Greene v. Norwalk et al
ORDER granting in part and denying in part 78 Motion for Summary Judgment; granting 79 Motion for Summary Judgment. See attached for memorandum of decision. The Clerk is directed to terminate Defendant City of Norwalk as a party to this action. Signed by Judge Vanessa L. Bryant on 3/21/2017. (Hoffman, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THE CITY OF NORWALK, et al.,
March 21, 2016
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT OFFICERS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 78]
AND GRANTING THE CITY OF NORWALK’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 79]
Plaintiff Cody Greene brings this action against the City of Norwalk
(“Norwalk”), and Officers Steven Luciano, Felipe Taborda, Adam Mulkern, and
Julio Rodriguez (collectively, the “Defendant Officers”). He alleges, inter alia, that
the Defendant Officers used excessive force under color of law, in violation of the
United States Constitution. [Dkt. No. 51]. Defendants moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56. [Dkt. Nos. 78, 79]. For
the reasons that follow, the Defendant Officers’ Motion for Summary Judgment
[Dkt. No. 78] is GRANTED-IN-PART and DENIED-IN-PART, and the City Of
Norwalk’s Motion for Summary Judgment [Dkt. No. 79] is GRANTED.
A. Norwalk Police Department Street Team
The Defendant Officers were assigned to the Norwalk Police Department,
Special Services Unit Street Team (the “Street Team”). [Dkt. No. 78-5 at 38-39].
The Street Team was tasked with investigating street level narcotics and gang
activities and arresting suspected perpetrators. The Street Team specifically
targeted those areas where [they have] had violence, drug dealing, gang activity,
et cetera. [Dkt. No. 97-2, Kulhawik Dep., at 32]. Street Team members employed
“self-initiated stops” rather than answering dispatch radio calls. [Dkt. No. 78-5 at
65]. Officer Tabora described the Street Team as a “pro-active” unit, and stated
that they would patrol areas of the city where there was “an open drug trade or
high crime area . . . where there has been gang activity, stabbings or shootings,
areas where large fights occur through these . . . rival gangs.” [Dkt. No. 78-6 at
37]. If a Street Team officer saw something suspicious taking place, he would
“initiate the action, speak with the person.” [Dkt. No. 78-5 at 65].
Defendant Norwalk maintains that the Norwalk Police Department provided
extensive training to all of its officers beyond that mandated by the State of
Connecticut. [Dkt. No. 82]. The officers received training in use of force,
shooting decisions, taser usage and arrest, and control/officer safety, although
Plaintiff maintains that this training was inadequate. [Id.; Dkt. No. 97-1 at 20]. The
Norwalk Police Department is an accredited law enforcement agency that has
been certified by the Commission on Accreditation for Law Enforcement
Agencies (“CALEA”) since 1995. [Dkt. No. 81-13]. In March 2012, the Norwalk
Police Department received the “Certificate of Advanced Meritorious
Accreditation” from CALEA. Id.
The Norwalk Police Department’s internal personnel tracking system
suggests that none of the Defendant Officers had, at the time of the Cody Greene
incident, any complaints registered against them. [Dkt. No. 80-2]. Plaintiff
challenges the reliability of this tracking system, arguing that a 2011 report
indicated that Officer Luciano had accounted for five percent of all instances of
uses of force by the entire department. [Dkt. No. 97-2, 2011 Use of Force
Analysis]. The same report stated that “the Special Services Street Team . . . was
tasked with high visibility enforcement in known high incident locations. The unit
made over 150 arrests and therefore came in contact with a much larger number
of individuals than most other officers.” Id. It also explained that “[a]s a result of
these additional arrests and encounters with potentially violent offenders, a
higher than average use of force would be expected.” Id. In 2011, members of
the Street Team reported four to five times more instances of uses of force
compared to most other officers. Id. Plaintiff offers no additional facts to support
his skepticism of the tracking system’s reliability.
Plaintiff faults the City of Norwalk for failing to offer Street Team members
additional training to handle these encounters. [Dkt. No. 87-1 at 25 (citing Dkt.
No. 82)]. He argues that by design, Street Team members faced heightened
dangers, and that the Norwalk Police Department failed to train members of the
Street Team to deal with these heightened dangers. Plaintiff singles out training
on Terry stops in particular, arguing that the Norwalk police department
dedicated only three power point slides to the issue during a training that was not
specifically tailored for Street Team members. [Dkt. No. 97-2, Exh. 24]. Plaintiff
offers no evidence that the general training received by officers together with the
training criticized is inadequate.
B. Plaintiff’s Arrest
At approximately 8:30 p.m. on July 18, 2012, Plaintiff went to visit a friend
who lived at 16 School Street in Norwalk, Connecticut. [Dkt. No. 51 ¶ 14]. Plaintiff
parked on the street and walked up to the building. [Dkt. No. 97-2, Greene Dep.,
at 29]. As he was knocking on a door, an unmarked black Ford Expedition with
tinted windows pulled up a driveway and four males dressed in black got out of
the vehicle. [Id.; Dkt. No. 78-5 at 67]. Defendants dispute this sequence of
events, arguing that Mr. Greene began walking quickly toward the apartment
building after he saw the car, and tucked something into his waistband. [Dkt. No.
78-5 at 69]. The Plaintiff maintains that the Defendants could not have seen this
because they were behind him when he purportedly tucked something into his
waistband. [Dkt. No. 96-1 ¶ 30; Dkt. No. 96-2, Mulkern Dep., at 69-70; Dkt. No. 962, Luciano Dep., at 35; Dkt. No. 96-2, Taborda Dep., at 42].
