Sweet v. Hartford et al

Filing 72

RULING (see attached) granting in part and denying in part Defendants City of Hartford and Rovella's 50 Motion for Summary Judgment; and granting in part and denying in part Defendants Fancher, Corvino, and Reeder's 51 Motion for Summary Judgment. Consistent with the attached Ruling, the parties are directed to file a joint trial memorandum in the form required by this Court's Standing Order Regarding Trial Memoranda in Civil Cases on or before July 9, 2018. Signed by Judge Charles S. Haight, Jr. on 5/24/2018. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

JEFFREY SWEET,
Plaintiff,

Civil Action No.
3:15-CV-00553 (CSH)

v.
CITY OF HARTFORD, JAMES C.
ROVELLA, GARRETT FRANCHER,
GREGORY CORVINO, CHRISTOPHER
REEDER, JOHN DOE #1, JOHN DOE #2,
JOHN DOE #3, JOHN DOE #4, JOHN DOE
#5, JOHN DOE #6,

MAY 24, 2018

Defendants.

RULING ON SUMMARY JUDGMENT MOTIONS
HAIGHT, Senior District Judge:
Plaintiff Jeffrey Sweet brings this action pursuant to 42 U.S.C. § 1983 against the City of
Hartford, Police Chief James Rovella, Officer Garrett Fancher,1 Officer Gregory Corvino, Officer
Christopher Reeder, and John Does #1-6, alleging violations of his Fourth Amendment rights.
Plaintiff also alleges that the Defendants committed several state law torts, and asserts claims under
state law for municipal liability.
Plaintiff's claims arise from an incident that occurred on October 13, 2013, in Hartford,
Connecticut. Plaintiff was forcibly removed from his vehicle by the police and arrested on several
charges.

1

The docket and caption reflect an incorrect spelling of this Defendant's name. The Court
will adopt the correct spelling, Fancher, and directs the Clerk to amend the caption accordingly.
-1-

As a result of this incident, Plaintiff asserts federal constitutional claims against the officers
Fancher, Corvino, and Reeder (collectively, the "Officer Defendants") under section 1983 for
unreasonable seizure and for failure to intervene. The Complaint also alleges claims under the
common law for assault and battery, intentional infliction of emotional distress, false arrest,
recklessness, negligence, and negligent infliction of emotional distress. Additional claims are
asserted against Chief Rovella for failure to supervise, and for municipal liability against the City
of Hartford ("City").
The Officer Defendants, Chief Rovella, and the City have moved for summary judgment on
Plaintiff's claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motions have
been opposed, and are ripe for consideration. This Ruling resolves them.
I. STANDARD OF REVIEW
A motion for summary judgment shall 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must
"demonstrate the absence of any material factual issue genuinely in dispute" to be entitled to
summary judgment. Am. Int'l Grp., Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981)
(quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)) (quotation
marks omitted). All inferences and ambiguities must be viewed in the light most favorable to the
nonmoving party. Rogoz v. City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015).
"In order to defeat a summary judgment motion that is properly supported by affidavits,
depositions, and documents as envisioned by [Rule 56], the opposing party is required to come
forward with materials envisioned by the Rule, setting forth specific facts showing that there is a
-2-

genuine issue of material fact to be tried." Gottlieb v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir.
1996). The non-moving party 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." Id. (citations omitted). In other words, "[w]hen the moving party has carried its burden
under Rule 56[], its opponent must do more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The nonmoving party "must present specific evidence demonstrating a genuine dispute."
Gannon v. UPS, 529 F. App'x 102, 103 (2d Cir. 2013) (citing Anderson, 477 U.S. at 248). "An issue
of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. A fact is material if it might affect the outcome of the suit under the governing
law." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quotation
marks and citation omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
("Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.").
II. FACTUAL BACKGROUND
The following undisputed or indisputable facts are derived from the parties' submissions
pursuant to Local Rule 56(a); the uncontroverted deposition testimony; and the affidavits and
exhibits attached to the parties' submissions. All reasonable inferences have been drawn in Plaintiff's
favor.
During the time relevant to this action, Plaintiff was a resident of the City of Hartford, a
municipality of the State of Connecticut. Defendants Fancher, Corvino, and Reeder were employed
-3-

as police officers by the City. James Rovella was the City Chief of Police. See Plaintiff's Local Rule
56(a)2 Statement of Facts in Opposition to Summary Judgment, Doc. 68-1 ¶¶1-6.
On October 13, 2013, at around 7:00 p.m., Plaintiff met friends at a sports bar in downtown
Hartford. Id. ¶8. After dinner, at approximately 9:30 p.m., he proceeded to drive home alone. Id. ¶10;
April 5, 2017, Deposition Testimony of Jeffrey Sweet, Doc. 51-1 at 64. Plaintiff drove west on
Farmington Avenue. Doc. 68-1 ¶11. Before turning right on Sigourney Street, Plaintiff noticed lights
in his rearview mirror; he did not see them again after making the turn. Doc. 51-1 at 67. He then
made a left turn on Niles Street, a left onto Woodland, and a left into the parking lot of his apartment
building at 30 Woodland Street. Doc. 68-1 ¶11.
As Plaintiff was traveling home, Officers Fancher, Corvino and Reeder were together in a
police vehicle, driving southbound on Woodland Street. Id. ¶¶28-9. Corvino was operating the
vehicle. Id. ¶33. A dispatch came over the radio, indicating that an officer in the area had attempted
to stop a silver or grey SUV last seen traveling westbound on Niles Street. August 27, 2017,
Deposition of Greg C. Corvino, Doc. 51-1 at 178. Officer Corvino then observed a vehicle that
matched that description, turning left from Niles Street onto Woodland Street. Id. at 175-76. Corvino
attempted to catch up with the vehicle. Id. at 180. He did not operate the police car's lights or sirens.
Id. Corvino followed Plaintiff's vehicle to 30 Woodland Street, pulling up and stopping behind
Plaintiff's parked car. Doc. 68-1 ¶33.
After parking his car in a spot at 30 Woodland Street, Plaintiff saw lights and people coming
towards his car. Doc. 51-1 at 70. Fancher and Corvino approached the front driver's side of Plaintiff's
vehicle. Doc. 51-1 at 78. Corvino had his service weapon drawn. Id. Reeder approached and opened
the door on the passenger's side of Plaintiff's vehicle. Doc. 68-1 ¶40. While Plaintiff was still sitting
-4-

