Muschette et al v. West Hartford et al

Filing 139

ORDER granting 120 Motion for Summary Judgment; granting in part and denying in part 130 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 11/15/17. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
AUDLEY MUSCHETTE and JUDITH
MUSCHETTE, on behalf of A.M.,
Plaintiffs,

:
:
:
:
v.
:
:
TOWN OF WEST HARTFORD,
:
AMERICAN SCHOOL FOR THE DEAF,
:
PAUL W. GIONFRIDDO,
:
CHRISTOPHER LYTH, CHRIS HAMMOND, :
and ELWIN ESPINOSA,
:
Defendants.

3:13-cv-01337-WWE

MEMORANDUM OF DECISION ON
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
In this action, plaintiffs allege on behalf of their then 12-year-old son (1) excessive force
against Officer Paul W. Gionfriddo, (2) municipal liability against the Town of West Hartford
for failure to adequately train its police officers, (3) violation of the Americans with Disabilities
Act and the Rehabilitation Act against the Town, (4) municipal liability against the Town for
failure to adequately supervise its officers, (5) negligence against the American School for the
Deaf, (6) negligent infliction of emotional distress against the School, (7) battery against Officer
Paul W. Gionfriddo, Officer Christopher Lyth, Chris Hammond, Elwin Espinoza, the Town, and
the School, (8) assault against Officer Paul W. Gionfriddo, Officer Christopher Lyth, Chris
Hammond, Elwin Espinoza, the Town, and the School, (9) intentional infliction of emotional
distress against Officer Paul W. Gionfriddo, Officer Chris Hammond, Elwin Espinoza, the
Town, and the School, (10) violation of the Americans with Disabilities Act and the
Rehabilitation Act against the School, (11) negligence against Officer Paul W. Gionfriddo, and
(12) negligence against the Town.

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Defendants have moved for summary judgment on all of plaintiffs’ claims. For the
following reasons, defendants’ motions will be granted in part and denied in part.
BACKGROUND
The following background was gleaned from the parties’ statements of fact, affidavits,
deposition transcripts, and other exhibits.
On April 30, 2013, plaintiff A.M. was a 12-year-old student at the American School for
the Deaf, located in West Hartford, Connecticut. On that date, Paul Gionfriddo and Christopher
Lyth were employed as police officers by the Town of West Hartford.
The American School for the Deaf serves deaf and hearing impaired persons. At all
relevant times, Christopher Hammond was employed by the School as a residential counselor.
Hammond is a deaf individual who communicates with other deaf persons by means of
American Sign Language.
Following a dispute between A.M. and staff at his school regarding an attempt to place a
takeout meal order, A.M. made a videophone call to his parents. Hammond unplugged the
videophone from the wall to end A.M.’s call causing A.M. to become angry. A.M. threw the
videophone remote against the wall and proceeded to wrap the videophone wires around his neck
with enough tension to cause his face to turn red. Hammond was able to succeed in loosening
and removing the wires from A.M.’s neck, but A.M. subsequently ran out of the dorm building
into a nearby, fenced-off, construction area.
The parties dispute the degree to which A.M. became violent toward Hammond and other
staff members as well as the extent to which A.M.’s actions were taken in self-defense, but A.M.
admits to hitting Hammond with a stick and throwing rocks that struck Hammond in several
places.

