Chalco v. Belair et al

Filing 167

ORDER granting 112 Defendant Belair's Renewed Motion for Summary Judgment and 127 Defendants Madore, Howley and Katkocin's Renewed Motion for Summary Judgment for the reasons set forth in the attached Memorandum of Decision. The Clerk is directed to terminate Defendants Madore, Howley and Katkocin. Signed by Judge Vanessa L. Bryant on 11/9/2018. (Lindberg, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RENE CHALCO,
Plaintiff,
v.
CHRISTOPHER BELAIR, ROBERT
MADORE, RYAN HOWLEY, and
ANDREW KATKOCIN,
Defendants.

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No. 3:15-CV-340 (VLB)

November 9, 2018

MEMORANDUM OF DECISION GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT [DKTS. 112, 127]
Plaintiff Rene Chalco (“Plaintiff”) brought this action against City of Danbury
police officers Christopher Belair, Robert Madore, Ryan Howley, and Andrew
Katkocin (collectively, “Defendants”). Before the Court are Defendants’ renewed
Motions for Summary Judgment as to Plaintiff’s claims that Defendants deprived
him of his rights under the Fourteenth Amendment to the United States
Constitution in violation of Section 1983 by (1) creating a risk of harm to him under
a state-created danger theory and (2) acting with deliberate indifference to his
medical needs. For the following reasons, the Court GRANTS Defendants’ Motions
for Summary Judgment. [Dkts. 112, 127].
I.

Procedural History

Plaintiff brought this action on March 6, 2015. [Dkt. 1 (Compl.)]. Defendants
moved for summary judgment in November 2016. [Dkt. 63 (Defs. Madore, Howley
and Katkocin’s Mot. for Summ. J.); Dkt. 65 (Def. Christopher Belair’s Mot. for Summ.

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J.)]. On June 1, 2017, the Court denied Defendants’ Motions for Summary
Judgment. [Dkt. 94 (Mem. of Decision Den. Defs.’s Mots. for Summ. J.)]. Defendants
appealed on June 12, 2017 claiming that the Court should have concluded that they
were entitled to qualified immunity. [Dkt. Nos. 100-101 (Notices of Appeal)].
The Second Circuit dismissed Defendants Madore, Howley, and Katkocin’s
appeal because they failed to plead qualified immunity as an affirmative defense or
move for summary judgment on qualified immunity grounds. [Dkt. 125 (Summ.
Order) at 4]. The Second Circuit affirmed in part the Court’s decision as to
Defendant Belair. Id. at 5-6. It found that Defendant Belair failed to show entitlement
to qualified immunity as to Plaintiff’s excessive force claim. Id. at 5. The Second
Circuit remanded for further proceedings and instructed the Court to rule on
qualified immunity as it relates to Plaintiff’s claims for deliberate indifference and
state-created danger, if properly raised before the Court. Id. at 6.
On July 16, 2018, Defendant Belair filed his renewed Motion for Summary
Judgment. [Dkt. 112 (Def. Christopher Belair’s Renewed Mot. for Summ. J.)]. On
July 17, 2018, Defendants Madore, Howley, and Katkocin filed their answer to the
amended complaint in which they asserted the special defense of qualified
immunity. [Dkt. 113 (Answer to First Am. Compl. and Special Defenses)]. On
August 8, 2018, Defendants Madore, Howley, and Katkocin filed their renewed
Motion for Summary Judgment. [Dkt. 127 (Defs. Madore, Howley and Katkocin’s
Renewed Mot. for Summ. J.)].

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II.

