Samuel et al v. Hartford et al

Filing 78

ORDER denying 63 Motion for Summary Judgment; granting 72 Motion for Summary Judgment as to all federal claims. The Court declines to exercise supplemental jurisdiction over any state law claims. The Clerk is instructed to enter judgment in favor of defendants and close this case. Signed by Judge Warren W. Eginton on 10/10/12. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

AUGUSTUS SAMUEL, et al.,
Plaintiff,
v.
CITY OF HARTFORD, et al.,
Defendants.

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Case No. 3:10cv635(WWE)

RULING ON MOTIONS FOR SUMMARY JUDGMENT [Docs. ## 63 & 72]
The plaintiff, Augustus Samuel, commenced this action by
complaint filed in state court.
to federal court.

The defendants removed the case

Samuel contends that the defendants violated

his rights under state and federal law.

Specifically, he asserts

state law claims of use of excessive force to effect his arrest,
deliberate indifference to his criminal history when preparing
the arrest warrant and harassment as well as Fourth Amendment
violations.
judgment.

Both parties have filed motions for summary
For the reasons that follow, Samuel’s motion will be

denied and the defendants’ motion will be granted.
I.

Samuel’s Motion for Summary Judgment
Rule 56(a), D. Conn. L. Civ. R., requires that a motion for

summary judgment be accompanied by “a document entitled ‘Local
Rule 56(a)1 Statement,’ which sets forth in separately numbered
paragraphs meeting the requirements of Local Rule 56(a)3 a
concise statement of each material fact as to which the moving

party contends there is no genuine issue to be tried.”

Rule

56(a)3 requires that each statement in the Rule 56(a)1 Statement
“must be followed by a specific citation to (1) the affidavit of
a witness competent to testify as to the facts at trial and/or
(2) evidence that would be admissible at trial.

The affidavits,

deposition testimony, responses to discovery requests, or other
documents containing such evidence shall be filed and served”
with the Local Rule 56(a)1 Statement.

This specific citation

requirement applies to pro se litigants as well as to attorneys.
Samuel has filed a motion for summary judgment, a memorandum
in support and various exhibits but has not filed a statement of
undisputed facts.

Samuel’s motion for summary judgment is denied

without prejudice for failure to comply with court rules.

The

court considers the arguments in Samuel’s memorandum and his
exhibits as opposition to the defendants’ motion for summary
judgment.
II.

Defendants’ Motion for Summary Judgment
The defendants, the City of Hartford, Daryl K. Roberts,

Victor Otero, Michael Chauvin, Eric Gauvin, Jeffrey Morande,
Marco Tedeschi, Brian Salkeld, Paolo Cicero, Marcos Massa and
Michael Eisele, move for summary judgment on the ground that
there are no genuine issues to be tried on any of Samuel’s
claims.

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A.

Standard of Review

In a motion for summary judgment, the burden is on the
moving party to establish that there are no genuine issues of
material fact in dispute and that it is therefore entitled to
judgment as a matter of law.

See Rule 56(a), Fed. R. Civ. P.;

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

The

moving party may satisfy this burden “by showing–that is pointing
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) (per curiam) (internal
quotation marks and citations omitted).

Once the moving party

meets this burden, the nonmoving party must “set forth specific
facts showing that there is a genuine issue for trial,” Anderson,
477 U.S. at 255, and present such evidence as would allow a jury
to find in his favor in order to defeat the motion for summary
judgment.
2000).

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.

Merely verifying the allegations of the complaint in an

affidavit, however, is insufficient to oppose a motion for
summary judgment.

Zigmund v. Foster, 106 F. Supp. 2d 352, 356

(D. Conn. 2000) (citing cases).
When reviewing the record, the court resolves all
ambiguities and draws all permissible factual inferences in favor
of the party against whom summary judgment is sought.

Patterson

v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2004).

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If

there is any evidence in the record on a material issue from
which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is inappropriate.

Security

Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d
77, 83 (2d Cir. 2004).

However, “‘[t]he mere of existence of a

scintilla of evidence in support of the [plaintiff’s] position
will be insufficient; there must be evidence on which the jury
could reasonably find for the [plaintiff].’”

Dawson v. County of

Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting Anderson,
477 U.S. at 252)).
B.