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A.M. picked up a larger rock, which caused staff members to back away. Dean Ron
Davis called 911. When the police arrived, Officer Gionfriddo spoke with School staff members
and Dean Davis.
Officers Gionfriddo and Lyth moved into the construction area with Davis and
Hammond. The officers relied on Davis and Hammond to act as interpreters between A.M. and
the officers. Gionfriddo gave instructions to Davis, who relayed them to Hammond, who in turn
signed the instructions to A.M. Defendants maintain that there was no doubt that A.M. was
aware of the presence of the police, but A.M. denies that he was aware of their presence and
denies receiving such instructions.
According to defendants, Officer Gionfriddo told Davis to tell Hammond (in sign
language) to tell A.M. (in sign language) to put down the rock. Defendants also contend but
plaintiffs deny that A.M. was warned that he would be shot with an electric gun if he refused to
relinquish the rock that he was holding. A.M maintains that he was never alerted to the
possibility that he would be shot with a Taser gun. Although Gionfriddo testified that he
believed that Hammond was accurately interpreting the commands being relayed by Davis, a
jury is not required to credit such testimony when A.M.’s testimony directly contradicts it.
Officer Gionfriddo shot A.M. in the back with his Taser gun, and electroshock was
administered for a period of 5 seconds. However, the two officers were unable to handcuff A.M.
at that time, so Gionfriddo administered a second round of electroshock. After the second Taser
deployment, the officers were able to handcuff A.M.
Paramedical personnel on the scene removed the Taser prongs and transported A.M. in an
ambulance to a hospital. A physical evaluation at the hospital revealed a Taser mark on A.M.’s
back, an abrasion to his chest, and a scratch to his right hand.

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At deposition, Officer Gionfriddo admitted that A.M. did not make any quick, adverse
moves before Gionfriddo fired the projectile prongs into A.M.’s back. Nor did A.M. threaten to
throw any rocks in Gionfriddo’s presence. Moreover, Gionfriddo testified that if A.M. were to
have made any quick moves, Goinfriddo was comfortable that he could disarm him by deploying
the Taser at that time.
Gionfriddo was on the scene for under three minutes before resorting to his Taser.
Plaintiffs maintain that A.M.’s “passive resistance” did not warrant the deployment of an
electric gun. The West Hartford Police Department’s own guidance order on the use of Taser
guns provides that the guns “may be used by trained West Hartford Police Officers to
temporarily incapacitate an actively resisting, combative or violent individual.” (emphasis
added).
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue as to
any material fact and it is clear that the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when reasonable minds could not
differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923
F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence of any material factual
issue genuinely in dispute. American International Group, Inc. v. London American
International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual
issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

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If a nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof, then summary judgment is appropriate.
Celotex Corp., 477 U.S. at 323. If the nonmoving party submits evidence which is "merely
colorable," legally sufficient opposition to the motion for summary judgment is not met.
Anderson, 477 U.S. at 249.
Excessive Force
All claims that law enforcement officers have used excessive force in the course of a
seizure should be analyzed under the Fourth Amendment and its reasonableness standard.
Graham v. Connor, 490 U.S. 386, 395 (1989).
“[T]he reasonableness inquiry in an excessive force case is an objective one: the question
is whether the officers' actions are objectively reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at 397. “The
reasonableness of a particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.
“Determining whether the force used to effect a particular seizure is reasonable under the
Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing governmental interests at
stake.” Id.
In arguing that summary judgment is appropriate for plaintiffs’ excessive force claim,
defendants present only the facts helpful to their cause, for example: (1) A.M. was armed with a
rock, (2) darkness was falling over unknown terrain, and (3) the Officers’ shift that evening was
very busy, so the government had an interest in arrest being completed efficiently and without
waste of limited resources. But for purposes of defendants’ motions for summary judgment, all

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permissible inferences and credibility questions must be resolved in the light most favorable to
plaintiffs.
“Summary judgment is inappropriate when the admissible materials in the record make it
arguable that the claim has merit, for the court in considering such a motion must disregard all
evidence favorable to the moving party that the jury is not required to believe.” Rogoz v. City of
Hartford, 796 F.3d 236, 246 (2d Cir. 2015).
The Fourth Amendment’s reasonableness test requires “careful attention to 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.” Graham 490 U.S. at 396.
Crediting plaintiffs’ version of events, it is arguable that plaintiffs’ excessive force claim
has merit. The crime at issue was assault and battery by a 12-year-old against his teachers. But
not all armed suspects are created equal. This was a deaf 12-year-old with a rock – not a hearing
adult with a gun. The immediate threat to the safety of the officers or others had subsided by the
time they approached A.M., who was then sitting in the construction area adjacent to his school.
A.M. did not raise the rock in his hands and made no motion to throw it. Nor did he make any
quick, adverse moves of any kind. Gionfriddo testified that if A.M. were to have made any such
quick moves, Goinfriddo was comfortable that he could disarm A.M. by deploying his Taser at
that time. A.M. was not actively resisting arrest or attempting to evade arrest by flight.
Moreover, plaintiffs submit that Gionfriddo deployed his Taser only minutes after
arriving at the School. Indeed, both officers were on scene as of 8:20:37 p.m., and A.M. was
reported in custody as of 8:23:13 p.m., less than three minutes later. Within that remarkably
short time span, A.M. denies that he was instructed in sign language that refusal to put down the