The parties also dispute whether the Defendant Officers’ clothing had any
markings identifying them as law enforcement officers. [Dkt. 96-1 at 5]. Plaintiff
has submitted evidence that the four officers were dressed in all black and that
there were no markings on their clothing to indicate that they were police officers.
[Dkt. No. 97-2, Greene Dep., at 31-32, 63; Dkt. No. 97-2, Martinez Dep., at 16, 18;
Dkt. No. 97-2, Rodriguez Dep., at 7-8].
When the four men got out of the car, Officer Luciano stayed by the car,
and the three other Defendant Officers walked up to the Plaintiff. [Dkt. No. 96-2,
Greene Dep., at 33, 37, 77-78]. Officer Mulkern asked the Plaintiff what he was
doing at the apartment and who he was there to see. [Dkt. No. 78-4 at 30; Dkt. No.
96-2, Taborda Dep., at 47; Dkt. No. 96-2, Rodriguez Dep., at 48]. Plaintiff
responded that he was there to see his “cousin,” who Plaintiff stated in his
deposition was Jerrod Smith, a close friend that he referred to as a cousin, but to
whom Plaintiff was not related. [Dkt. No. 78-4 at 31]. Plaintiff claims he then
pointed to Mr. Smith and stated, “That’s my cousin right there.” [Id. at 31].
Plaintiff then stated, “My dad is a State Trooper.” [Id. at 89]. Plaintiff testified that
when questioned by the four men, he was unaware that they were police officers,
and that the officers never identified themselves as police officers. [Dkt. No. 80-8
at 84-85]. He further testified that the four men were dressed all in black, and that
their clothing had no markings identifying the men as police officers. [Dkt. No.
96-2, Greene Dep., at 31]. A photograph taken of Officer Mulkern later that night
showed him wearing a tee shirt which did not have police insignia on the front.
[Dkt. No. 78-9]. Plaintiff also testified that he saw that the men were wearing
belts, but did not notice that the men were wearing guns or weapons on their
belts. [Dkt. No. 97-2, Greene Dep., at 63; Dkt. No. 80-8 at 35]. Plaintiff testified
that none of the officers asked him what he had in his waistband, and none asked
to pat him down. [Dkt. No. 80-8 at 89].
Plaintiff then maintains that the four individuals began speaking with each
other, and that he heard someone say something like, “get him” or “grab him”
and then one of the men—a white male—grabbed his upper right arm and tried to
pull him off of his cousin’s stoop. Id. at 32, 92-93. Plaintiff claims that the
individual did not say anything to him when he grabbed his arm, and did not ask
him whether he had anything in his waistband. Id. at 32, 89, 93. Officer Mulkern
maintains that he told the Plaintiff that he was going to pat him down to look for
drugs or weapons, and he testified that he believed Mr. Greene was carrying a
weapon. [Dkt. No. 78-5 at 14; Dkt. No. 81-12 at 95]. Officer Mulkern also testified
that he grabbed the back of Plaintiff’s shirt after he started to run, ripping a
“square” piece of fabric from the back, but that he never grabbed the Plaintiff’s
arm. [Dkt. No. 96-2, Mulkern Dep., at 91].
Officer Mulkern cut his leg on a fence or railing immediately after the
Plaintiff began to flee from the Defendant Officers. [Dkt. No. 78-5 at 91]. The
parties dispute whether the Defendant was injured while holding onto the Plaintiff
or whether he tripped after the Plaintiff escaped his grasp. [Dkt. No. 96-1 ¶ 59]. A
photograph of Officer Mulkern at the Norwalk hospital appears to show this
injury, and also depicts body armor with “POLICE” written on it, on the floor
beside his bed. [Dkt. No. 80-9]. No evidence indicates whether this vest
belonged to Officer Mulkern, or whether he or any other officer wore it during the
pursuit. In the photograph, Officer Mulkern is wearing a black t-shirt with an
Under Armour logo on the chest. Id. No yellow police lettering or yellow badge is
visible on the front of the t-shirt. Id.
Plaintiff then ran from the individuals, describing his route as running up
the driveway, left onto School Street, down School Street towards Main Street,
“across Main Street through a parking lot, up a driveway, and . . . over a fence
down to the ground below going towards Main Street.” Id. at 35, 93. He denied
that anyone shouted at him to stop or identified themselves as police officers
during the pursuit. [Dkt. No. 78-4 at 94-95]. Police reports indicate that a woman
named Sonia Suarez later located on the ground near her home a bag containing
28 smaller bags of a green leafy substance later determined to be marijuana, but
these reports do not state that Ms. Suarez saw the Plaintiff in possession of or
discarding the bag. [Dkt. Nos. 81-1, 81-8]. The Plaintiff denies ever having
possessed this marijuana, or disposing of it during the pursuit. [Dkt. No. 96-2,
Greene Dep., at 64-65].
All four Defendant Officers chased the Plaintiff. [Dkt. No. 96-2, Rodriguez
Dep. at 63]. Officer Rodriguez removed his Taser from his duty belt, and Officer
Mulkern drew his gun during the pursuit. [Dkt. No. 96-2, Rodriguez Dep., at 64-65;
Dkt. No. 96-2, Mulkern Dep., at 97, 104]. Plaintiff landed on his feet in mulch after
climbing over the fence. [Dkt. No. 78-4 at 37, 104; Dkt. No. 96-2, Rodriguez Dep.,
at 63]. A taco truck was located approximately fifteen feet away from the fence.
[Dkt. No. 96-2, A. Martinez Dep., at 20]. An eyewitness waiting in line at the truck,
Oviedo Lagos, confirmed that he saw the Plaintiff land on his feet, apparently
uninjured. [Dkt. 96-2, Lagos Dep., at 15].
