the officers
conducting the search to totally control how and where they came into contact
with her person.
The Court must also consider the fact that the search was cross-gendered.
The reasonability of cross-gendered searches is a complex and developing area
of law and has been the focus of discussion for standard and law making bodies,
including the American Bar Association in revising its Standards on the
Treatment of Prisoners and the Department of Justice in drafting the forthcoming
Prison Rape Elimination Act Standards. See Robyn Gallagher, Constitutional
Law—Cross-Gender Pat Searches: The Battle Between Inmates and Corrections

51

Officers Enters the Courtroom, 33 W. New Eng. L. Rev. 567 (2011). In Colman v.
Vasquez, another court in this District addressed the constitutionality of crossgender pat searches in the context of a female prisoner incarcerated in a special
unit for victims of sexual assault who was forced to submit to pat searches by
male guards. 142 F.Supp.2d 226 (D.Conn. 2001). The Colman court noted that “
‘women experience unwanted touching by men differently from men subject to
comparable touching by women.’ ” 142 F.Supp. at 232 (quoting Jordan v.
Gardner, 986 F.2d 1521 (9th Cir. 1993)).
Although the context of the cross-gender searches addressed by the court
in Colman is different than the present case, the gender differences contained in
Mrs. Nelson’s allegation that one male officer assisted with the removal of her
clothing, and another male officer placed his hands inside her pants and touched
her buttocks are highly relevant to the analysis of the manner of the search.
d. Justification for Initiating the Search.
The Defendants’ have offered the deposition testimony of Defendant
Sergeant Fitzgibbons to set forth the justification for conducting the search of
Mrs. Nelson. Defendant Sergeant Fitzgibbons testified that, “the purpose of what
was happening on Mrs. Nelson is to take her property, not to search her. We’re
not looking for contraband, evidence or anything from a criminal case to further
charge her with anything. All we were doing is trying to remove anything that she
could strangle herself with.” [Dkt. #160, Ex. 28, Deposition of Sergeant
Fitzgibbons, 37:6-11]. Defendant Sergeant Fitzgibbons further testified that it is
the “policy and procedure in the Stamford Police Department Headquarters

52

Division for the processing of a prisoner, that we’re to take all items that can be
used as a weapon, or anything that a prisoner can injure themselves with. So it is
the policy that all shoelaces, belts, extra clothing, brassieres, sharp jewelry—
everything must be removed.”
The Defendants’ purported purpose of removing potentially dangerous
items on Mrs. Nelson’s person is a legitimate one. See Reinhart, 599 F.Supp.2d at
334 (recognizing that “brassieres are seized purely as a safety measure to
preclude their use as a suicide tool”). In fact, the Second Circuit has been
presented with a case alleging, among other things, deliberate indifference to
medical needs and negligence claims, stemming from a pre-trial detainee’s death
in police custody, having hung herself from the bars of her cell with a bra
wrapped around her neck. See Washington v. City of Binghamton, 152 F.3d 922
(2d Cir. 1998). Moreover, the Defendants’ interest in removing dangerous items
from Mrs. Nelson’s person was heightened given her hostile state and her erratic
body movements, as shown on the video recording of her cell. Further, Mrs.
Nelson was heavily under the influence of alcohol, as is apparent from her
behavior on the video and is confirmed by the medical records submitted by Mrs.
Nelson from the Stamford Hospital Emergency Department dated October 22,
2006 listing a diagnosis of “detox intox.” [Dkt. #160, Ex. 46, Stamford Hospital
Medical Records for Patricia Nelson]. It is possible given the extreme fitful
demeanor displayed by Mrs. Nelson in the video and her erratic body movements
that Mrs. Nelson may have been under the influence of additional control
substances as well.