Factual Background

On March 7, 2013, at approximately 11:00 p.m., Plaintiff went to a bar in
Danbury and stayed until it closed at 1:00 a.m. [Dkt. 112-3 (Pl.’s Dep.) at 22:8-22].
Plaintiff proceeded to drive home although he did not have a license and had never
been licensed to drive. Id. at 23:17-23. There was a snowstorm that evening and
snow had accumulated on the ground. [Dkt. 126-3 (Pl.’s Dep.) at 29:20-30:2; Dkt.
137-3 (Pl.’s Dep.) at 29:30-30:2]. The snow made the road slippery. [Dkt. 112-3 at
30:6-24; Dkt. 126-3 at 30:6-24; Dkt. 137-3 at 30:6-24]. On his way home, Plaintiff
attempted to stop at a stop sign before White Street, but due to the slippery
conditions caused by the snow he skidded through it. Id.
While patrolling the area of White Street, Defendant Madore observed
Plaintiff’s vehicle roll through the stop sign. [Dkt. 127-6 (Madore Aff.) at ¶¶ 4, 6].
Defendants Katkocin and Howley were following behind Defendant Madore in
Defendant Katkocin’s cruiser. Id. at ¶ 5. Defendant Madore stopped Plaintiff and
Defendant Katkocin also pulled over. [Dkt. 127-5 (Katkocin Aff.) at ¶ 6]. Defendant
Madore conversed briefly with Plaintiff and then returned to his cruiser to write
Plaintiff a ticket for failing to obey a stop sign and driving without a license. [Dkt.
127-6 at ¶ 8]. Defendants Howley and Katkocin informed Plaintiff that his car was
going to be towed because he did not have a license. [Dkt. 126-14 (Internal Affairs
Report) at 4]. By this time, Defendant Belair had also arrived on the scene. [Dkt.
127-6 at ¶ 9]. Defendant Belair exited his cruiser and approached Plaintiff. Id.
While Defendant Madore was writing Plaintiff’s ticket, Defendant Belair stayed with

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Plaintiff. Id. Plaintiff appears to have asked how he would get home and Defendant
Belair responded:
“You got here somehow. Then walk back home. Take a fucking bus.
Take that car once you get it out. I don’t care. But stop being in this
country and almost fucking killing people because you’re too fucking
stupid to call a ride. Honestly if there wasn’t four other cops here . . .
if there wasn’t four other cops I’d beat the shit out of you right now . .
. . It’s an asshole like you that killed my uncle because he was fucking
drunk driving, right? Some douchebag like you that decided to drink
too much and go out in the middle of a fucking snowstorm when you
shouldn’t even have been driving anyway. But that’s alright. You don’t
even give a shit about other people’s families do you? . . . . You’re a
piece of shit.” [Dkt. 72-2 (Audio CD Labeled A-1); Dkt. 126-3 at 49:1450:10; Dkt. 137-3 at 49:14-50:10].
Defendant Belair then punched Plaintiff in the mouth and nose. [Dkt. 126-3
at 50:9-14, 52:2-13; Dkt. 126-14 at 14; Dkt. 137-3 at 50:9-14, 52:2-13]. Plaintiff
immediately held his hand to his face. [Dkt. 112-3 at 57:20-24; Dkt. 126-14 at 14;
Dkt. 126-3 at 52:10-18; Dkt. 127-7 (Pl.’s Dep.) at 57:20-24; Dkt. 137-3 at 52:10-18].
Afterwards, Defendant Belair stated to Plaintiff, “Now you want to cry? Now you
want to cry?” [Dkt. 112-3 at 57:1-6; Dkt. 126-3 at 52:10-21; Dkt. 127-7 at 57:1-6; Dkt.
137-3 at 52:10-21]. During this exchange, Plaintiff repeatedly apologized to
Defendant Belair. [Dkt. 72-2; Dkt. 126-3 at 49:23-50:10; Dkt. 137-3 at 49:23-50:10].
Plaintiff testified that after Defendant Belair punched him the inside of his mouth
began bleeding and he swallowed the blood while he was speaking with the
Defendants and continued doing so until he was alone walking to his home which
was one mile away from the scene. [Dkt. 112-3 at 57:20-24, 59:2-6; Dkt. 126-3 at
57:20-24, 59:2-6; Dkt. 126-14 at 13-14; Dkt. 127-7 at 107:7-108:25; Dkt. 137-3 at 57:2024, 59:2-6]. Plaintiff does not claim that he requested medical assistance or a ride
home from Defendants. [Dkt. 112-3 at 60:18-61:19; Dkt. 126-3 at 128:2-8; Dkt. 1274

7 at 60:18-61:19; Dkt. 137-3 at 128:2-8]. On his one mile walk home, Plaintiff could
no longer swallow the blood and it dripped out of his mouth onto his clothing. [Dkt.
112-3 at 59:2-5; Dkt. 126-3 at 59:2-6; Dkt. 127-7 at 59:2-6; Dkt. 137-3 at 59:2-6].
Plaintiff does not allege any Defendant saw that he was bleeding. He testified that
he swallowed the blood until he was walking home after the Defendants had left
the scene. Id.
Defendant Belair denies he punched Plaintiff. [Dkt. 112-4 (Belair Aff.) at ¶
13]. Defendants Howley, Katkocin and Madore submitted affidavits swearing that
they did not observe Defendant Belair punch Plaintiff and that they noticed no
injury to Plaintiff’s lip. [Dkt. 127-4 (Howley Aff.) at ¶¶ 11-13; Dkt. 127-5 at ¶¶ 11-13;
Dkt. 127-6 at ¶¶ 10-13].