After Plaintiff climbed over the fence, his left leg started to “go numb . . .
kind of a spasm feeling.” [Dkt. No. 80-8 at 38]. Mr. Lagos testified that the
Plaintiff was tased, and that he saw the Plaintiff’s body lock up. [Dkt. No. 96-2,
Lagos Dep., at 15-16]. The parties agree that Officer Rodriguez discharged his
Taser and that one of the Taser darts hit the Plaintiff, but they do not agree on
where Officer Rodriguez was standing when this happened. [Dkt. No. 96-1 ¶¶ 101,
After he was tased, Plaintiff looked toward the fence and saw a white man
dressed in all black standing on the other side of the fence, pointing a weapon at
him. [Dkt. No. 80-8 at 38-39]. Officer Mulkern confirmed in his deposition that he
pointed his gun at the Plaintiff after the Plaintiff went over the fence. [Dkt. No. 962, Mulkern Dep., at 97, 104]. Plaintiff states that after he saw the weapon, he got
down on his knees and laid on his stomach. [Dkt. No. 80-8 at 38]. Plaintiff did not
remember seeing any other individuals dressed in black after his leg went numb.
[Dkt. No. 80-8 at 40]. Mr. Lagos testified that it looked like the Plaintiff
“collapsed,” face forward with his arms in front of him, onto the grass. [Dkt. No.
96-2, Lagos Dep., at 16]. By contrast, Defendants maintain that the Plaintiff only
landed on the ground after Officer Luciano tackled the Plaintiff, colliding with him
as he continued to run. [Dkt. No. 78-7 at 72; Dkt. No. 78-8 at 59]. Officer Luciano
believed that the Plaintiff had already been tased when he tackled the Plaintiff.
[Dkt. No. 96-2, Luciano Dep., at 68-69]. Plaintiff testified that he did not remember
anything from between the time he got down on his stomach until he woke up in
the hospital. [Dkt. No. 80-8 at 40].
A second eyewitness, Alex Martinez, said that he saw the Plaintiff laying
down on grass near the fence, and that he saw one officer approach the Plaintiff
from behind and a second from the side. [Dkt. No. 96-2, A. Martinez Dep. at 20,
23]. Mr. Lagos testified that two more officers approached the Plaintiff shortly
afterward. [Dkt. No. 96-2, Lagos Dep., at 11]. Mr. Lagos further testified that while
the Plaintiff was laying immobile on his stomach, an officer walked over to him,
turned him onto his back, put both knees on the Plaintiff’s shoulders, and started
“punching his face in” using both his fists and elbows. [Dkt. No. 96-2, Lagos
Dep., at 17-18, 49; see also Dkt. No. 96-2, A. Martinez Dep., at 31]. Officer Luciano
admitted to striking the Plaintiff with a closed fist, but described the hits as
resulting from a “struggle” with the Plaintiff. [Dkt. No. 96-2, Luciano Dep., at 62].
Mr. Lagos also saw that the Plaintiff was bleeding from his face. [Dkt. No. 96-2,
Lagos Dep., at 17-18]. Bystanders yelled at the officers to stop hitting the
Plaintiff. Id. at 17. In response, Officer Mulkern may have pulled up his pants leg
to show them the cut on his leg, stating, “You think this guy’s good?” and “Look
what he did to me.” [Dkt. No. 96-2, Lagos Dep., at 17-18]. Plaintiff’s mother took a
photograph of the scene of the arrest the day after it took place. [Dkt. No. 96-2, S.
Greene Aff., ¶ 5]. The photograph depicts a copious amount of blood staining the
curb next to a grassy area. Id.
After Officer Luciano hit the Plaintiff, he turned the Plaintiff back onto his
stomach and Officers Luciano and Taborda handcuffed him. [Dkt. No. 78-2 at 82;
Dkt. No. 96-2, A. Martinez Dep., at 31]. The exact location of Officer Rodriguez
while Officer Luciano was hitting the Plaintiff is unclear from the record. The
Plaintiff and Officer Luciano were visible to all of the remaining Defendants
during the time the Plaintiff was on the ground. [Dkt. No. 96-2, Mulkern Dep., at
104; Dkt. No. 96-2, Rodriguez Dep., at 73; Dkt. No. 96-2, Luciano Dep., at 61; Dkt.
No. 96-2, Taborda Dep., at 84]. The parties dispute whether or how much the
Plaintiff resisted once he was handcuffed. Defendants claim, and Plaintiff denies,
that when Officer Luciano tried to place Greene into custody, Plaintiff was
combative and struggled with him. [Dkt. No. 81-11 at 120-21; Dkt. No. 81-10 at 73;
Dkt. No. 81-9 at 84; Dkt. No. 97-1 at 16]. Officer Luciano never saw a weapon and
never found a weapon in Plaintiff’s possession or in the vicinity. [Dkt. No. 96-2,
Luciano Dep., at 51-53].
A Norwalk Hospital ambulance responded to the scene using lights and
sirens, arriving at approximately 8:53 pm. [Dkt. No. 80-6]. Greene was prone on
the ground with his hands cuffed behind his back upon the ambulance’s arrival.
Id. An ambulance report documents that Greene was in an “agitated state.”
Greene was handcuffed to his stretcher in the ambulance, which Defendants
attribute to Greene’s “combative” behavior. [Id.; Dkt. No. 79-2 at 8]. While the
ambulance report described Greene as “agitated, combative, kicking and
spitting,” physician notes used “combative” as part of a description of Plaintiff’s
diminished brain function following a traumatic brain injury. [Dkt. No. 78-16; Dkt.
No. 96-2, Marc L. Rosen Consultation Report, at 26-27]. Mr. Lagos testified that it
that when Greene was being placed in the ambulance, he was “screaming that he
was in pain and his face and arm really hurt.” [Dkt. No. 96-2, Lagos Dep., at 21].
