Ramos v. East Hartford et al
Filing
189
ORDER granting in part and denying in part 125 Motion for Summary Judgment and 126 Motion for Summary Judgment as set forth in the attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 7/2/2019. (Lindberg, Christina)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILSON RAMOS, As Administrator
of The Estate of Jose A.
Maldonado, and Individually,
Plaintiff,
v.
TOWN OF EAST HARTFORD et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
No. 3:16-CV-166 (VLB)
July 2, 2019
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [DKTS. 125, 126]
Plaintiff Wilson Ramos (“Ramos”), as administrator of the Estate of his
deceased brother Jose A. Maldonado (the “Estate” or “Maldonado”), and
individually, brings this action against the Town of East Hartford and Officers
Jason Kaplan, James Lis, Jason Cohen, and Chief Scott Sansom (collectively,
“Defendants”). Plaintiff brings various state and federal claims stemming from the
fatal altercation he observed between Maldonado and Defendants Kaplan, Lis, and
Cohen on April 13, 2014.
Before the Court are two motions for summary judgment. Defendants Town
of East Hartford, Lis, Cohen, and Sansom filed a Motion for Summary Judgment
(“Defendants’ Motion for Summary Judgment”). See [Dkt. 126 (Mot. for Summ. J.)].
Defendant Kaplan filed a separate Motion for Summary Judgment (“Defendant
Kaplan’s Motion for Summary Judgment”). See [Dkt. 125 (Def. Jason Kaplan’s Mot.
for Summ. J.)]. For the following reasons, the Court GRANTS IN PART AND DENIES
IN PART Defendants’ Motion for Summary Judgment and Defendant Kaplan’s
Motion for Summary Judgment.
I.
Factual Background1
On April 12, 2014, Ramos and Maldonado attended a party and Maldonado
drank beer and cognac to the point of intoxication. They left early because
Maldonado was so intoxicated. [Dkt. 126-5 (Ramos Dep.) at 44:21-25, 49:16-52:6].
Ramos and Maldonado were half-siblings. Id. at 10:2-8. Ramos had never seen
Maldonado as drunk as he was that night. Id. at 43:24-44:1.
While Ramos and Maldonado were walking towards Ramos’s car, a vehicle
occupied by Angel Arroyo, Liz Bigio, and three children stopped, and an argument
ensued during which Maldonado punched and shattered the glass of the driver’s
side window. Id. at 62:19-64:23; see also [Dkt. 126-6 (Bigio Dep.) at 18:8-13]; [Dkt.
126-7 (Arroyo Dep.) at 16:23-25]. Ms. Bigio called the police and Sergeant Lis was
the first to arrive on the scene alone. [Dkts. 126-5 at 69:22-70:6; 126-6 at 38:16-26;
126-8 (Lis Dep.) at 54:7-19]. Sergeant Lis spoke with Ms. Bigio and observed
damage to her vehicle. [Dkt. 126-8 at 54:7-23]. Ms. Bigio pointed to Ramos and
Maldonado and stated that one of them broke her window. Id.
Sergeant Lis approached Ramos and Maldonado and observed Ramos
pushing Maldonado into the passenger seat of a motor vehicle. [Dkt. 126-5 at 70:1871:14]. Sergeant Lis instructed Ramos to move away from the vehicle, so he could
speak to Maldonado, but Ramos refused. [Dkt. 126-8 at 57:8-16]. At his deposition,
The facts are taken from the parties’ Local Rule 56(a) Statements and the exhibits
submitted in support of and in opposition to Defendants’ Motion for Summary Judgment
and Defendant Kaplan’s Motion for Summary Judgment.
1
-2-
Ramos admitted he heard Sergeant Lis’s command, but could no longer recall what
Lis said. [Dkt. 126-5 at 71:5-8]. Ramos admitted he did not comply with Sergeant
Lis’s command and told Lis to wait until he got Maldonado fully into the vehicle.