Facts1

In December 2007, the Hartford Police Department received
information from the Department of Children and Families that

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The facts are taken from the defendants’ Local Rule 56(a)1
Statement and attached exhibits. Local Rule 56(a)2 requires the
party opposing summary judgment to submit a Local Rule 56(a)2
Statement which contains separately numbered paragraphs
corresponding to the Local Rule 56(a)1 Statement and indicates
whether the opposing party admits or denies the facts set forth
by the moving party. Each admission or denial must include a
citation to an affidavit or other admissible evidence. In
addition, the opposing party must submit a list of disputed
factual issues. See D. Conn. L. Civ. R. 56(a)2 & 56(a)3.
Despite being afforded notice of his obligation to respond,
Samuel has neither filed a Local Rule 56(a)2 Statement within the
required twenty-one days nor sought additional time within which
to do so. See Doc. #75. Accordingly, defendants’ facts are
deemed admitted. See D. Conn. L. Civ. R. 56(a)1 (“All material
facts set forth in said statement will be deemed admitted unless
controverted by the statement required to be served by the
opposing party in accordance with Rule 56(a)2.”). The court has,
however, considered Samuel’s exhibits submitted with his motion
for summary judgment in deciding this motion.
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Samuel had sexually assaulted his minor daughter.

The police

conducted an independent investigation and, on December 27,2007,
defendant Massa prepared an affidavit in support of an arrest
warrant.

On January 8, 2008, the arrest warrant application was

signed by a state’s attorney and a Superior Court judge.
On January 31, 2008, members of the Hartford Police
Department, the Office of Adult Probation and the Department of
Correction served the arrest warrant on Samuel.

Because Samuel

had a criminal history involving unlawful discharge of a firearm,
the defendants deemed service of the warrant to be high risk and
sought the assistance of the Hartford Police Department emergency
response team (“ERT”).
Samuel, his daughter, Tonya Martin, his grandson, Zakwinton
Martin, and several other individuals were in the residence when
the warrant was served.

One ERT made a forced entry into the

first floor of the residence, where Samuel, his daughter and
grandson were located, while a second ERT made a forced entry
into the second floor of the residence.

Police sources had

indicated that Samuel would be found on the second floor.
Samuel, his daughter and grandson were secured without
incident.

Samuel’s daughter and grandson stated in depositions

that no force was used against them and they witnessed no force
used against Samuel.
Defendant Tedeschi questioned Samuel about the gun safe that

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the ERT had discovered on the second floor.

When asked whether

there were any firearms in the safe, Samuel acknowledged that
there were and agreed to open the safe.

Samuel willingly

accompanied defendants Tedeschi and Cicero to the second floor.
Samuel’s daughter stated that Samuel was not threatened and no
force was used in escorting him to the second floor.

Defendants

Tedeschi and Cicero found one handgun and several long guns in
the safe.

Samuel later pled guilty to one count of risk of

injury to a minor and two counts of illegal possession of a
firearm.
Samuel alleges that he suffered severe physical and
emotional pain as a result of the incident and has been confined
to a wheelchair as a result of the alleged use of force.

The

following day, Samuel went to the Hartford Hospital emergency
room complaining of chest pains.

He made no reference to any

injuries allegedly inflicted by the defendants.

The Hartford

Hospital medical records indicate that Samuel underwent a stress
test procedure on February 2, 2008, during which he was required
to walk, jog or run on a treadmill.

Samuel was able to perform

the test until he stopped due to fatigue.

A May 2008 entry in

Samuel’s prison medical record indicated that he walked easily
until staff mentioned that fact, then he grabbed for a chair.
Samuel has proffered no medical records to support his alleged
injuries.

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C.

Discussion

In the first three counts of his complaint, Samuel asserts
state law claims for use of excessive force, negligence or
deliberate indifference in preparing the incident report and
arrest warrant affidavit and harassment.
In the fourth count, he asserts violations of his federal
constitutional rights.

Samuel contends that the defendants

violated his Fourth Amendment rights to be free from unreasonable
search and seizure, to avoid false imprisonment and of privacy as
well as his Fourteenth Amendment right to procedural due process.
1.

Unreasonable Search and Seizure and Privacy

The unreasonable search and seizure claim and the privacy
claim both are based on Samuel’s allegation that the defendants
exceeded the scope of the search warrant by bringing him to and
searching the second floor of his residence.