Ambulance personnel were interviewed as part of the Internal Affairs
investigation into the matter. [Dkt. No. 81-2]. One of the EMTs, Beatrice Grant,
described Greene as “agitated” during the drive to the Hospital. Id.
At the hospital, a doctor signed an order authorizing the Plaintiff’s physical
restraint. [Dkt. No. 80-4]. Hospital records reflect that Greene remained agitated
once in the Emergency Room. [Dkt. No. 80-5]. An admission note stated that the
Plaintiff exhibited “inappropriate/incomprehensible speech” and “moments of
aggressive fighting of all 4 ext. restraints [followed] by episodes of
unresponsiveness.” Id. Hospital notes further state that the Plaintiff suffered
traumatic brain injury, orbital, maxillary, and mandibular fractures, as well as
nasal and septal fractures. Id. Photographs of the Plaintiff’s face on July 20,
2012 show one of the Plaintiff’s eyes swollen shut, stitches up the side of his
nose, along with dried blood. [Dkt. No. 96-2, Exh. 17]. Plaintiff also underwent
drug testing upon admission to the hospital, which showed that “serum ethanol,
salicylate, and Tylenol or acetaminophen levels were all below detectable limits,
and that urine toxicology is completely negative . . . for benzodiazepines,
cocaine, opiates, cannabis, amphetamines, barbiturates and PCPs.” Id.
“A party may move for summary judgment, identifying each claim or
defense—or the part of each claim or defense—on which summary judgment is
sought. The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the record the reasons for
granting or denying the motion.” Fed. R. Civ. P. 56(a). In order to prevail, the
moving party must sustain the burden of proving that no factual issues exist.
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining
whether that burden has been met, the court is required to resolve all ambiguities
and credit all factual inferences that could be drawn in favor of the party against
whom summary judgment is sought. Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)). “If there is any evidence in the record that could reasonably
support a jury’s verdict for the nonmoving party, summary judgment must be
denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446
F.3d 313, 315-16 (2d Cir. 2006) (quotation omitted). In addition, “the court should
not weigh evidence or assess the credibility of witnesses” on a motion for
summary judgment, as “these determinations are within the sole province of the
jury.” Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment ‘cannot defeat the motion by relying
on the allegations in [her] pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.’ At the
summary judgment stage of the proceeding, [p]laintiffs are required to present
admissible evidence in support of their allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.
3:03-cv-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (quoting Gottlieb v.
County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). “Summary judgment cannot
be defeated by the presentation . . . of but a ‘scintilla of evidence’ supporting [a]
claim.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir.
2010) (quoting Anderson, 477 U.S. at 251).
A court must make the threshold determination of whether there is the
need for a trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250.
Judges are not required “to submit a question to a jury merely because some
evidence has been introduced by the party having the burden of proof, unless the
evidence be of such a character that it would warrant the jury in finding a verdict
in favor of that party. Formerly it was held that if there was what is called a
scintilla of evidence in support of a case the judge was bound to leave it to the
jury, but recent decisions of high authority have established a more reasonable
rule, that in every case, before the evidence is left to the jury, there is a
preliminary question for the judge, not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed to find a verdict
for the party producing it, upon whom the onus of proof is imposed.” Anderson,
477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448 (1872))
(citing Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343 (1933); Coughran v.
Bigelow, 164 U.S. 301, 307 (1896); Pleasants v. Fant, 22 Wall. 116, 120–121 (1875)).
Indeed, summary judgment should be granted where the evidence is such that it
“would require a directed verdict for the moving party.” Sartor v. Arkansas Gas
Corp., 321 U.S. 620, 624 (1944).
“A party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). A party may also support their assertion by “showing that
the materials cited do not establish the absence . . . of a genuine dispute.” Id.
Cited documents must consist of either “(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.” Local R. Civ. P. 56(a)3; see also Fed. R. Civ. P. 56(c)(4).1
The Court need not consider any materials that the parties have failed to
cite, but may in its discretion consider other materials in the record. Fed. R. Civ.
P. 56(c)(3). If a party fails to properly support an assertion of fact, or fails to
properly address another party’s assertion of fact, the Court may grant summary
judgment on the basis of the undisputed facts. D. Conn. Local R. 56(a)3 (stating
that “failure to provide specific citations to evidence in the record as required by
this Local Rule may result in the Court deeming certain facts that are supported
by the evidence admitted in accordance with [Local] Rule 56(a)1 or in the Court
imposing sanctions, including . . . an order granting the motion if the undisputed
facts show that the movant is entitled to judgment as a matter of law”).
Plaintiff has brought claims against the Defendant Officers pursuant to 42
U.S.C. § 1983 for violations of his fourth amendment, arguing that he was
subjected to an unlawful stop and excessive force in his arrest. He has also
brought state common law claims against the Defendant Officers for malicious
abuse of process, assault and battery, and intentional infliction of emotional
distress. He has brought claims against the City of Norwalk under section 1983
and for negligence.
Plaintiff asks the Court not to consider two exhibits that it argues lack the
indicia of reliability necessary to authenticate them. [Dkt. No. 96 at 17-21]. These
documents only serve to reinforce the existence of factual disputes among the
parties. Their inclusion or exclusion from the record therefore does not affect the
Court’s decision at summary judgment.
A. Claims Against the Defendant Officers
1. Section 1983
Section 1983 provides that “any person who, acting under color of law,
‘subjects or causes to be subjected, any Citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and the laws’ of the United States shall
be liable to the injured party in actions at law.” Shattuck v. Stratford, 233 F. Supp.