in the driver's seat, Fancher punched him in the face. Id. ¶71-2; Police Report, Doc. 51-1 at 243.
Plaintiff was then pulled from his vehicle by the officers and was brought to the ground. Doc. 51-1
at 72. He was handcuffed and arrested. Id. ¶17.
Plaintiff claims to have suffered injuries as a result of the incident. Doc. 51-1 at 84. Plaintiff
did not request medical attention at the time of his arrest. Doc. 68-1 ¶19. This arrest was the only
time that Plaintiff had been arrested by the Hartford police. Id. ¶23.
The parties' account of the events differs in several respects, not recounted above. The parties
dispute whether Plaintiff was operating the car recklessly prior to bringing the vehicle to a stop in
the parking lot of 30 Woodland Street. Plaintiff relies on his own deposition testimony and his
affidavit to rebut the Officer Defendants' testimony and the police report. The parties also dispute
whether the officers said anything to Plaintiff upon exiting their vehicle in the parking lot, whether
Plaintiff resisted the officers, whether Plaintiff was subjected to any force beyond the blow to his
face, and the extent of his injuries. Finally, the parties dispute whether Plaintiff was aware that he
was interacting with the police – as opposed to civilians – prior to being pulled from the vehicle.
III. DISCUSSION
Pending before the Court are two motions for summary judgment: one on behalf of the
Officer Defendants, and one on behalf of the City and Chief Rovella.
As an initial matter, Plaintiff concedes that he cannot prevail on several counts, and therefore
"does not object to summary judgment" on the claims alleged against Chief Rovella for failure to
supervise, and on the claim alleged against the Officer Defendants for false arrest. Accordingly,
summary judgment will be granted on those claims. Further, Plaintiff recognizes that the City cannot
be liable for punitive damages; therefore, Defendant City's motion for summary judgment on
-5-

Plaintiff's prayer for punitive damages will be granted. I will now consider the other dispositive
motions.
A.

Officers' Motion for Summary Judgment [Doc. 51]
1.

Excessive Force2

Plaintiff alleges that the Officer Defendants used an unreasonable and excessive amount of
force during the course of his arrest on October 13, 2013. The Officer Defendants move for summary
judgment on Plaintiff's section 1983 claim of excessive force on the grounds of qualified immunity.
In opposing Defendants' motion, Plaintiff argues that a material issue of fact exists as to whether the
officers' use of force was reasonable. Plaintiff contends that the parties' conflicting versions of the
incident warrant denial of the motion.
Section 1983 provides a private right of action for monetary damages from government
officials, who, acting "under color" of law, have violated an individual's federal statutory rights, or
constitutional rights and privileges. 42 U.S.C. § 1983; Annis v. Cty. of Westchester, 136 F.3d 239,
245 (2d Cir. 1998). Qualified immunity operates to shield government officials from such liability,
where "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, 818 (1982) (citations
omitted). Thus, a police officer may be entitled to qualified immunity if: "(1) his conduct does not
2

Plaintiff's Complaint labels Count I as a claim of "unreasonable seizure" and seeks
recovery pursuant to section 1983. Doc. 1. "A complaint need only 'give the defendant fair notice
of what the plaintiff's claim is and the grounds upon which it rests.'" Amron v. Morgan Stanley
Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir. 2006) (quoting Swierkiewicz v. Sorema N.A., 534
U.S. 506, 513 (2002)).The facts alleged in Plaintiff's Complaint lead the Court – and Defendants
– to read Count I as alleging a claim of excessive force, in violation of Plaintiff's Fourth
Amendment prohibition against unreasonable seizures.

-6-

violate a clearly established constitutional right, or (2) it was objectively reasonable for the officer
to believe his conduct did not violate a clearly established constitutional right." Hartline v. Gallo,
546 F.3d 95, 102 (2d Cir. 2008) (quotation marks and citation omitted). "Because qualified immunity
affords immunity from suit rather than a mere defense to liability, it is usually invoked before trial.
Where, however, immunity depends on disputed facts, the availability of that shield may be
determinable only after trial." O'Hara v. City of New York, 570 F. App'x 21, 23 (2d Cir. 2014)
(quotation marks, citation, and emphasis omitted).
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend.
IV. Where a claim of excessive force "arises in the context of an arrest or investigatory stop of a free
citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment,
which guarantees citizens the right to be secure in their persons against unreasonable seizures of the
person." Graham v. Connor, 490 U.S. 386, 394 (1989) (quotation marks and citation omitted); see
also Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1547 (2017) ("An excessive force claim
is a claim that a law enforcement officer carried out an unreasonable seizure through a use of force
that was not justified under the relevant circumstances."). "It is well established that the use of force
is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness."
Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003) (quotation marks and citation omitted).
This objective standard allows for split-second judgments—circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary
in a given situation. It allows even for a certain degree of mistake. If an officer
reasonably, but mistakenly, believed that a suspect was likely to fight back, for
instance, the officer would be justified in using more force than in fact was needed.
Santana v. City of Hartford, 283 F. Supp. 2d 720, 727 (D. Conn. 2003) (quotation marks and
citations omitted).
-7-

"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."
Graham, 490 U.S. 396 (quotation marks and citation omitted). "In conducting that balancing, [the
Court is] guided by consideration of at least three factors: (1) the nature and severity of the crime
leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of the officer
or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by
flight." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham, 490 U.S. at 396); see
also Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000) ("The force used by the officer must be
reasonably related to the nature of the resistance and the force used, threatened, or reasonably
perceived to be threatened, against the officer."). "If the force used was unreasonable and excessive,
the plaintiff may recover even if the injuries inflicted were not permanent or severe." Robison v. Via,
821 F.2d 913, 924 (2d Cir. 1987).
The Court agrees with Defendants' contention that Reeder is entitled to summary judgment
on Plaintiff's excessive force claim because he had no physical contact with Plaintiff. The undisputed
evidence establishes that Reeder did not subject Plaintiff to force, let alone force that can be deemed
excessive. The surveillance video of the incident unequivocally shows that Reeder did not come into
contact with Plaintiff during the incident. On the video, Reeder is seen exiting the front passenger
door of the police vehicle, approaching the passenger's side of Plaintiff's vehicle, and opening the
door. As Plaintiff emerges from the driver's side of his car, he is surrounded by other officers and
is brought to the ground. During this time, Reeder can be seen standing apart, at a distance of several
feet. Plaintiff offers no admissible evidence to refute this account, or evidence that identifies Reeder
-8-