However, Plaintiff’s brother, two co-workers, and an

acquaintance testified that they observed Plaintiff’s swollen lip in March 2013. [Dkt.
126-6 (J. Chalco Dep.) at 63:10-19; Dkt. 126-7 (Gallagher Dep.) at 98:12-14, 100:2527; Dkt. 126-8 (Rizkallah Dep.) at 75:13-23, 78:9-27; Dkt. 126-9 (Guillcatanda Dep.)
at 56:7-12]. Plaintiff also offers photographs of the inside of his mouth which he
contends depict an injury to the inside of his mouth and a blood-stained jacket.
[Dkt. 137-10 (Photographs of Plaintiff); Dkt. 137-5 (Photographs of Jacket)]. These
are poor photographs and it is questionable whether they depict what Plaintiff
offers them to show, but the Court assumes they depict what Plaintiff claims.
Following the incident, a complaint was made to the Danbury Police
Department, and the resulting investigation determined that Defendants violated
several department policies. Madore, Katkocin and Belair were found to have
violated department policy by failing to activate, or disabling before the traffic stop

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ended, video and audio recording systems in their vehicles. [Dkt. 126-14 at 10-11,
13-14]. Defendants Madore and Belair were found to have violated their duty of care
by instructing Plaintiff to “walk home a distance of approximately one mile at
approximately 0130 hrs during an intense snow storm” after Plaintiff had “already
been seen stumbling in the roadway.” Id. at 9-10, 13.

The investigation also

determined that Defendants Katkocin and Howley violated department policy by
failing to intervene or report the incident to a supervisor when they observed
Defendant Belair yelling at Plaintiff. Id. at 11-12. Defendants Katkocin and Howley
also both reportedly told internal affairs that they saw, or knew that Plaintiff was
allowed to, walk away from the scene. Id. at 11, 13. Plaintiff testified at his
deposition that he walked home without incident and went to bed without seeking
medical treatment. [Dkt. 112-3 at 61:6-64:7; Dkt. 127-7 at 61:6-64:7].
III.

Legal Standard

Summary judgment should be granted “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.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving
that no genuine factual disputes exist. See 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, 255 (1986); Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the
court should review the record as a whole, it must disregard all evidence favorable

6

to the moving party that the jury is not required to believe.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp.,
No. 3:03-cv-00481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (“At the
summary judgment stage of the proceeding, [the moving party is] required to
present admissible evidence in support of their allegations; allegations alone,
without evidence to back them up, are not sufficient.”) (citing Gottlieb v. Cty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. Conn. State Library, 817 F.
Supp. 2d 28, 37 (D. Conn. 2011). Put another way, “[i]f 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) (internal citation and
quotation omitted).
A party who opposes summary judgment “cannot defeat the motion by
relying on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.” Gottlieb, 84 F.3d
at 518. Where there is no evidence upon which a jury could properly proceed to
find a verdict for the party producing it and upon whom the onus of proof is
imposed, such as where the evidence offered consists of conclusory assertions
without further support in the record, summary judgment may lie. Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 726–27 (2d Cir. 2010).
IV.

Discussion

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

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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 that
Defendants deprived him of his rights under the Fourteenth Amendment to the
United States Constitution in violation of Section 1983 by (1) creating a risk of harm
to him under a state-created danger theory and (2) acting with deliberate
indifference to his medical need.
A.

Qualified Immunity

Defendants argue that they are immune from liability under the doctrine of
qualified immunity1 under which “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

1

Plaintiff argues that Defendants Madore, Howley and Katkocin have waived qualified
immunity by failing to raise it in their original motion for summary judgment. Plaintiff cites
Blissett v. Coughlin in which the court sua sponte raised the question of qualified immunity
on the morning of trial. 66 F.3d 531, 538-39 (2d Cir. 1995). The court did not allow the
affirmative defense because counsel could not articulate it differently from his defense
that no constitutional violation occurred. Id. at 539. Unlike in Blissett, Defendants are
specifically pursuing the defense, Plaintiff has known Defendants intended to assert it for
over two months, and Plaintiff has had an opportunity to respond. Plaintiff is not
prejudiced as the defense was not asserted on the eve of trial. Similarly, McCardle v.
Haddad is inapposite because defendant moved after trial for judgment as a matter of law
and briefly mentioned qualified immunity as one basis for relief. 131 F.3d 43, 52 (2d Cir.
1997). The defendant in McCardle did not raise qualified immunity at summary judgment
or in any other pretrial motion. Id. The Court also finds that denying Plaintiff’s waiver
argument fulfills the purpose of the qualified immunity “to avoid subject[ing] government
officials either to the costs of trial or the burdens of broad-reaching discovery in cases
where the legal norms the officials are alleged to have violated were not clearly established
at that time.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal citations and quotations
omitted).