2d 301, 306 (D. Conn. 2002) (quoting 42 U.S.C. § 1983). Plaintiff has alleged
violations of his rights under the Fourth Amendment under two theories: (1) the
Defendant Officers initiated a Terry stop without reasonable suspicion; and (2)
the Defendant Officers used excessive force in effecting his arrest. Plaintiff also
asserts a conspiracy claim, and argues that the Defendant Officers are not
entitled to qualified immunity.
a. Terry Stop
Myriad material issues of fact prevent the Court from finding that the
Defendant Officers’ stop was consistent with the Fourth Amendment. The Fourth
Amendment “prohibits unreasonable searches and seizures by the Government,
and its protections extend to brief investigatory stops of persons or vehicles that
fall short of traditional arrest.” U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (citing
Terry v. Ohio, 392 U.S. 1, 9 (1968)). In Terry v. Ohio, the Supreme Court
recognized that police officers may in “appropriate circumstances and in an
appropriate manner approach a person for purposes of investigating possibly
criminal behavior even though there is no probable cause to make an arrest.”
Terry v. Ohio, 392 U.S. 1, 22 (1968). To justify a Terry stop, the officer must have
“a reasonable basis to think that the person to be detained ‘is committing or has
committed a criminal offense.’” United States v. Bailey, 743 F.3d 322, 332 (2d Cir.
2014) (quoting Arizona v. Johnson, 555 U.S. 323, 326 (2009)).
“A valid Terry stop must be ‘justified at its inception.’” United States v.
Lopez, 321 F. App’x 65, 67 (2d Cir. 2009) (quoting Terry, 392 U.S. at 20). There
must be a “particularized and objective basis” for suspicion of legal wrongdoing
under the “totality of the circumstances.” Lopez, 321 F. App’x at 67 (quoting
Arvizu, 534 U.S. at 273). “The standard for determining whether a particular stop
was justified by reasonable suspicion is an objective one, not dependent on the
intentions or motivations of the particular detaining officers.” United States v.
Glover, 957 F.2d 1004, 1010 (2d Cir. 1992) (citations omitted).
Here, the Defendant Officers suggest that they believed stopping the
Plaintiff was justified, because he was in a residential neighborhood known to
feature drug sales, he gazed over his shoulder at their unmarked police vehicle,
he adjusted something at his waistband, and he began walking faster. [Dkt. No.
78-5 at 69]. Plaintiff denies noticing the officers’ sports utility vehicle until after
he had already reached the apartment building, he denies recognizing this vehicle
as being a police vehicle, he denies recognizing any of the officers as police
officers, he denies reaching for anything at his waistband, and he questions how
the Defendant Officers could have seen him reach toward his waistband while he
faced away from them. [Dkt. No. 96-1 ¶ 30; Dkt. No. 96-2, Mulkern Dep., at 69-70;
Dkt. No. 96-2, Luciano Dep., at 35; Dkt. No. 96-2, Taborda Dep., at 42].
None of the officers articulated a reasonable basis for their suspicion that
the Plaintiff was engaging in or about to engage in a crime. None of them allege
that they noticed a bulge in Plaintiff’s waistband, and none observed anything to
suggest that the Plaintiff might have been armed, other than that he reached
toward his waistband. The officers do not allege that they were familiar with the
Plaintiff or that he had a criminal record of which they were aware prior to
stopping him. In fact the evidence is that at the time of his arrest, the Plaintiff
was a 21 year old African American male, who had no criminal record. [Dkt. No.
78-1; Dkt. No. 78-4 at 5]. Nor do the Defendants allege that anyone reported
seeing a person fitting the Plaintiff’s description engaging in criminal or even
suspicious activity. The Defendants give no reason why they suspected that the
Plaintiff was reaching for a gun or other contraband as he approached the
entrance to a residential building as opposed to a key to gain entry to the
building. They do not explain why they did not think he was doing any number of
other perfectly benign things such as reaching for a cellphone, pulling up his
pants, or putting his hand in his pocket. The officers do state that they were
suspicious because he looked over his shoulder; but they describe the area as a
high-crime area, one in which a person would likely be observant of his
surroundings. In addition, the Defendants might have appeared ominous to the
Plaintiff. After all, there were four of them all dressed in black, approaching the
Plaintiff from the rear in a black SUV.
It is worth noting that even if the Plaintiff did not dispute that he reached
toward his waistband, the Defendant Officers’ stop would not have been justified.
While “the high-crime nature of the neighborhood” and the “adjustment of a
concealed object in [a] waistband,” are properly “among the relevant contextual
considerations” for a Terry stop, United States v. Padilla, 548 F.3d 179, 188 (2d
Cir. 2008), the Defendants do not cite and the Court is aware of no precedent that
has held these two features sufficient in and of themselves. See, e.g., Padilla, 548
F.3d at 188-89 (holding that these two circumstances, combined with the fact that
the Plaintiff followed a disheveled man apparently on drugs onto a wooded path,
justified a Terry stop); United States v. Lucas, 68 F. App’x 265, 267 (2d Cir. 2003)
(holding a stop lawful where the officer observed the appellant “mess around
with his waistband” and observed an object that “appeared to be a revolver,
handgun or something”); United States v. Bowden, 45 F. App’x 61, 62 (2d Cir.
2002) (finding a Terry stop reasonable where a suspect reached toward his
waistband following an altercation with another man in a parking lot); United
States v. Dorlette, 706 F. Supp. 2d 290, 303 (D. Conn. 2010) (“The Second Circuit
has never held that a suspect’s mere digging into pockets can give rise to
reasonable suspicion.”); Holeman v. City of New London, 330 F. Supp. 2d 99, 112
(D. Conn. 2004), rev’d on other grounds, 425 F.3d 184 (2d Cir. 2005) (stating that a
“general nonspecific aura of suspicion created by the presence of a vehicle in a
deserted, high-crime neighborhood did not rise to the standard of reasonable and
articulable suspicion necessary to justify a stop.”). The Defendants’ proof falls
far short of the quantum of proof necessary for summary judgment to enter in
their favor on this issue, as there are myriad factual issues for a jury to decide.