as one of the officers who "manhandled" or punched him after he was removed from his vehicle.
"It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994) (quotation marks and citation omitted); see also McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (same). The indisputable evidence before this Court
does not support a reasonable conclusion that Reeder participated in the use of force against Plaintiff.
Accordingly, Reeder is entitled to summary judgment on the excessive force claim.
However, the same conclusion cannot be reached with regard to Plaintiff's claims against
Fancher and Corvino. Plaintiff contends that without provocation or justification, he was subjected
to a blow to his face by Fancher, was dragged out of his vehicle, and was manhandled and punched
repeatedly. Defendants contend that the force used by Corvino and Fancher was reasonable, given
the fact that Plaintiff had been driving erratically; that he ignored commands to surrender; and that
he actively resisted arrest by struggling against the officers and by clutching his seat belt to avoid
being removed from the car. But by both his testimony and his affidavit, Plaintiff plainly disputes
Defendants' account that he had been non-compliant and resisting arrest. See Doc. 51-1 at 254-6; see
also Doc. 68-9 ¶¶9,10. Plaintiff also denies that he was driving recklessly prior to his interactions
with the police, and states that he was unaware that the police were following his vehicle. See Doc.
68-9 ¶¶4,7. These Defendants indisputably had some level of physical contact with Plaintiff. The
contrasting accounts of both Plaintiff's and Defendants' conduct present genuine factual issues that
preclude determination of the objective reasonableness of the force used by these officers. A

-9-

reasonable jury could find that the use of force was objectively unreasonable.3
The Second Circuit has stated that "at least in some excessive force cases the various parts
of the [qualified immunity] analysis ultimately converge on one question: Whether in the particular
circumstances faced by the officer, a reasonable officer would believe that the force employed was
lawful." Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 n.7 (2d Cir. 2003). "Although
a conclusion that the defendant official's conduct was objectively reasonable as a matter of law may
be appropriate where there is no dispute as to the material historical facts, if there is such a dispute,
the factual questions must be resolved by the factfinder." Kerman v. City of New York, 374 F.3d 93,
109 (2d Cir. 2004) (citations omitted); see also Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002)
("Where the circumstances are in dispute, and contrasting accounts present factual issues as to the
degree of force actually employed and its reasonableness, a defendant is not entitled to judgment as
a matter of law on a defense of qualified immunity." (quotation marks and citation omitted)).
Crediting Plaintiff's account that he was lawfully operating his vehicle in a responsible
manner, that the officers did not identify themselves or issue any commands, and that he did not
resist in any way, the use of force here would be objectively unreasonable. See O'Hara, 570 F. App'x
at 24 (affirming the denial of qualified immunity on an excessive force claim where it was alleged
that "unarmed, non-menacing" plaintiff was punched by an officer in the face without provocation
and then punched repeatedly after he fell to the ground); see also Graham v. City of New York, 928
F. Supp. 2d 610, 619 (E.D.N.Y. 2013) (finding that the forcible removal of an nonviolent individual
3

Although the Supreme Court has made it clear that the Court may exercise its "sound
discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand," Pearson v. Callahan,
555 U.S. 223, 236 (2009), there is no question that the right at issue in this case – to be free from
excessive force – was clearly established at the time of the incident.
-10-

from a vehicle for suspected traffic violations can constitute an unreasonable use of force (collecting
cases)). Although Defendants purport to rely on "the facts viewed in the light most favorable to
Plaintiff," Doc. 51-1 at 1 n.1, the argument advanced as to their entitlement to qualified immunity
is founded on the contention that Plaintiff was struck "to obtain compliance" and that "Plaintiff
ignored commands to surrender and struggled when Officer Fancher attempted to remove him from
the vehicle, by holding on to the driver's side seat belt." Id. at 12. This is hardly Plaintiff's version
of the events; Plaintiff both testified and affirmed that he had not heard any commands from the
police, nor had he resisted the officers. These assertions, made under oath, clearly create a genuine
dispute.
Viewing the facts in a manner most favorable to Plaintiff, no reasonable officer would
believe that Fancher and Corvino were justified in punching this law-abiding individual in the face,
forcibly pulling him from his car, and then subjecting him to an additional assault in bringing him
to the ground to be restrained. For this reason, and because the Court "cannot grant summary
judgment based on its assessment of the credibility of the evidence presented," Rogoz, 796 F.3d at
246 (quotation marks and citation omitted), Defendants are not entitled to summary judgment on the
basis of qualified immunity. Accordingly, viewing the facts in the light most favorable to Plaintiff,
and acknowledging that there are genuine issues of fact in dispute, Defendants' motion for summary
judgment on the basis of qualified immunity with respect to Plaintiff's Fourth Amendment excessive
force claim against Fancher and Corvino will be denied.
2.

Failure to Intervene

Plaintiff also asserts a claim for failure to intervene against each of the Officer Defendants.
"A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose
-11-

constitutional rights are being violated in his presence by other officers." O'Neill v. Krzeminski, 839
F.2d 9, 11 (2d Cir. 1988) (collecting cases); see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994) ("It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law enforcement
officers in their presence." (collecting cases)). "Liability attaches on the theory that the officer, by
failing to intervene, becomes a tacit collaborator in the illegality." Figueroa v. Mazza, 825 F.3d 89,
106 (2d Cir. 2016) (quotation marks omitted) (citing O'Neill, 839 F.2d at 11-12).
Liability for failure to intervene "may attach only when (1) the officer had a realistic
opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would
know that the victim's constitutional rights were being violated; and (3) the officer does not take
reasonable steps to intervene." Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008)
(citation omitted), aff'd sub nom., Jean-Laurent v. Wilkerson, 461 F. App'x 18 (2d Cir.
2012)."Whether an officer had sufficient time to intercede or was capable of preventing the harm
being caused by another officer is an issue of fact for the jury unless, considering all the evidence,
a reasonable jury could not possibly conclude otherwise." Anderson, 17 F.3d at 557 (citation
omitted).
Here, the Officer Defendants argue that as a matter of law, the circumstances did not present
sufficient time for any of the officers to intervene to prevent harm to Plaintiff. In response, Plaintiff
submits the surveillance video of the incident as evidence that each officer had a realistic opportunity
to intervene, stating that there was "at least a six second interval before Fancher opened the driver's
side door to punch the Plaintiff in the face." Doc. 68 at 8.
In declining to endorse a bright-line rule regarding the amount of time in which one could
-12-