The Fourth

Amendment is concerned with an individual’s right to privacy, and
the security of his property, especially in his home.

See United

States v. United States District Court, 407 U.S. 297, 313 (1972);
Jones v. United States, 362 U.S. 257, 261 (1960).
The defendants argue that these claims are barred by the
holding in Heck v. Humphrey, 512 U.S. 477 (1994).

In Heck, the

Supreme Court held that, if a decision in the prisoner’s favor
would call into question the validity of his conviction, the
prisoner may not bring an action for damages until his conviction

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has been reversed on direct appeal or called into question by the
issuance of a writ of habeas corpus.

See id. at 486-87.

This

bar applies regardless of the relief sought or the specific
target of the lawsuit.

The only question is if success

necessarily would demonstrate the invalidity of confinement.
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Samuel pled guilty to one count of risk of injury to a minor
and two counts of illegal firearms possession.

If the court were

to determine that the defendants had violated the Fourth
Amendment proscription against illegal search and seizure with
regard to the search of the second floor and seizure of the
firearms, this conviction would necessarily be called into
question.

Thus, Samuel’s Fourth Amendment claims for illegal

search and seizure and violation of his right to privacy in his
home are barred by Heck.

The defendants’ motion for summary

judgment is granted as to these claims.
2.

False Imprisonment

In analyzing claims alleging the constitutional tort of
false imprisonment the federal court looks to the law of the
state in which the false imprisonment allegedly occurred.

See

Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007).
In Connecticut, false imprisonment “is the unlawful restraint by
one person of the physical liberty of another.”
(internal quotation marks and citation omitted).

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Id. at 204
However, if the

plaintiff was arrested pursuant to a facially valid warrant,
there is no cause of action for false imprisonment.

See Outlaw

v. City of Meriden, 43 Conn. App. 387, 393, 682 A.2d 1112 (1996).
Here, Samuel was arrested pursuant to a facially valid
warrant.

Thus, his false imprisonment claim is not cognizable.

The defendants’ motion for summary judgment is granted as to the
false imprisonment claim.
3.

Procedural Due Process

Samuel cites the following examples in support of his claim
that he was denied procedural due process:

defendant Roberts

ordered his subordinates to exceed the scope of the arrest
warrant to harass Samuel and failed to ensure that the Police
Department’s criminal history files were accurate; defendant
Otero organized service of the warrant knowing his plans exceeded
the scope of the warrant and lacked probable cause to seize
Samuel’s property, and included false information in his report;
defendants Tedeschi, Chauvin and Morande used excessive force
against Samuel; defendant Cicero threatened Samuel to obtain the
combination to the gun safe; defendant Salkeld withheld the fact
that Samuel had never been convicted of a felony; and defendants
Eisele and Massa failed to investigate the sexual assault
complaint.
To prevail on a claim for denial of procedural due process,
Samuel must show that he was deprived of a protected property

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interest by government action without being afforded adequate
process.

In considering procedural due process claims, the court

distinguishes between “claims based on established state
procedures” and those “based on random, unauthorized acts by
state employees.”

Hellenic Am. Neighborhood Action Comm. v. City

of New York, 101 F.3d 877, 880 (2d Cir. 1996).
As discussed above, all of the allegations relating to
exceeding the scope of the arrest warrant are barred by Heck v.
Humphrey.

The court cannot discern any basis for a procedural

due process violation regarding any of the remaining allegations.
In fact, the court cannot discern any cognizable federal claim
relating to the remaining allegations.
Samuel alleges that defendants Tedeschi, Chauvin and Morande
used excessive force against him.

The only evidence Samuel

presents to support his allegation that excessive force was used
against him is his affidavit.

The defendants, on the other hand,

have presented deposition testimony from Samuel’s daughter and
grandson who both state that they did not witness any excessive
force used against Samuel.

In addition, although Samuel alleges

that the force used caused him to be wheel-chair bound for two
years, when he sought medical assistance at the hospital for
chest pain the following day, he made no mention of any injuries
as a result of the arrest.

He was able to walk and jog without

difficulty when performing a stress test at the hospital.

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Several months later, correctional medical records show that
Samuel was able to walk without difficulty.