53

Analyzing all four factors as set forth by the Supreme Court in Wolfish, the
Court finds that, while it is a very close call, a material factual dispute exists
regarding the reasonability of the search of Mrs. Nelson conducted by the
Defendants. A reasonable jury could conceivably find that the removal of Mrs.
Nelson’s shirt and brassiere by a female and a male officer and the touching of
Mrs. Nelson’s buttocks underneath her pants by a male officer, despite the
Defendants’ interest in removing dangerous items from Mrs. Nelson to ensure her
safety constituted an unreasonable search in violation of the Fourth Amendment.
Accordingly, summary judgment is denied as to Mrs. Nelson’s claim of an
unconstitutional strip search in violation of the Fourth Amendment.
Where, as here, facts material to the qualified immunity analysis are in
dispute, summary judgment is not appropriate. See Thomas v. Roach, 165 F.3d
137, 143 (2d Cir. 1999) (“Summary Judgment on qualified immunity is not
appropriate when there are facts in dispute that are material to a determination of
reasonableness.”); see also Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998)
(“summary judgment based on either the merits or on qualified immunity requires
that no dispute about material factual issues remain”).
ii.

Mr. Nelson

Mr. Nelson claims that he was subjected to an unconstitutional strip search
in the booking area of the Stamford Police Department. Specifically, Mr. Nelson
claims that while in the booking area, his pants were removed and Defendant
Sergeant Fitzgibbons raised his arms behind his back causing his back to bend
downward and his penis to be exposed to the officers in the booking area,

54

causing a humiliating experience. [Dkt. #160, Ex. 16, Affidavit of Edward Nelson,
¶¶8-9].
The Defendants contend that although Mr. Nelson’s shirt and pants were
removed, Mr. Nelson remained in his underwear at all times. Further, Defendants
argue that no search to retrieve contraband was conducted; rather, Defendants
assert that Mr. Nelson’s shirt and pants were removed to prepare him for
transport to the hospital.
A video surveillance camera of the booking area submitted by both the
Plaintiffs and Defendants recorded the search of Mr. Nelson. Mr. Nelson is shown
in the booking area with six police officers. First, Mr. Nelson is shown removing
his shoes, belt, and shirt at the instruction of the officers. Although Mr. Nelson is
heard screaming, he complies with the instructions to remove these items of
clothing. Then Mr. Nelson is placed onto the floor (as previously discussed in the
context of Mr. Nelson’s excessive force claim, it is unclear how much force is
applied by the officers in order to place Mr. Nelson on the floor). Once on the
floor, Mr. Nelson is held at his arms by two male officers and at the feet by one
male officer and his pants are removed by another male officer. Mr. Nelson is
then lifted to his feet in handcuffs and wearing only his underwear and is guided
to a stretcher in the hallway.
Applying the definition of a strip search as articulated by the Second
Circuit in Kelsey, defined as “any inspection of the naked body” the Court finds
that Mr. Nelson was not subjected to a strip search. Kelsey, 567 F.3d at 62 (citing
N.G. v. Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2003)). Although Mr. Nelson’s

55

shirt and pants were removed, the video of the booking area shows that the
officers did not conduct a visual inspection of Mr. Nelson’s naked body. Not only
did Mr. Nelson remain in his underwear, but the officers do not conduct a visual
inspection of his body.
However, the Court is required to analyze the reasonableness of the search
under the balancing test set forth in Wolfish. See Aquino, 233 Fed.Appx. at 76
(holding that the reasonableness of any search conducted incident arrest
depends on the manner in which it was conducted)(citing Wolfish, 441 U.S. at
559). The Court must consider “the scope of the particular intrusion, the manner
in which it is conduct, the justification for initiating it, and the place in which it is
conducted.” Wolfish, 441 U.S. at 559.
The Court finds that applying the four-part balancing test and construing
the evidence in the light most favorable to Mr. Nelson, no reasonable jury could
find that the minimally intrusive removal of Mr. Nelson’s shirt and pants
constituted an unreasonable search and seizure in violation of the Fourth
Amendment. Mr. Nelson’s shirt and pants were removed in the presence of
predominantly male officers. Although one female officer enters the room she
does not assist with the removal of Mr. Nelson’s clothes and she remains in the
room only briefly. Further, during the female officer’s presence in the room Mr.
Nelson is seen standing with his underwear on his body, such that his genitals
are not exposed. The search was conducted by all male officers, presenting no
cross-gender issues. Moreover, the search was no more intrusive than was
necessary to achieve the purported goal of the Stamford Police Department