reasonably intervene in an assault, the Second Circuit has stated:
Failure-to-intervene claims can arise out of a limitless variety of factual
circumstances. In each case, the question whether a defendant had a realistic chance
to intercede will turn on such factors as the number of officers present, their relative
placement, the environment in which they acted, the nature of the assault, and a
dozen other considerations. Among these considerations, of course, the assault's
duration will always be relevant and will frequently assume great importance. But
this does not permit distillation of a hard-and-fast temporal cutoff . . . . Instead, courts
must evaluate each case on its own facts, keeping in mind that circumstances other
than an assault's duration might bear significantly on an officer's ability to stop it
from happening. The essential inquiry is whether, under the circumstances actually
presented, an officer's failure to intervene permits a reasonable conclusion that he
became a tacit collaborator in the unlawful conduct of another.
Figueroa, 825 F.3d at 107–08 (quotation marks and citations omitted).
Taking into account all of the circumstances and viewing them in a light most favorable to
Plaintiff, the Court cannot say as a matter of law that there was no opportunity for the officers to
intercede in the use of force. The surveillance video of the incident establishes that approximately
twenty seconds elapsed between the officers' first contact with Plaintiff and the time he was brought
to the ground. It is possible that a jury, crediting Plaintiff's version of the events, may find that
Corvino or Fancher had a small opportunity to prevent each others' use of force. Further, a
reasonable jury could find that Reeder failed to intervene after the initial blow, when Plaintiff was
on the ground, allegedly being subjected to additional force from Corvino and Fancher, and other
unidentified officers.
Accordingly, the motion for summary judgment on the failure to intervene claims will be
denied.

-13-

3.

State Law Claims
a.

Assault and Battery

Under Connecticut law, assault is "defined as the intentional causing of imminent
apprehension of harmful or offensive contact with another." Germano v. Dzurenda, No. 09-CV1316(SRU), 2011 WL 1214435, at *22 (D. Conn. Mar. 28, 2011) (quotation marks omitted) (quoting
Dewitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594 (1985)). "[A]n actor is subject
to liability for battery [under Connecticut law] if (a) he acts intending to cause harmful or offensive
contact with the person of the other or a third person, or an imminent apprehension of such a contact,
and (b) a harmful contact with the person of the other directly or indirectly results." Germano, 2011
WL 1214435, at *22 (quoting Alteiri v. Colasso, 168 Conn. 329, 334 n.3 (1975))."Except for §
1983's requirement that the tort be committed under color of state law, the essential elements of
[section 1983] excessive force and state law assault and battery claims are substantially identical."
Humphrey v. Landers, 344 F. App'x 686, 688 (2d Cir. 2009) (quotation marks and citation omitted).
Here, the Court has concluded that there are unresolved issues of fact as to whether the force
used by Corvino and Fancher was objectively reasonable. The Court has also determined that there
is no evidence that Reeder applied any amount of force to Plaintiff. Accordingly, the Defendants'
motion for summary judgment as to the claim of assault and battery with respect to Fancher and
Corvino will be denied, but will be granted with respect to Reeder.
b.

Intentional Infliction of Emotional Distress

In Connecticut, to assert a claim for intentional infliction of emotional distress, a plaintiff
must establish four elements: "(1) that the actor intended to inflict emotional distress; or that he
knew or should have known that the emotional distress was a likely result of his conduct; (2) that
-14-

the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the
plaintiff's distress; and (4) that the distress suffered by the plaintiff was severe." Miner v. Town of
Cheshire, 126 F. Supp.2d 184, 194 (D. Conn. 2000) (quoting Petyan v. Ellis, 200 Conn. 243, 253
(1986)); see also DeLaurentis v. New Haven, 220 Conn. 225, 266-67 (1991). Liability for intentional
infliction of emotional distress has been found only where the conduct in question is "so extreme and
outrageous that it goes beyond all possible bounds of decency, is regarded as atrocious, is utterly
intolerable in a civilized society, and is of a nature that is especially calculated to cause, and does
cause, mental distress of a very serious kind." Miner, 126 F. Supp.2d at 194.
Defendants contend that they are entitled to summary judgment on this claim, as the conduct
of each officer could not, as a matter of law, be described as "extreme and outrageous." The Court
disagrees. Crediting Plaintiff's version of the events, without identifying himself as a police officer,
Corvino approached Plaintiff's parked car with his firearm drawn, and attempted to forcibly remove
Plaintiff from his vehicle. Fancher then approached Plaintiff and punched him in the head, without
any provocation. Fancher and Corvino, along with other unidentified officers, then proceeded to yank
Plaintiff from his car, and hit him while he was on the ground. Reeder watched the events unfold and
failed to intervene. A reasonable jury could find that such conduct was extreme and outrageous.
Further, summary judgment on a claim for intentional infliction of emotional distress is often
denied where the court has already determined that there is a disputed issue of fact surrounding the
conduct associated with the claim. See, e.g., Zadrowski v. Town of Plainville, No.
3:09-CV-1367(DJS), 2013 WL 5435491, at *13 (D. Conn. Sept. 30, 2013) (denying summary
judgment with respect to a claim for intentional infliction of emotional distress where, inter alia, the
court had found that there were material issues of fact as to whether the officers' use of force was
-15-

reasonable (collecting cases)); Betancourt v. Slavin, 676 F. Supp. 2d 71, 81 (D. Conn. 2009) (same,
noting that "[b]ecause summary judgment was denied on plaintiff's excessive force claim, the Court
cannot grant summary judgment on the intentional infliction of emotional distress claim"); Frappier
v. City of Waterbury, No. 3:07-CV-1457(WWE), 2008 WL 4980362, at *3 (D. Conn. Nov. 20, 2008)
(same); Clark v. Dowty, No. 3:05-CV-1345(WWE), 2007 WL 2022045, at *14 (D. Conn. July 9,
2007) (same). See also McKelvie v. Cooper, 190 F.3d 58, 63 (2d Cir. 1999) (finding that the
existence of genuine issues of material fact precluded summary judgment on the plaintiff's claim for
intentional infliction of emotional distress alleged under Connecticut law).
Accordingly, Defendants' motion for summary judgment on the intentional infliction of
emotional distress claim will be denied.
d.