[Dkts. 126-5 at 116; 132-6 (Ramos Aff.) at ¶ 4; 126-8 at 57:3-58:25, 71:1-20]. After
Ramos got Maldonado into the vehicle, he turned around and Sergeant Lis sprayed
him with pepper spray. [Dkts. 126-5 at 71:1-4; 132-6 at ¶ 4; 126-8 at 56:21-57:23].
Ramos claims he did not have a chance to acknowledge Sergeant Lis’s command
voluntarily because he was pepper sprayed almost immediately after the
command. [Dkts. 132-3 (Ramos Dep.) at 72:13-18; 132-6 at ¶ 4]. Sergeant Lis, with
the help of Officer Miller who arrived on the scene, handcuffed Ramos and brought
him to the ground. [Dkts. 126-8 at 59:3-10; 132-3 at 72:24-73:6].
Next, Sergeant Lis turned to Maldonado who was walking towards him with
clenched fists and saying, “Fuck you, motherfucker.” [Dkt. 126-8 at 59:22-60:11].
Sergeant Lis struck him in the face. Id. Then, Officer Parlapiano arrived, sprayed
Maldonado with pepper spray, and both officers brought Maldonado into custody.
Id. at 60:12-13. Once Maldonado was handcuffed, he continued to resist and try to
pull away. [Dkt. 126-10 (Cohen Dep.) at 65:21-24, 66:16-22].
Ramos did not see
this interaction between Maldonado and the officers because he was handcuffed
and face down on the ground. [Dkt. 132-3 at 74:15-75:11]. Officers Parlapiano and
Cohen observed Sergeant Lis struggling to take Maldonado into custody. [Dkts.
126-9 (Parlapiano Dep.) at 16:5-19; 126-10 at 62:24-63:2]. Mr. Arroyo and Ms. Bigio
also observed that the officers had a hard time controlling Maldonado. [Dkts. 1266 at 37:2-23; 126-7 at 22:12-21]. Mr. Arroyo described Maldonado like “a bullet
-3-
going everywhere” and Ms. Bigio described him as “The Hulk.” [Dkts. 126-6 at
37:2-23; 126-7 at 25:1-20].
After he was handcuffed, the officers observed that Maldonado was
intoxicated and continued to be uncooperative. [Dkts. 126-8 at 71:18-24; 126-10 at
65:12-66:22; 126-11 (Kaplan Dep.) at 133:21-134:12]. He struggled during the pat
down and refused to get into the police cruiser. [Dkts. 126-8 at 75:8-12; 126-11 at
133:24-134:6]. Ramos was compliant with the officers for the remainder of the night
and no additional force was used. [Dkt. 126-8 at 66:9-21]. Maldonado and Ramos
were put in separate police cruisers and transported to the East Hartford Police
Department headquarters by Officers Kaplan and Cohen, respectively. [Dkts. 12610 at 70:5-8; 126-11 at 145:9-19]. Maldonado was spitting at Officer Kaplan during
the transport, but Ramos was transported without incident. [Dkt. 126-11 at 145:1217].
Upon arrival at the headquarters, Officers Kaplan and Cohen brought
Maldonado to the eyewash decontamination area in the booking room to let him
rinse his eyes, but he refused. [Dkt. 126-10 at 72:2-12; 126-11 at 145:20-147:6].
Plaintiff disputes that Maldonado refused, but he cites no evidence in support of
his assertion. Officers Kaplan and Cohen then escorted Maldonado into the holding
cell inside the booking area, uncuffed him, and locked him inside the cell. [Dkts.
126-17 (Holding Cell Video); 126-10 at 73:3-5; 126-11 at 146:17-147:6]. After he was
alone in the cell, Maldonado began pacing and disrobing. [Dkt. 126-17 at 2:00:492:04:35].
-4-
Next, Officers Cohen and Kaplan escorted Ramos into the booking area and
allowed him to rinse his face in the eye decontamination area. [Dkts. 126-10 at
73:15-74:2; 126-11 at 147:11-148:10]. By this time, Sergeant Lis arrived in the
booking room. [Dkt. 126-8 at 77:21-78:5]. Maldonado had removed all of his
clothing except for his underwear and his right pant leg which was stuck around
his ankle over his shoe. [Dkt. 126-17 at 2:00:49-2:04:35]. The officers asked Ramos
if he was comfortable going into the holding cell with Maldonado and Ramos said
yes. [Dkt. 126-5 at 84:24-85:3]. Officers Kaplan and Cohen escorted Ramos to the
holding cell door and told Maldonado, who was inside the cell, to step away from
the door. Id. at 90:1-6. The officers removed Ramos’s handcuffs. Id. at 89:12-14.