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818 (1982); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009).

When

considering qualified immunity, “[t]he dispositive question is whether the violative
nature of particular conduct is clearly established [and] [t]his inquiry must be
undertaken in light of the specific context of the case, not as a broad general
proposition.” Mullenix v. Luna, 136 S.Ct. 305, 308, 193 L.Ed.2d 255, 308 (2015)
(internal citations and quotations omitted). For a right to be clearly established, it
must be “sufficiently clear that a reasonable official would understand what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also
Reichle v. Howards, 566 U.S. 658, 664 (2012).
The factors to assess in determining whether a right was clearly established
are: “(1) whether the right in question was defined with ‘reasonable specificity’; (2)
whether the decisional law of the Supreme Court and the applicable circuit court
support the existence of the right in question; and (3) whether under preexisting
law a reasonable defendant official would have understood that his or her acts were
unlawful.” Pena v. DePrisco, 432 F.3d 98, 115 (2d Cir. 2005) (internal citation
omitted). This does not mean that there must be “a case directly on point, but
existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
“Even where the plaintiff’s federal rights and the scope of the official’s
permissible conduct are clearly established, the qualified immunity defense
protects a government actor if it was ‘objectively reasonable’ for him to believe that
his actions were lawful at the time of the challenged act.” Lennon v. Miller, 66 F.3d
416, 420 (2d Cir. 1995) (citing Anderson, 483 U.S. at 641). Since law enforcement

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officers must make prompt decisions in rapidly evolving situations “there can
frequently be a range of responses to given situations that competent officers may
reasonably think are lawful.” Walczyk v. Rio, 496 F.3d, 139, 154 n. 16 (2nd Cir.
2007). Qualified immunity is a “forgiving” standard. Amore v. Novarro, 624 F.3d
522, 530 (2d Cir. 2010). Qualified immunity “provides ample protection to all but
the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986).
“Qualified immunity is an affirmative defense and the burden is on the
defendant-official to establish it on a motion for summary judgment." Bailey v.
Pataki, 708 F.3d 391, 404 (2d Cir. 2013). In assessing the validity of a qualified
immunity defense, the Court is “not concerned with the correctness of the
defendants' conduct, but rather the ‘objective reasonableness’ of their chosen
course of action given the circumstances confronting them at the scene.” Lennon,
66 F.3d at 421. “For a defendant to secure summary judgment on the ground of
qualified immunity, he must show that no reasonable jury, viewing the evidence in
the light most favorable to the Plaintiff, could conclude that the defendant's actions
were objectively unreasonable in light of clearly established law.” Ford v. Moore,
237 F.3d 156, 162 (2d Cir. 2001). “[A] court may grant [summary] judgment if it is
clear—after viewing the facts in the light most favorable to plaintiff—that
reasonable law enforcement officers could have disagreed about whether
defendants’ conduct violated the law.” Ozga v. Elliot, 150 F. Supp. 3d 178, 189 (D.
Conn. 2015).

