Award v. Troop F Westbrook Police Dep. et al

Filing 116

ORDER granting 95 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 8/23/17. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SEBASTIAN AWARD,
Plaintiff,
v.
SCOTT WISNER, ET AL.,
Defendants.

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CASE NO. 3:15-cv-175 (DJS)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff, Sebastian Award (“Award”), commenced this civil rights action against
State Police Troopers, Detective Scott Wisner (“Wisner”) and Sergeant Keith Graham
(“Graham”). The plaintiff contends that the defendants used excessive force against him in the
course of a police pursuit culminating in his arrest on April 8, 2013. The defendants have filed a
motion for summary judgment. For the reasons that follow, defendants’ motion is granted.
I.

Standard of Review
A motion for summary judgment may be granted only where there is no genuine dispute

as to any material fact and the moving party is entitled to judgment as a matter of law. Rule
56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party
may satisfy his 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. Wright v. Goord, 554 F.3d 255, 266 (2d Cir.
2009). He must present such evidence as would allow a jury to find in his favor to defeat the
motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
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The nonmoving party “must offer some hard evidence showing that its version of the events is
not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
II.

Facts1
On April 8, 2013, Wisner heard a radio dispatch that officers from the Old Saybrook

Police Department were engaged in a high speed chase with suspects in an armed robbery.
Award was driving the suspects’ car. He drove several miles on two-lane secondary roads
through populated suburban areas at high rates of speed, at times in excess of 80 mph, and did
not heed the lights and sirens of the pursuing police vehicles.
Upon learning that the suspects were heading in his direction, Wisner, who was just
completing his shift, decided to activate his siren and lights, pull onto the road in front of the
suspects’ car, and try to box them in with the pursuing police vehicles, thereby ending the
pursuit. While waiting at the side of the road for the suspects to approach his location, Wisner
placed his gun and holster on the seat between his legs.
Wisner saw the suspects’ car and police vehicles approaching and pulled onto the road in
front of the suspects’ car. Award tried to pass defendant Wisner’s vehicle. At this time, Wisner
was braking and Award was accelerating. The cars collided and the suspects’ car drove up over
the left rear of Wisner’s vehicle. Both vehicles went off the road. The suspects’ car flipped over
and landed on the passenger side of the car. Wisner’s vehicle remained upright. When they
came to a stop, the front ends of the vehicles were touching, and the rear ends were a few feet
apart, in a tight inverted v-shape. The sunroof of the suspects’ car was facing the driver’s
window of Wisner’s vehicle. The glass from the sunroof had broken during the crash and was no
longer in place.

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The facts are taken from the parties’ Local Rule 56(a) Statements and exhibits.

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Immediately following the crash, Wisner located his gun on the floor and bent over to
retrieve it. While he was doing so, the passenger in the suspects’ car fired several shots into
Wisner’s vehicle. One shot hit Wisner in the left arm and shoulder area. Another grazed his left
ear. When Wisner unholstered his gun and sat up to return fire, he saw a man pointing a revolver
at him through the sunroof of the suspects’ car. The passenger had not been wearing a seat belt
and was sitting on the passenger door looking out through the open sunroof. Wisner discharged
seven of the nine bullets in his gun toward the man pointing the gun at him. One of the bullets
hit the passenger in the chest, others hit his foot and ankle. One bullet struck Award, who was
suspended in his seat belt, in the back. A large portion of that bullet remains lodged in Award’s
back.
Graham was the first State Trooper to respond to the scene and the first person to
approach the vehicles. As he left his vehicle he heard shots being fired. Graham approached the
area between the two vehicles with his gun drawn and stood near the rear wheel of Wisner’s
vehicle. He was able to see into the suspects’ car from his position and ordered the suspects to
show their hands. Other State Troopers also had guns aimed at the suspects. Upon ascertaining
that Wisner had been shot, Graham handed Wisner’s gun to other troopers who then extracted
Wisner from his vehicle through the passenger door and took him to a clinic for treatment of his
gunshot wounds. Although Graham repeatedly ordered the passenger not to touch the revolver,
which was located on the ground within his reach, the passenger picked up the revolver.
Graham fired one shot from his gun which struck the passenger’s right hand and broke the
wooden butt of the revolver. The bullet fired by Graham was later located on the ground and
matched with Graham’s gun.
The passenger was handcuffed and both suspects were removed from the car. Award was

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subsequently transported by helicopter to Hartford Hospital for medical care. The passenger was
transported to a medical center where he was pronounced dead.
III.