Accordingly, summary judgment on the Terry stop claim is DENIED.
b. Excessive Force
Claims that law enforcement officers have used excessive force “in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989); see also Jones v. Parmley, 465 F.3d
46, 61 (2d Cir. 2006). “[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham, 490 U.S. 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. Accordingly, a court must 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. (quotations and citations omitted).
The reasonableness of a particular use of force must be judged objectively
under the totality of the circumstances and “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id.; see also
Jones, 465 F.3d at 61 (“We are, of course, mindful that the reasonableness inquiry
does not allow us to substitute our own viewpoint; we must judge the officer’s
actions from the perspective of a reasonable officer on the scene.”).
Furthermore, “[t]he calculus of reasonableness must embody allowance 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.” Graham, 490 U.S. at 396-97.
“Not every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers . . . violates the Fourth Amendment.” Id. at 396 (internal
quotation marks and citations omitted).
The Second Circuit clearly requires the personal involvement of an
individual defendant in an alleged constitutional deprivation as a “prerequisite to
an award of damages under § 1983.” Farrell v. Burke, 449 F.3d 479, 484 (2d Cir.
2006) (citing Wright v. Smith, 496 F.3d 496, 501 (2d Cir. 1994)). “A police officer is
personally involved in the use of excessive force if he either: (1) directly
participates in an assault; or (2) was present during the assault, yet failed to
intercede on behalf of the victim even though he had a reasonable opportunity to
do so.” Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474 (S.D.N.Y. 2003) (citing Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)). “A plaintiff need not
establish who among a group of officers, directly participated in the attack and
who failed to intervene.” Id. Nevertheless, “[a] police officer cannot be held
liable in damages for failure to intercede unless such failure permitted fellow
officers to violate a suspect’s clearly established statutory or constitutional
rights.” Zainc v. City of Waterbury, 603 F. Supp. 2d 368, 384 (D. Conn. 2009)
(quoting Ricciuti, 124 F.3d at 129).
Considering the facts in the light most favorable to the Plaintiff, Officer
Luciano’s actions clearly constituted excessive force. First, there are genuine
issues of material fact as to whether the Defendants had a legitimate reason to
stop the Plaintiff in the first instance and to pursue him in the second. Also, both
the Plaintiff and an independent eyewitness offered evidence that the Plaintiff had
stopped attempting to flee before Officer Luciano began punching and elbowing
him in the face. [Dkt. No. 80-8 at 38; Dkt. No. 96-2, Lagos Dep., at 16]. Finally, the
independent eyewitness offered evidence that Officer Luciano repeatedly stuck
the Plaintiff in the face and that bystanders implored him to stop. [Dkt. No. 96-2,
Lagos Dep., at 16]. There is considerable evidence that these strikes served no
legitimate law enforcement purpose. Because Officer Luciano has not moved for
summary judgment on the Plaintiff’s excessive force claim, the Court need only
consider whether material factual disputes bar summary judgment as to Officers
Mulkern, Rodriguez, and Tabora.
Independent eyewitness testimony places each of these officers at the
scene while Officer Luciano was striking the Plaintiff. And the record contains no
evidence to suggest that any of the officers attempted to stop Officer Luciano’s
attack. Officer Tabora must have been near enough to the attack to stop it,
because it is undisputed that he assisted Officer Luciano in placing handcuffs on
the Plaintiff immediately after the incident. [Dkt. No. 78-2 at 82; Dkt. No. 96-2, A.
Martinez Dep., at 31]. Officer Mulkern allegedly yelled at the crowd that he
believed the Plaintiff deserved to be hit while it was happening. [Dkt. No. 96-2,
Lagos Dep., at 17-18]. And while the evidence is less clear regarding Officer
Rodriguez’s location during the assault, the evidence shows that he was at the
scene immediately before the assault began. [Dkt. No. 80-8 at 38]. It is
reasonable to infer that Officer Rodriguez remained on the scene until the arrest
had concluded. Thus, there is sufficient evidence in the record for a reasonable
jury to conclude that Officers Mulkern, Rodriguez, and Tabora were each present
while Officer Luciano struck the Plaintiff, that each had the ability to intercede on
the Plaintiff’s behalf, and that each failed to do so. Their motion for summary
judgment with respect to Plaintiff’s excessive force claim must therefore be
“To prove a § 1983 conspiracy, 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.” Pangburn v. Culbertson, 200 F.3d 65,
72 (2d Cir. 1999) (citing Carson v. Lewis, 35 F. Supp. 2d 250, 271 (E.D.N.Y. 1999)).
Plaintiff has offered evidence that the Defendant Officers agreed to initiate an
unconstitutional stop and to pursue the Plaintiff without identifying themselves
as police officers. Their alleged execution of these acts culminated in Officer
Luciano beating the Plaintiff bloody while the remaining officers stood by,
causing the Plaintiff severe physical injury and damages. Plaintiff has therefore
raised genuine issues of fact precluding summary judgment on this claim.
d. Qualified Immunity
The Defendant Officers further assert that even if Plaintiff’s claims under
section 1983 otherwise have merit, they are barred by the doctrine of qualified
immunity. Qualified immunity “protects public officials performing discretionary
functions from personal liability in a civil suit for damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Lore v. City of Syracuse, 670
F.3d 127, 162 (2d Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
To determine whether the qualified immunity defense bars Plaintiffs’
claims, the Court must determine (1) “whether the facts that a plaintiff has alleged
. . . make out a violation of a constitutional right,” and (2) “whether the right at
issue was ‘clearly established’ at the time of defendant’s alleged misconduct.”2
Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Jenkins v. City of N.Y., 478
F.3d 76, 87 (2d Cir. 2007). At step one, the Court must determine whether
defendant acted reasonably given the facts and circumstances at play. Saucier v.