He only showed

difficulty when medical staff mentioned his ability to walk.
Merely verifying the allegations of the complaint in an
affidavit is insufficient to oppose a motion for summary
judgment.

See Zigmund v. Foster, 106 F. Supp. 2d 352, 356 (D.

Conn. 2000).

Absent any evidence to support his allegations that

excessive force was used, Samuel’s claim is not cognizable.
Samuel includes several allegations regarding the failure to
keep accurate criminal records, failure to report that he had not
previously been convicted of a felony, inclusion of false
information in the incident report.

All of these allegations

stem from Samuel’s assumption that the ERT would not have been
utilized if the defendants did not assume that he previously had
been convicted of a felony.

The evidence presented by the

defendants, however, shows that the ERT was utilized because
Samuel had a prior conviction for illegal discharge of a firearm.
Whether he was convicted of possession of a firearm, or whether
his prior conviction was for a felony or misdemeanor, is
irrelevant.

Clearly, to have discharged a firearm, Samuel had to

have had one in his possession at one time.

The prior illegal

discharge of a firearm was the source of the defendants
assessment that the arrest was high risk.

The court can discern

no harm suffered by Samuel as a result of these various alleged

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deficiencies.
Samuel also alleges that defendants Eisele and Massa failed
to investigate the sexual assault complaint.
to such an investigation.

Samuel has no right

Probable cause for an arrest exists

when the police receive information sufficient to warrant a
person of reasonable caution to believe that an offense has been
committed by the person to be arrested.

See Escalera v. Lunn,

361 F.3d 737, 743 (2d Cir. 2004). The police need not be certain
that the person arrested will be prosecuted successfully.
Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989).

See

Statements

of a victim and eye-witnesses to an alleged crime constitute
probable cause unless there are reasons to doubt the veracity of
such sources and probable cause is not vitiated because the
officer did not investigate the arrestee’s claim of innocence.
See Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006).
Indeed, once the officer has probable cause for an arrest, he is
neither required nor allowed to continue investigating.

See id.

at 398.
The evidence submitted by the defendants shows that they
received the report from the Department of Children and Families
and spoke to Samuel’s daughter.

The defendants were not required

to proceed further before seeking an arrest warrant.
All of these allegations fail to show that Samuel was
deprived of a protected liberty or property interest sufficient

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to warrant procedural due process protection.

Accordingly, all

of these procedural due process claims are dismissed.
4.

Tonya Martin and Zakwinton Martin

Samuel included Tonya Martin and Zakwinton Martin as
plaintiffs in this action.

Neither signed the complaint and,

when questioned during their depositions, stated that they were
not aware that they were included and did not want to pursue any
claims against the defendants.

Rule 11, Fed. R. Civ. P.,

requires that all unrepresented parties sign the complaint.
Because Tonya Martin and Zakwinton Martin did not sign the
complaint, they are not proper plaintiffs in this action.
Because Samuel is not an attorney, he can assert only his
own claims.

See Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.

1998) (a person appearing pro se must assert a claim personal to
him).

The defendants’ motion for summary judgment is granted as

to all claims asserted on behalf of Samuel’s family members.
5.

State Law Claims

Samuel’s first three claims are based on state law.

Where

no federal claims remain in a lawsuit, the district court may
decline to exercise supplemental jurisdiction and leave the state
law claims to be considered by the state courts.

See 28 U.S.C. §

1367(c)(3) (district court may decline to exercise supplemental
jurisdiction over state law claims where all federal claims have
been dismissed); Giordano v. City of New York, 274 F.3d 740, 754

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(2d Cir. 2001) (collecting cases).

As the court has granted

summary judgment in favor of the defendants on the federal
claims, it declines to exercise supplemental jurisdiction over
the state law claims.
III.

Conclusion
Samuel’s Motion for Summary Judgment [Doc. #63] is DENIED

without prejudice.

The defendant’s Motion for Summary Judgment

[Doc. #72] is GRANTED

as to all federal claims.

The court

declines to exercise supplemental jurisdiction over any state law
claims.

Samuel may pursue his state law claims in state court.

The Clerk is directed to enter judgment in favor of the
defendants and close this case.
SO ORDERED this 10th day of October, 2012 at Bridgeport,
Connecticut.
/s/
Warren W. Eginton
Senior United States District Judge

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