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rock would result in subjection by incapacitating electric shock. Indeed, A.M.’s testimony is
that he was not looking at Dean Davis when Davis allegedly communicated directions in sign
language.
Even according to Hammond, A.M. initially refused to make eye contact during
Hammond’s efforts to communicate, which would be necessary to the receipt of sign language.
Although Hammond contends that he was “finally” able to make eye contact with A.M., the jury
is not required to believe such evidence. At this stage, the inferences and credibility questions
must be resolved in plaintiffs’ favor. Disregarding all the evidence favorable to the moving
party, plaintiffs present the following scenario:
After an outburst of violence, A.M., a deaf 12-year-old, retreated to an isolated
place in the construction area adjacent to his school where he sat as darkness
advanced. A.M. was not aware that the police had arrived just a few minutes earlier,
let alone that he would be shot from behind with projectiles which deliver
incapacitating electric shock if he failed to heed warnings – warnings which A.M.
testified were never communicated to him. A.M. posed no immediate threat to
anyone, and he was not actively resisting arrest. He was not aware that an arrest
had been attempted.
Under these circumstances, a reasonable jury could find in plaintiffs’ favor that defendants’ use
of force was unreasonable.
Qualified Immunity
“[W]hen a defendant official invokes qualified immunity as a defense in order to support
a motion for summary judgment, a court must consider two questions: (1) whether the
evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory
or constitutional right, and (2) whether that right was clearly established at the time of the
alleged violation.” Rogoz, 796 F.3d at 247.

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Defendants argue that even if plaintiffs’ evidence makes out a violation of a
constitutional right (it does), there was no such precedent at the time that would have provided
Officer Gionfriddo with fair warning that his use of the Taser under the instant circumstances
would violate the Fourth Amendment. But the Second Circuit has cautioned against narrowing
the scope of clearly established rights in excessive force cases:
It has become commonplace for defendants in excessive force cases to support their
claims to qualified immunity by pointing to the absence of prior case law
concerning the precise weapon, method, or technology employed by the police. See,
e.g., Nelson v. City of Davis, 685 F.3d 867, 884 (9th Cir.2012) (considering the use
of “pepperball projectiles”). As the Supreme Court has made clear, however, it is
not necessary to find a “case directly on point” in order to show that the law
governing a plaintiff's claim is clearly established. al–Kidd, 131 S.Ct. at 2083.
Some measure of abstraction and common sense is required with respect to police
methods and weapons in light of rapid innovation in hardware and tactics.
Terebesi v. Terreso, 764 F.3d 217, 237 n. 20 (2d Cir. 2014).
Gionfriddo’s own testimony contradicts defendants’ position that A.M. posed an
immediate threat to the safety of the officers or others. And the parties agree that A.M. was not
actively resisting or attempting to evade arrest by flight. The painful and traumatizing intrusion
on an unsuspecting deaf 12-year-old child is not adequately supported by the countervailing
governmental interest in expediency, even if “the shift that evening was very busy.” Such an
argument for efficiency might slightly tip the balance if the engagement with A.M. had become a
drawn-out affair. But a jury could infer from the quick action in this case, despite the lack of
active threat or resistance by the suspect, that the police unreasonably prioritized haste at the
expense of A.M.’s Fourth Amendment rights.
From A.M.’s perspective, he was seated, putting up no resistance, when shot from behind
and shocked twice by a Taser gun, without any warning. If a jury credits plaintiffs’ version of
events, it may be that (under those circumstances) officers of reasonable competence would