Katz, 533 U.S. 194, 202-203 (2001). Because the Court has already determined
that a reasonable jury could find the Defendant Officers’ stop unlawful, that
Officer Luciano used excessive force, and that Officers Mulkern, Tabora, and
Rodriguez enabled Officer Luciano’s deployment of excessive force, this step is
At step two, the Court must determine “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”
Id. at 202. This inquiry “protect[s] officers from the sometimes hazy border”
between lawful and unlawful activity, and “ensure[s] that before they are
subjected to suit, officers are on notice their conduct is unlawful.” Id. at 205-06.
The two steps of the qualified immunity analysis may be conducted in any order
the Court deems appropriate given the facts at hand. Pearson, 555 U.S. at 236.
Step two of the qualified immunity analysis protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 341 (1986).
At the summary judgment stage, a Court may not make a qualified
immunity determination where “[t]he matter of whether it was reasonable for the
officers to believe their actions met the standards set by th[e] legal principles
governing defendants’ conduct depends on whether one believes their version of
the facts,” and Defendants’ version “is sharply disputed.” Weyant v. Okst, 101
F.3d 845, 858 (2d Cir. 1996); see also 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.”);
Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (“[S]ummary judgment based
either on the merits or on qualified immunity requires that no dispute about
material factual issues remain.”). The parties sharply dispute many facts central
to whether a reasonable officer would have known that his conduct was unlawful
in the situation he confronted. For example, one factual dispute central to this
question is whether the Plaintiff had stopped attempting to flee from the officers
before Officer Luciano began striking him in the face. If he had, a reasonable jury
could conclude that Officer Luciano should have known striking the Plaintiff in
the face with closed fists and elbows was unlawful.
The Court therefore DENIES the Defendant Officers’ Motion for Summary
Judgment with respect to Plaintiff’s claims under section 1983.
2. State Law Claims
a. Count Four: Malicious Abuse of Process
An action for abuse of process lies against any person using a legal
process against another in an improper manner or to accomplish a purpose for
which it was not designed. Suffield Dev. Assocs. Ltd. P’ship v. Nat’l Loan Inv’rs,
L.P., 260 Conn. 766, 772-73 (2002) (citing Varga v. Pareles, 137 Conn. 663, 667
(1951)). “[T]he gravamen of the action for abuse of process is the use of a legal
process . . . against another primarily to accomplish a purpose for which it is not
designed.” Suffield Dev. Assocs, 260 Conn. at 772 (quotations and citations
omitted). Liability is excluded “when the process is used for the purpose for
which it is intended, but there is an incidental motive of spite or an ulterior
purpose of benefit to the defendant.” Id. at 773.
Plaintiff has not offered evidence sufficient to sustain a claim for malicious
abuse of process; evidence of an improper search and excessive force is not
alone sufficient to sustain this claim. See, e.g., Holeman, 330 F. Supp. 2d at 121
(holding that where police officers lacked reasonable suspicion justifying a traffic
stop, and then unreasonably shot a passenger, the “the record [was] devoid of
any evidence establishing that defendants used a legal process for a purpose for
which it [was] not designed”). Count Four is therefore DISMISSED.
b. Count Seven: Assault and Battery
“To establish a claim for assault and battery, plaintiff must prove that
defendants applied force or violence to her and that the application of force or
violence was unlawful.” Odom v. Matteo, 772 F. Supp. 2d 377, 395 (D. Conn. 2011)
(quoting Williams v. Lopes, 64 F. Supp. 2d 37, 47 (D. Conn. 1999)). Where genuine
issues of fact preclude summary judgment on the Plaintiff’s excessive force
claim, summary judgment on the common law claim for assault and battery
generally must also be denied. See, e.g., Nelson v. City of Stamford, No. 3:09-CV1690 VLB, 2012 WL 233994, at *9 (D. Conn. Jan. 25, 2012) (denying summary
judgment where material factual disputes remain regarding the amount and
reasonability of force applied to [the plaintiff] during her arrest”); Odom, 772 F.
Supp. 2d at 395 (denying summary judgment on assault and battery claims where
“there are genuine issues of material fact regarding the reasonableness of [the
defendant’s] use of force”).
As with excessive force, Officer Luciano has not moved for summary
judgment on Plaintiff’s assault and battery claim. Plaintiff’s excessive force
claims against Officers Tabora, Mulkern, and Rodriguez depend largely on their
failure to intervene while Officer Luciano struck the Plaintiff. However, each
made what a reasonable jury could conclude was a harmful or offensive contact
with the Plaintiff during the pursuit and arrest: (1) Officer Mulkern grabbed the
Plaintiff’s arm while he attempted to flee; (2) Officer Rodriguez tased the Plaintiff;
and (3) Officer Tabora handcuffed the Plaintiff. The record contains evidence
regarding each of these incidents that would permit a reasonable jury to conclude
that any of these contacts was harmful, offensive, and unlawful. Summary
Judgment on Count Seven is therefore DENIED.
c. Count Nine: Intentional Infliction of Emotional Distress
To prevail on an intentional infliction of emotional distress claim, the
Plaintiff must demonstrate: “(1) that 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. Bd. of
Educ. of Town of Stonington, 254 Conn. 205, 210 (2000) (quotations and citations
omitted). “Liability for intentional infliction of emotional distress requires
conduct that exceeds ‘all bounds usually tolerated by decent society . . . . ’” Id.