One of the officers unlocked the holding cell door.
What happened during the next two minutes was captured by two cameras,
neither of which recorded audio:
Time on Camera2
2:04:36
2:04:38
2:04:39
2:04:40
2:04:41
2:04:42
Event
Maldonado begins moving towards the
door of the holding cell.
Maldonado grabs the sliding door of
the holding cell.
Maldonado pushes the sliding door of
the holding cell open and steps into the
threshold of the door.
Maldonado reaches the officers
standing immediately outside of the
sliding door of the holding cell.
Maldonado is punched and pushed
backwards towards the holding cell.
Maldonado is pushed backwards and
reenters the holding cell.
2
Two timestamps are visible on the video. The Court uses the timestamp in the upper left
corner of the video in large white text. [Dkt. 126-17].
-5-
Time on Camera2
2:04:43
2:04:44
2:04:45
2:04:46
2:04:48
2:04:49
2:04:50
2:04:51
2:04:52
2:04:53
2:04:54
Event
Maldonado struggles with the officers
who are crowded in the entrance of the
cell. Maldonado punches forward
towards the officers with his right arm.
Maldonado continued to struggle with
the officers.
While struggling with the officers,
Maldonado extends his left arm and
tries to keep Sergeant Lis at bay.
Officer Kaplan takes out his taser and
aims it at Maldonado.
Officer Kaplan takes a step forward still
aiming the taser at Maldonado.
Maldonado’s arms are bent at a ninetydegree angle. Maldonado takes a step
to the side with his left leg. He does not
appear to be advancing.
Sergeant Lis punches Maldonado in the
face with his left arm. Maldonado
doubles over, spins approximately
180º and is facing the back of the
holding cell.
Sergeant Lis pushes Maldonado from
behind towards the holding cell wall
directly opposite from the door.
Maldonado extends his arms to catch
himself. He falls forward and his head
makes contact with the wall.
Sergeant Lis runs towards Maldonado
and hovers over him.
Sergeant Lis stays near Maldonado
leaning over him.
Officer Kaplan continues to hold the
taser aimed at Maldonado. With his
other hand, he holds Ramos against
the side of the holding cell against the
cell wall.
Maldonado braces his right arm on the
floor and lifts his upper body off the
floor.
Maldonado sits on the floor with his
upper body slumped forward over his
legs.
-6-
Time on Camera2
2:04:55
2:04:56—2:04:59
2:05:00
2:05:01—2:05:03
2:05:04
2:05:05—2:05:09
2:05:09
2:05:09—2:05:16
2:05:17
2:05:17—2:05:32
2:05:33—2:05:41
2:05:42—2:05:46
2:05:47—2:05:57
2:05:57—2:06:07
2:06:08
Event
Sergeant Lis steps back from
Maldonado. Officer Kaplan holds
Ramos in the corner of the holding cell
against the wall. He continues to hold
the taser in his other hand.
Maldonado remains seated leaning
forward as his torso rocks slightly from
side-to-side.
The
officers
stand
back
from
Maldonado who is still seated and
leaning very far forward.
Sergeant Lis takes out his handcuffs
and moves towards Maldonado.
Sergeant Lis and Officer Cohen
continue to move towards Maldonado.
Sergeant Lis and Officer Cohen move
Maldonado
in
preparation
for
handcuffing him.
Sergeant Lis moves away from
Maldonado towards Officer Kaplan and
Ramos in the corner of the holding cell.
Officer Cohen moves Maldonado to his
side and begins handcuffing his wrists.
Officer Kaplan joins Officer Cohen to
assist in handcuffing Maldonado.
Officers Kaplan and Cohen pull
Maldonado’s arms behind his back and
cuff him.