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In this case, Defendant Madore conducted a traffic stop of Plaintiff’s vehicle.
The parties dispute whether Defendant Belair punched Plaintiff during the traffic
stop. [Dkt. 112-4 at ¶ 13; Dkt. 126-3 at 52:2-13; Dkt. 137-3 at 52:2-13]. There is thus
a genuine issue of material fact as to whether Plaintiff was struck by Defendant
Belair. It is clearly established that a person has a right not to be struck without
provocation or justification by a police officer. Abujayyab v. City of New York, No.
15 CIV. 10080 (NRB), 2018 WL 3978122, at *8 (S.D.N.Y. Aug. 20, 2018) (“[F]reedom
from the use of excessive force has long been a clearly established constitutional
right, and that right is violated when an individual is ‘punched in the face without
provocation’ by a police officer.”). Therefore, as the Court held in its order denying
Defendants’ Motions for Summary Judgment on June 1, 2017, there is a genuine
issue of material fact as to whether Defendant Belair struck Plaintiff and Defendant
Belair is not entitled to qualified immunity. [Dkt. 94 at 9-10].
Defendants had Plaintiff’s vehicle towed from the scene because he did not
have a valid driver’s license. [Dkt. 112-3 at 54:19-24; Dkt. 126-3 at 54:19-24; Dkt.
127-6 at ¶ 8; Dkt. 137-3 at 54:19-24]. Defendants did not offer Plaintiff a ride home
or summon medical care. [Dkt. 112-3 at 59:19-24, 61:6-19; Dkt. 127-7 at 59:19-24,
60:18-61:19; Dkt. 126-3 at 59:19-24; Dkt. 137-7 at 59:19-24]. The parties do not
dispute that Defendant Belair left the scene as a tow truck operator was handing
Plaintiff a business card. [Dkt. 112-4 at ¶ 16; Dkt. 126-3 at 54:15-24; Dkt. 137-7 at
54:15-24]. The parties also do not dispute that Plaintiff exhibited no injuries. [Dkt.
112-3 at 57:20-24, 59:2-6; Dkt. 127-7 at 107:4-108:25; Dkt. 137-3 at 57:20-24, 59:2-6].
Assuming Defendant Belair did strike Plaintiff, the relevant inquiry is whether

11

Plaintiff’s right to a ride home and medical care after being assaulted by Defendant
Belair was clearly established such that it is “beyond debate” that the Defendants
acted unreasonably in light of existing precedent. al-Kidd, supra, 563 at 741.
Viewing the facts in the light most favorable to Plaintiff, the Court finds that
reasonable law enforcement officers could have disagreed about whether
Defendants’ conduct violated the law. The Court has not found, and the parties
have not identified, any existing Supreme Court or Second Circuit precedent that
clearly establishes Plaintiff’s constitutional rights to a ride home or medical
attention.
During his deposition, Plaintiff admitted he was bleeding inside his mouth
only, that he concealed his injury from the officers by swallowing the blood until
he was walking home and the Defendant officers had left the scene, and that he did
not ask for medical attention. [Dkt. 112-3 at 57:2-59:24; Dkt. 126-3 at 57:2-59:24; Dkt.
127-7 at 57:2-61:13, 107:4-108:25; Dkt. 137-3 at 57:2-59:24].2 The only evidence that
they may have perceived him to have been impaired is a statement in the internal
affairs report to the effect that the Defendants observed Plaintiff stumbling. As
noted above, there can frequently be a range of responses to a given situation that

2

Plaintiff's Memorandum contradicts this admission by stating Plaintiff was bleeding profusely at
the scene of the incident and citing to Plaintiff’s deposition. [Dkt. 126 (Pl.’s Mem. of Law in Opp’n
to Def. Belair’s Renewed Summ. J. Mot.) at 2; Dkt. 137 (Pl.’s Mem. of Law in Opp’n to Defs. Madore,
Howley and Katkocin’s Renewed Summ. J. Mot.) at 2]. Plaintiff does not make that statement in his
deposition. Instead, the following colloquy appears: “A. [S]o I was swallowing my blood. I raise
my hand to my lips because I feel I was bleeding already. Q. Okay. So were you raising your hand
to your lips because you were bleeding? A. Yes. . . . Q. Do you recall previously stating to the police
officers and Lieutenant Lopes that you were bleeding a lot, and it was bleeding all down your face
and onto your clothing? A. Yeah. When I started walking home, I couldn't – when I was walking
home, I couldn't swallow more blood, and then I started bleeding on my pants and in my jacket that
I had on. When I opened my jacket, I got some blood on my shirt, too.” [Dkt. 112-3 at 57:20-59:6;
Dkt. 126-3 at 57:20-59:6; Dkt. 127-7 at 57:20-59:6; Dkt. 137-7 at 57:20-59:6].