Discussion
In his complaint, the plaintiff alleges that the defendants used excessive force against

him, defendant Wisner by ramming his car and forcing it off the road, and defendant Graham by
shooting him in the back. On September 12, 2016, the plaintiff filed a document entitled “The
Plaintiff’s Alternative Statement of Claim” in which he purports to present an alternative claim
pursuant to Rule 8(d), Fed. R. Civ. P. See ECF No. 79. Rule 8 sets forth rules for pleadings, i.e.,
the manner in which the claims should be presented in the complaint. Indeed, the section cited
by the plaintiff requires that pleadings be concise and direct and permits alternative statements of
a claim in the pleading. Fed. R. Civ. P. 8(d). The term “pleading” has a specific definition.
Rule 7(a) provides that, as relevant here, only a complaint is a pleading. Fed. R. Civ. P. 7(a).
Thus, if the plaintiff wanted to include an alternative statement of claim, he was required to
amend his complaint. He did not do so. Thus, the plaintiff’s alternative claim, that defendant
Wisner uses excessive force against him by shooting him, was not raised in accordance with the
requirements of the Federal Rules of Civil Procedure. As the plaintiff is proceeding pro se,
however, the Court will consider this alternate claim as well as the claims included in the
complaint.
Claims that a police officer used excessive force in the course of an arrest or other seizure
are considered under the reasonableness standard of the Fourth Amendment. To prevail on an
excessive force claim against a police officer, the plaintiff must show that the amount of force
used was objectively unreasonable either as to when or how the force was applied, and that, as a
result of the use of force, he suffered some compensable injury. See Graham v. Connor, 490

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U.S. 386, 396 (1989); Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004). Whether
a given quantum of force is excessive depends on “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. “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,” and must allow “for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation.” Id. at 396, 397.
Award contends that Graham shot him. The firearms report submitted by the defendants
shows that Graham fired only one shot. See ECF No. 95-27 at 2. The bullet from Graham’s gun
was found on the ground. See ECF No. 95-17 at 2, 5. Since a large portion of the bullet that
struck Award remains lodged in his body, see ECF No. 111-17 at 1-2, Graham could not have
been the person who shot the plaintiff.
In opposition to the motion for summary judgment, the plaintiff offers his own affidavit
stating that Graham shot him. “‘When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’”
Vega v. Rell, 611 F. App’x 22, 25-26 (2d Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380
(2007)). Here, the firearms report on Graham’s gun is conclusive. Only one shot was fired and
the bullet was recovered. The plaintiff has provided no objective evidence in support of his
contention. Therefore, he has not established an issue of fact regarding this claim. The
defendants’ motion for summary judgment is granted as to the claim against defendant Graham.

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Award was shot while Wisner was returning fire after being shot by the passenger. A
police officer may use deadly force when the officer has probable cause to believe that a threat of
serious physical harm to himself exists. See Tennessee v. Garner, 471 U.S. 1, 11 (1985). Here,
Wisner knew from the police radio reports that the suspects were armed robbers and he was
returning fire after being shot at close range. Thus, it was reasonable for Wisner to use deadly
force in response. There is no evidence that Wisner intentionally shot the plaintiff. Courts
considering similar claims have held that where an unarmed person is shot during an exchange of
fire between a police officer and an armed suspect, the unarmed person does not have a claim for
use of excessive force. See Jackson v. Pena, 28 F. Supp. 3d 423, 430-31 (D. Md. 2014) (police
had reasonable cause to use deadly force following exchange of gunfire; an unarmed person shot
during the exchange had no Fourth Amendment cause of action for use of excessive force
because the shooting was reasonable under the circumstances). Nor does Wisner’s conduct
support a Fourth Amendment claim of unreasonable seizure. See Medeiros v. O’Connell, 150
F.3d 164, 168 (2d Cir. 1998) (“the accidental shooting of a hostage or innocent bystander” is not
a “seiz[ure] within the meaning of the Fourth Amendment”). Thus, Award cannot state a
cognizable claim for excessive force against Wisner regarding his shooting. The defendants’
motion for summary judgment is granted as to this claim.
Award also argues that Wisner used excessive force against him by ramming his car and
forcing it off the road. Award submits two lay witness statements in support of his contention.
Neither statement does so. The first states only that the cars collided. See ECF No. 111-8 at 2
(“I saw the blue metallic vehicle move from the northbound lane into the southbound lane and
attempt to pass the navy blue vehicle. As this happened, I saw the navy blue vehicle and the blue
metallic vehicle make contact with each other.”). The second appears to contradict Award’s