Negligent Infliction of Emotional Distress and Negligence

Defendants seek summary judgment on Plaintiff's negligence-based tort claims, on two
grounds. First, Defendants argue, because the physical contact between Plaintiff and Corvino and
Fancher was minimal, and constitutionally permissible, a claim for negligent infliction of emotional
distress cannot lie. Second, Defendants contend that they are entitled to governmental immunity with
respect to the negligence-based claims against them, pursuant to Conn. Gen. Stat. § 52-557n, as the
acts complained of required the exercise of discretion.
To state a claim for negligent infliction of emotional distress in Connecticut, a plaintiff must
show that: "(1) The defendant's conduct created an unreasonable risk of causing the plaintiff's
emotional distress; (2) The plaintiff's distress was foreseeable; (3) The emotional distress was severe
enough that it might result in illness or bodily harm; and (4) The defendant's conduct was the cause
of the plaintiff's distress." Doe, 453 F. Supp. 2d at 554.
-16-

The Court has already concluded that material issues of fact prevent summary judgment on
Plaintiff's excessive force and failure to intervene claims; Plaintiff's negligent infliction of emotional
distress claim is based on the same conduct. Thus, Defendants' first argument falls short. However,
Defendants raise an immunity defense, which the Court will now examine.
Conn. Gen. Stat. § 52-557n provides:
(a) (1) Except as otherwise provided by law, a political subdivision of the state shall
be liable for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent thereof
acting within the scope of his employment or official duties; (B) negligence in the
performance of functions from which the political subdivision derives a special
corporate profit or pecuniary benefit; and (C) acts of the political subdivision which
constitute the creation or participation in the creation of a nuisance; provided, no
cause of action shall be maintained for damages resulting from injury to any person
or property by means of a defective road or bridge except pursuant to section
13a-149. (2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by: (A) Acts or
omissions of any employee, officer or agent which constitute criminal conduct, fraud,
actual malice or wilful misconduct; or (B) negligent acts or omissions which require
the exercise of judgment or discretion as an official function of the authority
expressly or impliedly granted by law.
Conn. Gen. Stat. § 52-557n(a).
Generally, a municipal employee is liable for the misperformance of ministerial acts,
but has a qualified immunity in the performance of governmental acts. Governmental
acts are performed wholly for the direct benefit of the public and are supervisory or
discretionary in nature. In contrast, ministerial refers to a duty which is to be
performed in a prescribed manner without the exercise of judgment or discretion.
Spears v. Garcia, 263 Conn. 22, 36 (2003) (citations omitted). Thus, pursuant to Connecticut law,
a municipal employee may be entitled to immunity for negligence in the performance of official
duties, if the act complained of was discretionary, rather than ministerial, in nature. And "[i]t is
well-settled that the acts or omissions of police officers in the exercise of their duties are
discretionary in nature." Gothberg v. Town of Plainville, 148 F. Supp. 3d 168, 189 (D. Conn. 2015)
-17-

(citation omitted).
However, three exceptions exist to discretionary act immunity: (1) "where the circumstances
make it apparent to the public officer that his or her failure to act would be likely to subject an
identifiable person to imminent harm"; (2) "where a statute specifically provides for a cause of action
against a municipality or municipal official for failure to enforce certain laws"; and (3) "where the
alleged acts involve malice, wantonness or intent to injure, rather than negligence." Id. (quotation
marks and citation omitted). Here, Plaintiff appears to acknowledge that Defendants' acts were
discretionary in nature, but argues that the first exception – the "imminent harm" exception – applies
in these circumstances.
Courts in this District have routinely applied the imminent harm exception in the context of
a case in which excessive force is alleged. See, e.g., Conroy v. Caron, 275 F. Supp. 3d 328 (D. Conn.
2017) (in a case alleging excessive force, denying summary judgment on immunity grounds based
on the existence of genuine issues of fact); Bussolari v. City of Hartford, No. 3:14-CV-00149(JAM),
2016 WL 4272419, at *4 (D. Conn. Aug. 12, 2016) (same); Carey v. Maloney, 480 F. Supp. 2d 548,
560 (D. Conn. 2007) (same); Galindez v. Miller, 285 F. Supp. 2d 190, 195 (D. Conn. 2003) (same).
Here, a genuine fact issue exists as to whether the imminent-harm exception applies with respect to
Defendants' conduct towards Plaintiff. Viewing the evidence in the light most favorable to Plaintiff,
he was clearly identified to Defendants; and Defendants were public officials who were aware that
their conduct would likely result in imminent harm to Plaintiff. Accordingly, Defendants' motion for
summary judgment as to Plaintiff's claims of negligence and negligent infliction of emotional
distress must be denied.

-18-

e.

Recklessness

Defendants also contend that they are entitled to summary judgment on Plaintiff's common
law claim of recklessness.
One is guilty of reckless misconduct when knowing or having reason to know of facts
which would lead a reasonable person to realize that the actor's conduct not only
creates an unreasonable risk of bodily harm to the other but also involves a high
degree of probability that substantial harm will result to him. Such recklessness is a
state of consciousness with reference to the consequences of one's acts and is more
than negligence, more than gross negligence. The state of mind amounting to
recklessness may be inferred from conduct. Specifically, reckless conduct tends to
take on the aspect of highly unreasonable conduct, involving an extreme departure
from ordinary care and must be more than any mere mistake resulting from
inexperience, excitement, or confusion, and more than mere thoughtlessness or
inadvertence, or simply inattention.
Zadrowski , 2013 WL 5435491, at *9 (internal quotation marks, citations, and alterations omitted).
Defendants' argument for judgment as a matter of law on Plaintiff's recklessness claim is
based on the theory that the Defendants' actions and conduct were "constitutionally permissible."
Doc. 51-1 at 31. As the Court has already found that there are genuine issues of fact as to the
reasonableness of the officers' use of force and failure to intervene, the determination of whether
such conduct was reckless is a question best determined by the jury. Accordingly, Defendants'
motion for summary judgment as to the claim of recklessness will be denied.
B.