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policy, to “take all items that can be used as a weapon, or anything that a
prisoner can injure themselves with. So it is the policy that all shoelaces, belts,
extra clothing, brassieres, sharp jewelry—everything must be removed.” [Dkt.
#160, Ex. 28, Deposition of Sergeant Fitzgibbons, 37:14-20].
Accordingly, summary judgment is granted as to Mr. Nelson’s claim of an
unconstitutional strip search in violation of the Fourth Amendment. Having found
that no constitutional violation occurred, the Court need not address the
Defendants’ claims of qualified immunity. See Anderson v. Lantz, No. 3:07-cv1689 (MRK), 2009 WL 2132710, at *7 (D.Conn. July 14, 2009) (declining to address
defendants’ claims of qualified immunity in light of the fact that no constitutional
violation was found).
L. Conspiracy Claims
Plaintiffs both allege that the Defendants conspired to conceal alleged
excessive force violations against the Plaintiffs by agreeing to omit certain facts
from their reports and include other false information in the reports. [Dkt. #116,
Third Amended Complaint, ¶¶63-64]. Defendants contend that Plaintiffs have
failed to present evidence showing an agreement between any of the Defendants
to inflict an unconstitutional injury.
To establish a conspiracy under §1983, a plaintiff must show: “(1) an
agreement between two or more state actors or between a state actor and a
private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.” Ciambriello v.
County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). In Ciambriello, the Second

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Circuit instructed that “complaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to deprive the
plaintiff of his constitutional rights are properly dismissed; diffuse and expansive
allegations are insufficient, unless amplified by specific instances of
misconduct.” Id.
The Court finds that the Plaintiffs have failed to present “even a scintilla of
evidence regarding the existence, or even inference, of any specific agreement to
violate Plaintiff’s rights, whether such an agreement was entered into, the nature
of the agreement, or specific acts in furtherance of the agreement.” Kramer v.
City of New York, No. 04-Civ-106 (HB), 2004 WL 2429811, at *7 (S.D.N.Y. Nov. 1,
2004). Accordingly, summary judgment is granted as to the Plaintiffs’ claims of a
conspiracy to violate their constitutional rights.
M. Remaining Claims
To the extent that the Plaintiffs allege claims against Defendants Chief
Brent Larrabee, Lieutenant Francis Cronin, Chief of Police Brent Larrabee,
Lieutenant William Watrous, Officer Mark Ligi, Officer Brendetta Baines, Sergeant
Christian DiCarlo, and Sergeant Louis DeRubeis, the Court grants summary
judgment as to those claims as the Plaintiffs have failed to present evidence
demonstrating these individuals personal involvement in any purported violation
of the Plaintiffs’ constitutional rights. See Farrell, 449 F.3d at 484 (“‘It is well
settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under
§1983’”) (citation omitted). Moreover, the Court notes that Plaintiffs concede that

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Lieutenant William Watrous had no personal involvement in this case. [Dkt. #159,
Ex. 1, Pl. Edward Nelson Rule 56(a)(2)Stmt., ¶32]; [Dkt. #160, Ex. 1, Pl. Patricia
Nelson Rule 56(a)(2) Stmt., ¶28].
Accordingly, summary judgment is granted as to any claims raised by
Plaintiffs against these Defendants.

IV.

Conclusion
Based on the above reasoning, Defendants’ [Dkt. #141, #144] motions for

summary judgment against Edward and Patricia Nelson are GRANTED in part and
DENIED in part. Mr. and Mrs. Nelson’s claims of excessive force in violation of
the Fourth Amendment pursuant to 42 U.S.C. §1983, assault and battery under
Connecticut common law, recklessness and negligence under Connecticut
common law, negligent infliction of emotional distress under Connecticut
common law, and negligence against the City of Stamford under Conn. Gen. Stat.
§52-557n will proceed to trial. The claims of an unreasonable strip search in
violation of the Fourth Amendment and intentional infliction of emotional distress
will proceed to trial as to Mrs. Nelson only. Summary judgment is granted as to
all other claims.

IT IS SO ORDERED.
_______/s/__________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: January 25, 2012

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