(quoting Petyan v. Ellis, 200 Conn. 243, 254 (1986)). “Generally, the case is one
in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim,
[‘]Outrageous!’” Morrissey v. Yale Univ., 268 Conn. 426, 428 (2004) (quoting
Carrol v. Allstate Ins. Co., 262 Conn. 433, 443 (2003)).
Plaintiff has offered evidence that the Defendant Officers approached and
pursued him without identifying themselves as police officers, and using violent
means to try to stop him. He has further offered evidence that even after he
stopped fleeing, Officer Luciano punched and elbowed him in the face so hard
that he broke several bones in the Plaintiff’s face, gave the Plaintiff a concussion,
and caused the Plaintiff to suffer a blackout. [Dkt. No. 96-2, Ex. 25]. Considered
in the light most favorable to the Plaintiff, the remaining officers had the ability
and duty to intervene on the Plaintiff’s behalf to stop Officer Luciano’s assault,
but failed to do so.
The Court is confident that Officer Luciano’s conduct would cause an
average member of the community to exclaim “Outrageous!”—especially
because several bystanders effectively did so, when they “started screaming at
[Officer Luciano] to stop,” [Dkt. No. 96-2, Lagos Dep., at 17]. Moreover, summary
judgment is inappropriate where material issues of fact remain regarding what
opportunity Officers Tabora, Mulkern, and Rodriguez may have had to intervene
to prevent the Plaintiff’s injuries. See Jones v. City of Hartford, 285 F. Supp. 2d
174, 189-90 (D. Conn. 2003) (“Because there are material issues of fact as to
Officers Rodriguez and Nichols and what opportunity they may have had to
intervene to prevent Jones’s injuries, however, the court leaves the issue of
whether the officers intended to inflict emotional distress or knew that emotional
distress was the likely outcome of their actions, or whether their failure to
intervene was extreme and outrageous to the jury.” (quotations omitted)).
Summary Judgment on Count Nine is therefore DENIED.
B. Claims Against the City of Norwalk
The Plaintiff argues that the City of Norwalk should be held responsible for
the Defendant Officers’ actions, because it failed to adequately train or supervise
them. Plaintiff also asserts a negligence claim.
The United States Supreme Court has held that a municipality cannot be
held liable on a respondeat superior theory for constitutional violations. Monell
v. Dep’t of Social Services, 436 U.S. 658, 691 (1978). The Monell Court held that
“a local government may not be sued under § 1983 for an injury inflicted solely by
its employees or agents. Instead, it is when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the government as
an entity is liable under § 1983.” Id. at 694. Thus, to hold a municipality liable
under 42 U.S.C. § 1983, a plaintiff must prove that the asserted violation of a
federally protected right was caused by a municipal policy, a municipal custom or
practice, or the decision of a municipal policymaker with final policymaking
authority. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). A plaintiff
must further demonstrate that, “through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged.” Board of County
Commissioners v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original). “That
is, a plaintiff must show that the municipal action was taken with the requisite
culpability and must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.” Id.
“Monell’s policy or custom requirement is satisfied where a local
government is faced with a pattern of misconduct and does nothing, compelling
the conclusion that the local government has acquiesced in or tacitly authorized
its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d
Cir. 2007). “Such a pattern, if sufficiently persistent or widespread as to acquire
the force of law, may constitute a policy or custom within the meaning of Monell.”
Id. “It follows therefore that a government supervisor who fails to take obvious
steps to prevent manifest misconduct is subject to suit under § 1983 in certain,
limited circumstances.” Id.
Plaintiff has offered no admissible evidence sufficient for a jury to hold that
a pattern of misconduct existed in this case, that the Defendant Officers were
implementing a city policy when they used or enabled excessive force, or that the
Defendant Officers were improperly trained. Instead, the Plaintiff relies largely on
expert opinions that were not properly disclosed in this case, as the Court
discussed at length in a previous Order. [See Dkt. No. 113]. The Federal Rules of
Civil Procedure are designed to permit the parties to conduct discovery with
minimal court intervention. Cf. Barletta v. Quiros, No. 3:10-CV-939 AVC, 2011 WL
6260436, at *1 (D. Conn. Dec. 15, 2011) (The Federal Rules “encourage the parties
to resolve discovery disputes without court intervention.”). And the sequence
and pace of discovery is left to the parties’ discretion. Alan Wright & Arthur R.
Miller, et al., 8A Fed. Prac. & Proc. Civ. § 2047 (3d ed.) (“[A]ll parties are allowed to
use the discovery devices when and how they choose.”). Plaintiff’s disclosure of
their “pattern and practice” expert, Michael Levine, on the eve of the close of
discovery, via a summary that did not comply with Rule 26(a)(2)(B), did not give
the Defendants sufficient notice of his opinions prior to the dispositive motions
deadline, and therefore should not be considered.
Without his opinions, Plaintiff has only offered the Court evidence that the
Norwalk Police Department utilized a plainclothes police operation whose officers
did not respond to calls and occasionally used force during arrests, and who
received training comparable to other police officers in Connecticut. These facts
are insufficient to create a genuine issue of fact with respect to the Plaintiff’s
Monell claim, and they cannot support a claim that the City of Norwalk breached
any duty of care. Plaintiff’s claims against the City of Norwalk must therefore be
For the foregoing reasons, the Defendant Officers’ Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART and the City of Norwalk’s
Motion for Summary Judgment is GRANTED. Counts Four, Five, and Ten of the
Amended Complaint [Dkt. No. 51] are DISMISSED. As the Plaintiff expressly
abandoned it, [see Dkt. No. 96 at 1 n.1], Count Eight is also DISMISSED.
The Clerk is directed to terminate the City of Norwalk as a party to this
IT IS SO ORDERED.
_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 21, 2017
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