City of Hartford's Motion for Summary Judgment [Doc. 50]
1.

Monell Liability

Defendant City of Hartford seeks summary judgment on Plaintiff's claim of municipal
liability under section 1983. In support of its motion, the City advances two distinct arguments. First,
it contends that without evidence that Plaintiff's constitutional rights were violated by a City
employee, there can be no municipal liability. However, the Court has already concluded that there
-19-

are material issues of fact as to Plaintiff's excessive force and failure to intervene claims;
accordingly, this argument is without merit.
Second, the City argues that summary judgment is appropriate, as Plaintiff has adduced no
evidence of a municipal custom, policy, or practice that would establish liability on behalf of the City
for any violation of Plaintiff's constitutional rights. The City contends that one incident is insufficient
to establish municipal liability under section 1983 on either a failure to train or a failure to supervise
theory, and that Plaintiff has not identified a policymaker that would be responsible for such conduct.
In response, Plaintiff argues that a factual dispute surrounds the adequacy of the City's training and
supervision of the Defendant Officers. In line with that argument, Plaintiff cites to cases which he
contends show that a single instance of force could support an inference of deliberate indifference.
It is well established that under section 1983, municipalities cannot be held liable for their
employees' torts on a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658,
691 (1978). It is only "where the municipality itself causes the constitutional violation at issue. . .
. [W]hen the execution of the government's policy or custom inflicts the injury that the municipality
may be held liable under § 1983." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)
(quotation marks and citations omitted). Thus, to hold a municipality liable under section 1983, a
plaintiff must establish that the deprivation of his rights under federal law was caused by a municipal
policy, custom, or usage. Monell, 436 U.S. at 690-91; Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir. 2012).
[I]solated acts of excessive force by non-policymaking municipal employees are
generally not sufficient to demonstrate a municipal custom, policy, or usage that
would justify municipal liability. On the other hand, such acts would justify liability
of the municipality if, for example, they were done pursuant to municipal policy, or
were sufficiently widespread and persistent to support a finding that they constituted
-20-

a custom, policy, or usage of which supervisory authorities must have been aware,
or if a municipal custom, policy, or usage would be inferred from evidence of
deliberate indifference of supervisory officials to such abuses. A plaintiff alleging
that she has been injured by the actions of a low-level municipal employee can
establish municipal liability by showing that a policymaking official ordered or
ratified the employee's actions—either expressly or tacitly. Thus, a plaintiff can
prevail against a municipality by showing that the policymaking official was aware
of the employee's unconstitutional actions and consciously chose to ignore them. A
municipal policymaking official's "deliberate indifference" to the unconstitutional
actions, or risk of unconstitutional actions, of municipal employees can in certain
circumstances satisfy the test for a municipal custom, policy, or usage that is
actionable under Section 1983.
Jones, 691 F.3d at 81 (internal citations and footnote omitted).
"In limited circumstances, a local government's decision not to train certain employees about
their legal duty to avoid violating citizens' rights may rise to the level of an official government
policy for purposes of § 1983." Connick v. Thompson, 563 U.S. 51, 61 (2011). However, "[a]
municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a
failure to train." Id. The failure of the municipality to train "must amount to deliberate indifference
to the rights of persons with whom the untrained employees come into contact. Only then can such
a shortcoming be properly thought of as a city policy or custom that is actionable under § 1983." Id.
(quotation marks and citation omitted).
The deliberate indifference standard "requires a showing that the official made a conscious
choice, and was not merely negligent." Id. (collecting cases).
To establish deliberate indifference for a failure train or supervise claim, the plaintiff
must show (1) that a policymaker knows to a moral certainty that her employees will
confront a given situation; (2) that the situation either presents the employee with a
difficult choice of the sort that training or supervision will make less difficult or that
there is a history of employees mishandling the situation; and (3) that the wrong
choice by the . . . employee will frequently cause the deprivation of a citizen's
constitutional rights.

-21-

Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (quotation marks omitted)
(quoting Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992)).
"A pattern of similar constitutional violations by untrained employees is ordinarily necessary
to demonstrate deliberate indifference for purposes of failure to train." Connick, 563 U.S. at 62
(quotation marks and citation omitted). That requirement exists because "[w]ithout notice that a
course of training is deficient in a particular respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations of constitutional rights." Id.
Further, at the summary judgment stage, "a plaintiff must establish . . . that defendant breached its
duty to act by failing to make meaningful efforts to address the risk of harm to plaintiffs," by, for
example, "providing evidence that [a] training program was actually inadequate," or by showing
evidence of "repeated complaints . . . followed by no meaningful attempt to investigate or forestall
incidents." Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citations omitted).
Here, Plaintiff alleges that the City is liable because it failed to supervise and failed to train
its employees. Plaintiff argues that the single incident that caused Plaintiff's injuries was "unusually
brutal or egregious" such as to establish deliberate indifference, and the very fact that the incident
occurred is evidence that the officers' training and supervision was deficient. See Doc. 58 at 5.4
4

"Proof of a single incident of unconstitutional activity is not sufficient to impose
liability under Monell, unless proof of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). However, courts
have noted that in limited circumstances, a single act may be sufficient to permit an inference of
a municipality's deliberate indifference, for Monell purposes. In Turpin v. Mailet, 619 F.2d 196,
202 (2d Cir. 1980), the Second Circuit stated that
absent more evidence of supervisory indifference, such as acquiescence in a prior
pattern of conduct, a policy could not ordinarily be inferred from a single incident of
illegality such as a first arrest without probable cause or with excessive use of force.
However, a single, unusually brutal or egregious beating administered by a group of
-22-

Plaintiff points to the Officer Defendants' prior police training, and contends that such a program was
meant to prepare officers to deal with situations such as the one at hand, "[y]et, despite their
additional training, these officers, with no justification," assaulted Plaintiff. Doc. 68 at 5.
In making this argument, Plaintiff, relying in large part on Amnesty Am.v. Town of West
Hartford, 361 F.3d 113 (2d Cir. 2004), conflates his claims of inadequate supervision and failure to
train. However, the Second Circuit in Amnesty America made clear that these are two distinct
theories of deliberate indifference, which "emphasize different facts and require different showings,"
and thus they "must be analyzed independently, rather than evaluated collectively." Amnesty Am.,
361 F.3d at 127 (footnote omitted). The Amnesty America opinion notes,
While a failure to supervise claim requires allegations as to the violation itself and
policymakers' reaction to it, a failure to train claim also requires evidence as to the
city's training program and the way in which that program contributed to the
violation. Moreover, in the context of a failure to supervise case, deliberate
indifference may be established by showing that policymaking officials deliberately
ignored an obvious need for supervision. In the failure to train context, on the other
hand, plaintiffs must establish that the officials consciously disregarded a risk of
future violations of clearly established constitutional rights by badly trained
employees.
Amnesty Am, 361 F.3d at 127 n.8 (citations omitted).