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competent officers may reasonably think are lawful. See Walczyk v. Rio, supra. An
objectively reasonable and competent officer could have perceived Plaintiff to be
stumbling not because he was injured, but because he was walking over slippery
snow.3 Indeed, it is more likely that a reasonably objective officer would perceive
an evidently unimpaired pedestrian stumbling as they walked through a snow
storm to be stumbling because the snow was slippery not because they were
injured. Plaintiff cites a variety of cases, but none of them clearly establish the
right of an individual with no discernable injury to medical assistance or a ride after
their vehicle is impounded.
The fact that an internal affairs investigation concluded that Defendants
violated police department policy does not deprive Defendants of qualified
immunity for several reasons. First, a finding made in hindsight and upon
contemplation is not the context of a qualified immunity analysis. Second, the
purpose of the internal affairs investigation was not to determine objectively
whether the officers acted reasonably under the circumstances. Finally, an internal
police department policy is not a clearly established law.
With regard to state created danger, Plaintiff cites two out of circuit cases
and argues that they were both “based on the existence of a special relationship
between the state and the victim.” As an initial matter, this authority is not
controlling; more crucially, it is not persuasive. This argument misses a crucial
point in Second Circuit case law. In discussing Wood v. Ostrander, the Second
Circuit stated, as does Plaintiff, that it “seems to rely on the existence of a special

The conditions were slippery: “Q . Okay. So as you approached the stop sign, if I understand you,
then you tried to stop the car, and it skidded? A. Yes.” [Dkt. 126-3 at 30:3-24; Dkt. 137-3 at 30:3-24].
3

13

relationship between the state and the victim. Some courts have, indeed,
incorporated the ‘special relationship’ criterion as a prerequisite to liability. We,
by contrast, treat special relationships and state created dangers as separate and
distinct theories of liability.” Pena, 432 F.3d 109. Plaintiff did not make a claim for
a violation of his Fourteenth Amendment rights on a theory of special relationship.
Even had he done so, Defendants would be entitled to qualified immunity
because there was no special relationship and the cases cited by Plaintiff do not
clearly establish Plaintiff’s constitutional right to a ride home or medical care after
he was punched by Defendant Belair. Plaintiff cited Cooper v. City of Hartford, with
no argument as to why it is analogous to the facts of this case. No. CIV A 3:07-CV823JCH, 2009 WL 2163127, at *4 (D. Conn. July 21, 2009). Indeed, it is not. In
Cooper, the Court found that a patently and seriously injured individual was
involuntarily in police custody and thus, he had a special relationship with the
police. Id. at *14. There the police officers intercepted Good Samaritans who were
transporting the victim of a fatal gunshot wound to the hospital. Id. at *2. The
officers seized the victim, did not proceed to the hospital with haste and the victim
expired before receiving treatment. Id. at *2-3. Because of that special relationship,
the police had an affirmative duty to protect him. Id. In contrast to the case at bar,
the victim in Cooper was unquestionably injured, unable to ambulate, was in police
custody and was prevented from receiving treatment. Here Plaintiff was never in
custody. His person was not seized, his vehicle was impounded. Furthermore,
Plaintiff concealed his injury and was able to walk well enough to travel on foot one
mile to his home. Obviously, the officers did not know for certain that he would

14

arrive home safely, but the fact that he did is evidence that an objective officer
might reasonably perceive him to be able to do so. Thus, no special relationship
can be said to have been created even if Defendant Belair did strike Plaintiff.
With regard to deliberate indifference to medical need, Plaintiff appears to
argue that the right to care is clearly established because the Supreme Court held
in City of Revere v. Mass. Gen. Hosp. that the due process clause “require[s] the
responsible government or governmental agency to provide medical care to
persons . . . who have been injured while being apprehended by police.” 463 U.S.
239, 244 (1983). In that case, police responded to a report of an active breaking
and entering, wounded the suspect, and called for an ambulance. Id. at 240. The
suspect received care and the case involved a dispute between the hospital and
the city over who should pay the costs. Id. at 241. This case is inapplicable
because, unlike the present circumstances, it involved a pretrial detainee. Id. at
244-45.4 Plaintiff cites additional cases describing deliberate indifference to
medical needs for pretrial detainees and prisoners, but none of these cases finds
that individuals like Plaintiff, who was not a pretrial detainee, have a clearly
established constitutional right to medical treatment after being struck by a police
officer.

The same analysis applies to Plaintiff’s citation of Garcia v. Dutchess County because
the individual in question was arrested. 43 F. Supp. 3d 281, 287-88. The court found that
it was “clearly established in 2010 that once [the officer] knew [the arrestee] was not
breathing, [the officer] had a constitutional obligation to ensure . . . [he] received adequate
medical care.” Id. at 300. As the undisputed record reflects, Plaintiff had no visible
injuries. Moreover, unlike an arrestee who had no ability to ability to care for himself while
in custody, Plaintiff was free to leave and seek care. Instead, Plaintiff went home and went
to sleep. [Dkt. 112-3 at 61:24-62:14; Dkt. 127-7 at 61:24-62:14].
4

15

For these reasons, the Court cannot find that Defendants actions, although
inimical to the police department’s purpose to assure public safety and likely to
undermine public trust in law enforcement, were objectively unreasonable in light
of existing precedent. Therefore, Defendants’ Motions for Summary Judgment are
GRANTED on the grounds that Defendants are entitled to qualified immunity.
B.