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agree that use of the Taser was unlawful. Indeed, Gionfriddo’s use of the Taser could be found
to run contrary to The West Hartford Police Department’s own guidance order on the use of
Taser guns. Depending on disputed facts, a reasonable officer on the scene may have understood
that immediate use of an electric gun was far more force than necessary and would violate
A.M.’s constitutional rights under the Fourth Amendment. See Crowell v. Kirkpatrick, 400 Fed.
Appx. 592, 595 (2d Cir. 2010) (summary order) (“[W]e do not suggest that the use of a taser to
effect an arrest is always, or even often, objectively reasonable . . .”).
Defendants place significant weight on the proposition that Gionfriddo believed
Hammond was accurately interpreting and communicating his commands to A.M., but even if
the jury credits Gionfriddo’s testimony, it does not significantly change the analysis of the
factors listed in Graham, namely: 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. Moreover, the jury need not believe Gionfriddo’s
testimony. The jury may instead credit plaintiffs’ evidence that he received no commands, and
the jury may find that it was unreasonable for defendants to have presumed otherwise. Or the
jury may credit Gionfriddo’s testimony regarding his belief, but may nevertheless find that
considering the age of the suspect and the communication barriers at issue, reasonable officers
would have waited more than a minute or two before resorting to significant and potentially
unnecessary application of force.
Under these circumstances, taken in the light most favorable to plaintiffs, genuine issues
of material fact exist as to whether Gionfriddo is entitled to qualified immunity. See Soto v.
Gaudett, 862 F.3d 148, 159-61 (2d Cir. 2017) (holding that entitlement to qualified immunity is
not immediately appealable where evidence was sufficient to create triable issues of genuinely

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disputed material fact as to defendants’ entitlement to qualified immunity). Depending on the
resolution of disputed facts, Gionfriddo’s use of his Taser under the instant circumstances may
have been in violation of A.M.’s clearly established constitutional rights.
Ultimately, Gionfriddo’s entitlement to immunity depends on factual disputes that will
hinge on credibility determinations, which must be made by a jury. The evidence presented at
trial and the findings of the jury may necessitate a ruling that qualified immunity shall apply.
But at this stage, viewed in the light most favorable to the plaintiffs, the evidence is sufficient to
create triable issues. Defendants have not demonstrated entitlement to qualified immunity, and
summary judgment on plaintiffs’ excessive force claim will be denied.
Municipal Liability
Defendants argue that no failure to train or supervise may be found without an underlying
constitutional deprivation, but this argument fails in light of the survival of the excessive force
claim discussed above.
Defendants also argue that plaintiffs have not demonstrated any evidence of deficiency of
training or supervision, as required for claims of municipal liability. See Amnesty America v.
Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004). Generally, a pattern of misconduct is
required to establish municipal liability, and “[t]he plaintiff must offer evidence to support the
conclusion that the training program was inadequate, not that 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-On-Hudson Police Dept., 577 F.3d 415, 440-41 (2d
Cir. 2009). “Only where a municipality's failure to train its employees in a relevant respect
evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be

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properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton,
Ohio v. Harris, 489 U.S. 378, 389 (1989).
Plaintiffs have failed to respond to this argument or to present evidence of deliberate
indifference by policymaking officials. Accordingly, the court finds that plaintiffs have
abandoned their municipal liability claims, and summary judgment will be granted in
defendants’ favor on these claims.
ADA and Rehabilitation Act
Defendants argue that summary judgment should be granted on plaintiffs’ ADA and
Rehabilitation Act claims, as neither statutory framework applies to “on-street” arrest encounters
such as this one.
Plaintiffs respond that its ADA and Rehabilitation Act claims stem from (1) the Town’s
failure to properly train police officers for encounters with the deaf population; (2) the Town’s
failure to ensure effective, unbiased communication with A.M. during the April 30, 2013,
encounter. Plaintiffs submit that A.M. had a right to a neutral, qualified interpreter, and that he
was not reasonably accommodated.
As discussed above, plaintiffs have not responded or demonstrated evidence as to
deficiency of training or supervision. Moreover, under the instant circumstances, no reasonable
jury could find that the Town should have been required to obtain a “neutral” interpreter rather
than retain the translation services of the American School for the Deaf.
“Whether a disabled individual succeeds in proving discrimination under Title II of the
ADA will depend on whether the officers' accommodations were reasonable under the
circumstances.” Williams v. City of New York, 121 F. Supp. 3d 354, 368 (S.D.N.Y.). Here, the
officers’ accommodations (the School’s interpreters) were reasonable under the circumstances.