municipal employees may be sufficiently out of the ordinary to warrant an inference
that it was attributable to inadequate training or supervision amounting to deliberate
indifference or "gross negligence" on the part of officials in charge.
Turpin, 619 F.2d 196, 202 (2d Cir. 1980) (citations omitted). Plaintiff relies on this discussion in
Turpin, as referenced in Amnesty America, to argue that an inference of a deficient training
program can be made. The Court does not need to reach this argument, as Plaintiff's Monell
claim is unsupported for other reasons, as discussed infra. However, the Court does note that it
does not believe that this incident would be characterized as the unusually brutal or egregious
beating the Turpin court contemplated as a potential exception to the general rule. See Schnauder
v. Gibens, 679 F. App'x 8, 10 (2d Cir. 2017) (noting that the extreme use of force might be
sufficient to allow a factfinder to infer deliberate indifference by policymakers (emphasis
added)).
-23-

Here, Plaintiff does not present any evidence – nor does he make any argument – that would
support municipal liability under a failure to supervise claim. Instead, Plaintiff's opposition focuses
on the theory that the City failed to properly train its officers. As Plaintiff has not met his burden of
producing evidence to support his claim against the City on a failure to supervise theory, that claim
cannot survive summary judgment.
Nor can Plaintiff prevail on a failure to train claim, as no evidence has been produced that
would demonstrate that a deficiency in City's training program gave rise to his injuries. For a finding
of municipal liability under a theory of inadequate training, Plaintiff must establish that "the
deficiency in training actually caused" the ultimate injury. City of Canton, 489 U.S. at 391. See also
Amnesty Am., 361 F.3d at 129–30 ("[P]laintiffs must establish that the officer's shortcomings resulted
from a faulty training program rather than from the negligent administration of a sound program or
other unrelated circumstances." (quotation marks and citation omitted)). Without giving any
indication of how the City's training program was deficient, and how that deficiency actually caused
the constitutional deprivation, Plaintiff argues that the simple fact that this incident occurred is – on
its own – evidence that the City's training was inadequate.
"City of Canton unequivocally requires . . . that the factfinder's inferences of inadequate
training and causation be based on more than the mere fact that the misconduct occurred in the first
place." Amnesty Am., 361 F.3d at 130. Plaintiff must also do more than "prove that an injury or
accident could have been avoided if an officer had had better or more training, sufficient to equip
him to avoid the particular injury-causing conduct." City of Canton, 489 U.S. at 391. Plaintiff cannot
prevail on a failure-to-train theory without coming forward with evidence as to how the training
program was deficient, and evidence as to how such a deficiency caused the Officer Defendants to
-24-

use unreasonable force. Plaintiff has not even attempted to make such a showing here. Indeed,
Plaintiff contends that the officers actually received specialized training, but "despite their additional
training," the incident occurred. This argument is not sufficient to support a finding of liability of
the City under the standards of Monell.
In sum, Plaintiff cannot establish a "direct causal link between the municipal policy or
custom, and the alleged constitutional violation." City of Canton, 489 U.S. at 385. As Plaintiff has
failed to put forward evidence that would justify imposition of liability on the City under section
1983, the City of Hartford's motion for summary judgment on Monell liability will be granted.
2.

State Law Claims against the City of Hartford
a.

Conn. Gen. Stat. § 52-557n and Conn. Gen. Stat. § 7-465

Plaintiff alleges that the City is liable for the officers' actions, pursuant to Conn. Gen. Stat.
§ 52-557n, and seeks indemnification under Conn. Gen. Stat. § 7-465. The City seeks summary
judgment on these claims on the basis that it is immune from liability under state law, pursuant to
Conn. Gen. Stat. § 52-557n; that Plaintiff's failure to plead an exception to the doctrine of
governmental immunity is fatal to Plaintiff's claims against the City; and that it does not have a duty
to indemnify the Officer Defendants for willful acts under Conn. Gen. Stat. § 7-465.
Conn. Gen. Stat. § 52-577n(a)(1)(A) "imposes vicarious liability on municipal employers for
the negligent acts of their employees." McKinney v. City of Middletown, 712 F. App'x 97, 98 (2d Cir.
2018). Although the City contends that it is entitled to immunity, a genuine issue of fact exists as to
whether the imminent harm exception applies here, as discussed supra. Accordingly, Plaintiff's
negligence-based claims against the Officer Defendants survive, as does Plaintiff's claim for
municipal liability, under section 52-557n. The City's argument regarding Plaintiff's pleading
-25-

deficiencies does not require a different result. See Calhoun v. Murtha, No. 3:15-CV-1358(WWE),
2018 WL 460973, at *2 (D. Conn. Jan. 17, 2018) (rejecting the City's identical argument, noting that
while Connecticut state practice rules may impose such a pleading requirement on a plaintiff, the
Federal Rules of Civil Procedure, applicable here, do not contain special pleading requirements for
immunity-related claims).
The City also seeks summary judgment on the claim for indemnification, pursuant to Conn.
Gen. Stat. § 7-465.5 This section "allows a plaintiff to seek indemnity from a municipality based
upon the actions of a municipal employee within the scope of his municipal employment." Jones v.
City of Hartford, 285 F. Supp. 2d 174, 190 (D. Conn. 2003).
The City argues that where the alleged conduct that forms the basis for Plaintiff's claims is
willful and intentional, Plaintiff's negligence claims, based on the same conduct, must fail. Under
the City's proffered approach, summary judgment should be granted on Plaintiff's negligence claims,
leaving the City with no duty to indemnify under section 7-465.
I do not find such reasoning persuasive. Plaintiff may pursue claims sounding in both
negligence and intentional torts at the same time, and in the alternative. See Fed. R. Civ. P. 8(d)
(allowing pleading in the alternative and the pleading of "separate claims . . . , regardless of
consistency"). While it is true that some courts in this District have not permitted such claims to go
5