§1983 Claims for Violation of Fourteenth Amendment Rights

As explained above, all of the Defendants are entitled to qualified immunity.
However, assuming arguendo that Defendants were not entitled to qualified
immunity, the Court finds that there is no genuine dispute of material fact and
Defendants are entitled to judgment as a matter of law on Plaintiff’s claim that they
deprived him of his Fourteenth Amendment rights in violation of Section 1983 by
(1) creating a risk of harm to him under a state-created danger theory and (2) acting
with deliberate indifference to his medical need.
1.

State Created Danger

A Section 1983 claim for violation of an individual’s Fourteenth Amendment
rights under a theory of state created danger may exist when “the state
affirmatively creates a danger that results in the likelihood of physical harm or
death.” Hirsch v. New York, No. 18-0405, 2018 WL 4846523, at *2 (2d Cir. Oct. 4,
2018) (citing Okin v. Vill. Of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 419
(2d Cir. 2009). A plaintiff must also demonstrate that the government action was
“so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Cty. Of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8.

In these

exceptional circumstances, the state may have a constitutional obligation to

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provide protection. See Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d
Cir. 1993) (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
198 (1989)). However, this duty only arises when the state takes an affirmative
action. “A failure to interfere when misconduct takes place, and no more, is not
sufficient to amount to a state created danger.” Pena, 432 F.3d at 110.
The Second Circuit defines state created danger liability as “aris[ing] from
the relationship between the state and the private assailant.” Id. at 109. For
example, the Second Circuit has found that liability may exist under a state created
danger theory where plaintiff alleged that police told “skinheads” attending a rally
that the police would not interfere with or arrest the skinheads for assaulting any
flag-burners and where police returned a firearm to a robbery victim and agreed to
bring the victim to the scene of the robber’s arrest where he shot the robber.
Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (overruled on other
grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163 (1993)) and Hemphill v. Schott, 141 F.3d 412, 418-20 (2d Cir. 1999); see
also Snider v. Dylag, 188 F.3d 51, 55 (2d Cir. 1999) (reversing dismissal of a § 1983
action where prison guard allegedly told inmates it was “open season” on another
inmate who was subsequently assaulted); see also Pena, 432 F.3d 98, 111 (holding
that defendant officers engaged in affirmative conduct constituting state action
when they implicitly sanctioned drinking while on duty).
Here, Plaintiff’s Section 1983 claim under a state created danger theory fails
as a matter of law because the undisputed facts demonstrate that there was no
affirmative conduct by Defendants that created a dangerous situation which

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harmed Plaintiff. There was no affirmative act by which Defendants sanctioned the
conduct of a private assailant. Okin, 577 F.3d 415, 429 (2d Cir. 2009) (“The
affirmative conduct of a government official may give rise to an actionable due
process violation if it communicates, explicitly or implicitly, official sanction of
private violence.”). Defendants failed to offer Plaintiff a ride home after he was
assaulted by Defendant Belair and his car was towed. He walked approximately
one mile home in winter weather conditions. [Dkt. 126-14 at 9-10, 13]. Defendants’
actions were against their department protocol, however their failure to act does
not constitute a state created danger. Unlike the examples cited above, in this
action Defendants did not create a danger to Plaintiff by sanctioning or facilitating
harm to him from a private actor.
Plaintiff cites Pena v. DePrisco in an attempt to argue that Defendant Belair
took affirmative action against Plaintiff by punching him and Defendants Madore,
Katkocin and Howley are liable, even without affirmative action, for failure to offer
Plaintiff a ride home. In Pena, the court held that liability can arise where state
officials communicate, even implicitly, prior assurances to private individuals that
they will not be punished or interfered with when engaging in misconduct that is
likely to endanger others. 432 F.3d at 111. Pena is distinguishable for the reasons
set forth above. There was no harm to Plaintiff from a private actor. Second,
Defendants Madore, Katkocin and Howley’s conduct was a failure to act—not an
implicit sanction of private misconduct. As Pena expressly stated, “failure to
interfere when misconduct takes place, and no more, is not sufficient to amount to
a state created danger.” Id. at 110.