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Similarly, no intentional discrimination may be reasonably inferred where police officers rely
upon teachers of deaf students to communicate with their students. See Loeffler v. Staten Island
University Hosp., 582 F.3d 268, 274-77 (2d Cir. 2009) (holding that the standard for intentional
violations of the Rehabilitation Act is deliberate indifference to the strong likelihood that a
violation of federally protected rights will result from implementation of the challenged policy).
No rational jury could find that that the Town acted with deliberate indifference in failing to
secure additional, third-party interpreters in responding to a call at a school for the deaf, where
interpreters were already on scene. See id at 275. Accordingly, summary judgment will be
granted on plaintiffs’ ADA and Rehabilitation Act claims.
Assault, Battery, Intentional Infliction of Emotional Distress
Plaintiffs withdraw their intentional tort claims against the Town of West Hartford.
Defendants argue that a police officer is not liable for assault and battery based upon the
officer’s lawful arrest of a person, where there was no use of excessive force. See Crowell v.
Kirkpatrick, 667 F. Supp. 2d 391, 417 (2d Cir. 2009). Similarly, defendants contend that if their
use of force in this case was objectively reasonable, then their conduct cannot have been
“extreme and outrageous,” as the intentional infliction of emotional distress claim requires. See
Petyan v. Ellis, 200 Conn. 243, 254 (1986). But, as discussed above, whether Gionfriddo’s
actions amounted to excessive force is a decision for the jury.
Summary judgment will be denied as to plaintiffs’ assault, battery, and intentional
infliction of emotional distress claims against Gionfriddo. However, plaintiffs have not
presented sufficient argument or evidence of assault, battery, and intentional infliction of
emotional distress claims against any other individual defendants. Accordingly, the court
considers those claims abandoned, and summary judgment will be granted as to those claims.

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Negligence
Defendants argue that plaintiffs’ negligence claims are barred by the doctrine of
governmental immunity for discretionary acts. See Edgerton v. Town of Clinton, 311 Conn.
217, 230 (2014). Plaintiffs respond that such immunity is subject to the “identifiable personimminent harm exception” whereby the circumstances make it apparent to the public officer that
his or her action would subject an identifiable person to imminent harm. See id at 230-31.
Genuinely disputed issues of material fact preclude summary judgment on whether the imminent
harm exception should apply in this case. Accordingly, summary judgment as to plaintiffs’
negligence claims against Gionfriddo and the Town will be denied.
Claims against the American School for the Deaf and its Employees: Chris
Hammond and Elwin Espinosa
Plaintiffs withdraw their claims against Elwin Espinosa.
All of plaintiffs’ claims against the American School for the Deaf and Hammond stem
from allegations that A.M. was discriminated against based on his Attention Deficit
Hyperactivity Disorder by “not being provided a safe environment.” But defendants contend,
and the court agrees, that plaintiffs’ written response cites no factual support beyond their
conclusory claims that the School failed to provide A.M. “the benefit of a safe educational
environment afforded to students without Attention Deficit Hyperactivity Disorder.”
Accordingly, summary judgment will be granted on plaintiffs’ claims of negligence,
negligent infliction of emotional distress, and violations of the ADA and Rehabilitation Act
against the School; as well as on plaintiffs’ claims of battery, assault, and intentional infliction of
emotional distress against Hammond and the School.

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CONCLUSION
For the foregoing reasons, defendants’ motions for summary judgment will be
GRANTED in part and DENIED in part.
Summary judgment is DENIED as to plaintiffs’ claims of excessive force, assault,
battery, intentional infliction of emotional distress, and negligence against Officer Paul W.
Gionfriddo; and as to plaintiffs’ claim of negligence against the Town of West Hartford.
Summary judgment is GRANTED as to the balance of plaintiffs’ claims.
Dated this 15th day of November, 2017, at Bridgeport, Connecticut.

/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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