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version of the events. See ECF No. 111-9 (“When I looked outside I saw two cars traveling
north on Rt 153. I then saw the car in the rear, a bright blue car, almost climb on top of the car in
front of it and then they both went down the embankment across the street from my house”).
Further, the data from the airbags in the two vehicles shows that Wisner was braking and
Award was accelerating when the cars made contact. The accident reconstruction report, based
on the data from the airbags, physical evidence at the accident scene, and review of video
footage of the accident, found that Award struck Wisner’s vehicle while trying to pass the
vehicle. See ECF No. 95-16, at 5. Award was charged with motor vehicle violations in
connection with the chase and crash and entered a plea of nolo contendere to the charges. Award
has provided no objective evidence showing that Wisner caused the crash. “Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks
omitted); see also Makhoul v. Watt, Tieder, Hoffar & Fitzgerald, L.L.P., 662 F. App’x 33, 35 (2d
Cir. 2016) (“Given the overwhelming documentary evidence to the contrary, the District Court
rightly found that [the plaintiff’s] affidavit is so blatantly contradicted by the record evidence
that no reasonable jury could believe its version of events.”). Thus, there is no genuine issue as
to Award’s claim that defendant Wisner used excessive force against him by hitting his car.
Even if Wisner had caused the crash, his actions would not have risen to the level of a
constitutional violation. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court addressed a
case with facts similar to those in this action. In Scott, the respondent Harris engaged police in a
high-speed chase on a two-lane road. After following Harris for a number of miles, Deputy Scott
attempted a maneuver, bumping the rear of Harris’s vehicle with the push bar on the front of his
vehicle, which was intended to cause a fleeing vehicle to spin out and stop. Harris, however, lost

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control of his vehicle which ran down an embankment, overturned and crashed. Id. at 374-75.
The Supreme Court held that Scott’s actions were reasonable under the circumstances and did
not violate Harris’s constitutional rights: “A police officer’s attempt to terminate a dangerous
high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth
Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Id. at
386.
Here, Award was pursued by police for many miles. He drove at high rates of speed,
crossed a double yellow line, and ran red lights. When Wisner slowed down to try to get him to
stop, Award tried to pass. There is no evidence to support Award’s contention that Wisner
deliberately rammed the front of his car. Photos of Wisner’s car show damage to the left rear
quarter panel and door. See ECF No. 95-12 at 8-9. Even if Wisner had caused his vehicle to
contact the plaintiff’s car, as in Scott, Wisner’s actions were reasonable. Thus, Wisner’s actions
in attempting to stop Award’s car did not constitute use of excessive force. See Plumhoff v.
Rickard, ___ U.S. ___, 134 S. Ct. 2012, 2021-22 (2014) (police officers acted reasonably in
using deadly force to end a high-speed chase). The defendants’ motion for summary judgment is
granted as to this claim.

IV.

Conclusion
Defendants’ motion for summary judgment [ECF No. 95] is GRANTED. The Clerk is

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directed to enter judgment in favor of the defendants and close this case.

SO ORDERED this 23rd

day of August, 2017.

____/s/ DJS_______________________________
Dominic J. Squatrito
United States District Judge

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