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Even if Defendants’ conduct could constitute affirmative state action, the
Court does not find that it shocks the conscience. “Government action resulting
in bodily harm is not a substantive due process violation unless ‘the government
action was ‘so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.’” Pena, 432 F.3d at 112; see also Lombardi v. Whitman,
485 F.3d 73, 81 (“In order to shock the conscience and trigger a violation of
substantive due process, official conduct must be outrageous and egregious under
the circumstances.”) (internal citation omitted). The facts of this case are not
egregious. The Supreme Court has recognized that deliberate indifference can
also support a substantive due process claim where the situation allowed time for
reflection as opposed to an emergency situation: “Deliberate indifference that
shocks in one environment may not be so patently egregious in another, and our
concern with preserving the constitutional proportions of substantive due process
demands an exact analysis of circumstances before any abuse of power is
condemned as conscience shocking.” Lewis, 523 U.S. at 850.
Under these circumstances, Defendants’ conduct does not rise to the level
of shocking to the conscience or deliberate indifference. It is undisputed that
Plaintiff was not severely injured. Indeed, Plaintiff himself stated that he did not
seek medical care after the incident because he thought it was “not a big injury.”
[Dkt. 112-3 at 63:19-20; Dkt. 127-7 at 63:19-20]. Although Plaintiff should not have
had to endure Defendants’ treatment of him that evening, their behavior does not
rise to the level of shocking the conscience. After Defendant Belair struck Plaintiff,
Defendants allowed Plaintiff to walk home. However, Plaintiff exhibited no signs

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of injury. [Dkt. 112-3 at 57:20-24, 59:2-6; Dkt. 127-7 at 57:20-24, 59:2-6, 107:4108:25]. Plaintiff was not bleeding on the outside of his face. [Dkt. 127-7 at 58:822, 107:4-108:25]. Plaintiff did not request medical treatment. Id. at 60:18-61:1.
Plaintiff did not request a ride home. [Dkt. 126-3 at 128:2-8; Dkt. 127-7 at 61:6-19;
Dkt. 137-3 at 128:2-8]. There is no claim that Plaintiff was dizzy, disoriented or
suffering from a concussion after the punch. Because the Plaintiff did not exhibit
any signs of injury, lived only one mile away from the scene of the incident and
was able to walk steadily enough to get home safely, the Court finds that
Defendants’ failure to give Plaintiff a ride home or summon medical assistance
does not shock the conscience or exhibit deliberate indifference.
For these reasons, Defendants’ Motions for Summary Judgment as to
Plaintiff’s Section 1983 claim for violation of his Fourteenth Amendment rights on
a theory of state created danger are GRANTED.
2.

Deliberate Indifference to Medical Needs

Defendants argue that they did not act with deliberate indifference to
Plaintiff’s medical needs. Both parties cite cases setting forth the standard for
deliberate indifference to medical needs for pretrial detainees. But, as Defendants
correctly state and this Court previously found, Plaintiff was not a pretrial detainee.
Therefore, the cases the parties cite are inapplicable. Plaintiff’s claim, however,
should be analyzed according to relevant substantive due process case law.
For the same reasons set forth above with regard to Plaintiff’s state created
danger theory, Plaintiff’s claim for deliberate indifference to medical needs must
also fail. The undisputed facts show that there was no affirmative government

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action by Defendants which assisted in creating or increasing a danger to Plaintiff
from a private actor. Kaya v. City of New London, No. CIV.A. 3:05-CV-1436J, 2008
WL 220745, at *9 (D. Conn. Jan. 25, 2008) (“The problem with the plaintiff’s
argument is that the requirement of conscience-shocking behavior is a
requirement that must be met in addition to the requirement of affirmative
government action. . . . Having failed to meet the latter requirement, it is irrelevant
whether or not the plaintiffs can meet the former.”).
Moreover, as described above, Plaintiff did not exhibit signs of an injury
after he was assaulted by Defendant Belair, thus Defendants’ failure to offer
Plaintiff a ride home or summon medical assistance is not shocking to the
conscience or deliberately indifferent to his medical needs. Therefore, Defendants’
Motions for Summary Judgment as to Plaintiff’s Section 1983 claim for violation of
his Fourteenth Amendment rights on a theory of deliberate indifference to medical
needs are GRANTED.
V.

Conclusion

For the foregoing reasons, the Court GRANTS Defendants’ Motions for
Summary Judgment. [Dkts. 112, 127].
IT IS SO ORDERED.
/s/
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: November 9, 2018

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