Conn. Gen. Stat. § 7-465 states, in relevant part, that the City
shall pay on behalf of any employee . . . all sums which such employee becomes
obligated to pay by reason of the liability imposed upon such employee by law for
damages awarded for infringement of any person's civil rights or for physical
damages to person or property, except as set forth in this section, if the employee, at
the time of the occurrence, accident, physical injury or damages complained of, was
acting in the performance of his duties and within the scope of his employment, and
if such occurrence, accident, physical injury or damage was not the result of any
wilful or wanton act of such employee in the discharge of such duty.
-26-

forward simultaneously, see, e.g., Edwards v. City of Hartford, No. 3:13-CV-878(WWE), 2015 WL
7458501, at *4 (D. Conn. Nov. 23, 2015), others have recently examined and overwhelmingly
rejected the premise upon which the City here relies. See, e.g., Alvia v. City of Waterbury, No.
3:15-CV-1162(RNC), 2018 WL 1587459, at *7 (D. Conn. Mar. 31, 2018) (allowing negligence and
intent-based claims regarding the same conduct to proceed simultaneously to trial); Gomez v. City
of Norwalk, No. 3:15-CV-1434(MPS), 2018 WL 780213, at *8 (D. Conn. Feb. 8, 2018) (same);
Olschafskie v. Town of Enfield, No. 3:15-CV-67(MPS), 2017 WL 4286374, at *8 (D. Conn. Sept.
27, 2017) (same); Conroy v. Caron, 275 F. Supp. 3d 328, 355 (D. Conn. 2017) (same); Marsh v.
Town of E. Hartford, No. 3:16-CV-928(SRU), 2017 WL 3038305, at *7 (D. Conn. July 18, 2017)
(same); Jackson on Behalf of Z.J. v. City of Middletown, No. 3:11-CV-00725(JAM), 2017 WL
2218304, at *7 (D. Conn. May 19, 2017) (same); Bussolari v. City of Hartford, No.
3:14-CV-00149(JAM), 2016 WL 4272419, at *3 (D. Conn. Aug. 12, 2016) (same).
In Bussolari, Judge Meyer considered and rejected the same argument that the City advances
here. I will quote Judge Meyer's opinion at length:
It is well established that a plaintiff may plead alternative theories of liability. See
Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims or defenses as it
has, regardless of consistency.”). The Second Circuit allows a party to proceed at
summary judgment with inconsistency in claims, either in the statement of the facts
or in the legal theories adopted. And it is similarly well established that a party may
properly submit a case to a jury on alternative theories.
In light of this background, I see no reason why a plaintiff may not pursue claims
against police misconduct by means of both intentional and negligent theories of
liability.
It is true that some other judges in the District of Connecticut have dismissed claims
of negligence at summary judgment that have been brought alongside § 1983 claims
alleging excessive force.

-27-

Those decisions . . . that have disallowed simultaneous intentional/negligent tort
claims in this context have not elaborated on their reasoning other than to cite the fact
of prior court rulings. They rely in part on cases applying New York law that appears
to be different from Connecticut law. The case that is most often cited by Connecticut
federal courts for the proposition that § 1983 and negligence claims are incompatible
is based on an interpretation of New York law that finds no cause of action for
negligence on the part of a police officer when making an arrest.
By contrast, it appears that Connecticut law allows for claims of negligence against
police officers, including for negligent arrest and use of force. . . . Ultimately, I do
not need to decide whether there is a distinction between the common law of New
York and Connecticut. In view that defendants' argument here is simply that the
negligence claims must fail because of their inconsistency with the intentional tort
claims (rather than a claim that Connecticut law does not allow for negligence claims
at all in the excessive force context), my principal concern is the baseline rule that
a plaintiff is generally permitted to plead and prove his or her case on alternative and
sometimes inconsistent theories of liability. I do not see why a special exception to
this general rule should or must exist for claims of intentional and negligent police
misconduct in the excessive force context.
Bussolari, 2016 WL 4272419, at *3–4 (quotation marks, citations and footnotes omitted). Judge
Meyer held that
genuine fact issues remain to allow a jury to consider whether the defendant officers
are liable for intentional torts or negligent torts. Furthermore, the record before me
suggests that there are genuine issues of material fact that are properly left to a jury
regarding how defendants—and plaintiff—acted during the arrest. It is best left upon
a full trial record for a properly instructed jury to decide if plaintiff has established
the elements of any of his claims, and if so, whether the facts presented suffice for
a claim of a constitutional tort of excessive force . . . and/or some form of intentional
or negligent tort under common law (provided, of course, that plaintiff may not
obtain double recovery under alternative theories that are based on the same conduct
and harm).
Id. at *4 (citation omitted).
The situation presented in the instant matter is identical to that in Bussolari. I agree with my
colleague's reasoning and conclusion, and find that Plaintiff's negligence-based claims may exist
concurrently with his intent-based claims. Should a jury find the Officer Defendants liable for

-28-

negligence based conduct, the City may ultimately be responsible for indemnification. Accordingly,
the City's motion for summary judgment on this basis will be denied.
IV. CONCLUSION AND ORDER
For the foregoing reasons, Defendants Fancher, Corvino, and Reeder's Motion for Summary
Judgment, Doc. 51, is GRANTED IN PART and DENIED IN PART; and Defendant City of
Hartford and Rovella's Motion for Summary Judgment, Doc. 50, is GRANTED IN PART AND
DENIED IN PART. Specifically, summary judgment is granted on Plaintiff's claim of false arrest;
on Plaintiff's claim of excessive force under section 1983 against Defendant Reeder; on Plaintiff's
claim of assault and battery against Defendant Reeder; on Plaintiff's claims against Defendant
Rovella; on Plaintiff's claim for municipal liability under section 1983 against the City of Hartford;
and on Plaintiff's claim for punitive damages against the City of Hartford. The parties are directed
to file a joint trial memorandum in the form required by this Court's Standing Order Regarding Trial
Memoranda in Civil Cases on or before July 9, 2018.
It is SO ORDERED.
Dated: New Haven, Connecticut
May 24, 2018

/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

-29-