Officers Kaplan and Cohen stand up
behind Maldonado.
Officer Cohen moves away from
Maldonado towards the door of the
holding cell.
All three officers are stand in a circle
around Maldonado. Ramos remains in
the corner of the holding cell.
Sergeant Lis moves towards the door
of the holding cell, but all three officers
remain in the holding cell with
Maldonado. Ramos remains in the
corner of the holding cell.
Sergeant Lis, looking at Ramos, waves
his hand towards the door of the
holding cell.
-7-
Time on Camera2
2:06:09—2:06:11
2:06:12—18
2:06:18—2:06:23
2:06:23—2:06:29
2:06:30
Event
Ramos exits the holding cell followed
by Sergeant Lis. Officers Cohen and
Kaplan move towards the door of the
holding cell.
Officer Kaplan exits the holding cell
followed by Officer Cohen.
All three officers leave the holding cell
and remain in the area outside the open
door of the holding cell.
One of the officers slides the door of
the holding cell closed.
The door of the holding cell is fully
closed. Maldonado is left alone inside
the holding cell lying on his side with
his hands cuffed behind him.
During the altercation with Maldonado, Defendant Kaplan deployed the taser
for twenty seconds. [Dkt. 132-2 (Taser Deployment Report)]. The maximum
recommended deployment time for a taser is fifteen seconds. [Dkts. 132-40 (ECW
Guidelines) at 18; 132-41 (Taser Training) at 5]. Tasing for longer than fifteen
seconds may increase the risk of serious injury or death and should be avoided.
[Dkt. 132-25 (Minor Dep.) at 110:17-25]. The taser prongs struck Maldonado in the
chest. [Dkt. 132-7 (Postmortem Examination) at 2]. Taser training warns against
targeting a person’s chest. [Dkts. 132-40 at 37; 132-41 at 4; 132-25 at 119; 132-24
at 88:3-7, 91:6-21; 132-18 at 36:6-23; 132-23 at 32:17-33:9].
Ramos washed his eyes again and afterwards he sat unhandcuffed on the
floor outside of the holding cell, approximately eight feet away from Maldonado.
[Dkts. 126-5 at 99:18-100:10, 102:21-103:5, 102:21-23; 126-8 at 113:14-19; 126-17 at
2:09:40]. Officer Parlapiano arrived and observed Maldonado lying on the floor in
the holding cell. [Dkt. 126-9 at 37:20-22]. The officers did not reenter the cell to
-8-
check on Maldonado until 2:10:34 AM–after approximately four minutes passed.
[Dkt. 126-17 at 2:10:34]. During that four-minute period, Maldonado remained lying
on the floor of the cell on his side with his hands cuffed behind his back moving
slightly every couple of seconds. The holding cell camera depicts his movements:
Time on Camera
Event
2:06:26—2:06:31
2:06:46—2:06:50
Maldonado seen moving slightly.
2:07:05—2:07:08
Maldonado seen moving slightly.
2:07:10
Maldonado seen moving slightly.
2:07:22—2:07:25
Maldonado seen moving slightly.
2:07:27—2:07:293
Maldonado seen moving slightly.
2:07:46—2:07:50
Maldonado seen moving slightly.
2:07:53
Maldonado seen moving slightly.
2:07:56—2:07:57
Maldonado seen moving slightly.
2:08:02
Maldonado seen moving slightly.
2:08:06—2:08:08
Maldonado seen moving slightly.
2:08:12
Maldonado seen moving slightly.
2:08:35
Maldonado seen moving slightly.
2:09:03
Maldonado seen moving slightly.
2:09:15
Maldonado seen moving slightly.
2:09:25
Maldonado seen moving slightly.
2:10:04—2:10:05
3
Maldonado seen moving slightly.
Maldonado seen moving slightly.
There is a gap in the video from 2:07:31 to 2:07:45. [Dkt. 126-17].
-9-
Plaintiff’s expert Dr. Robert Myerburg described these slight movements as
“gasping respirations,” which, to a trained eye, indicate that Maldonado suffered
potentially lethal brain trauma. [Dkt. 126-14 (Myerburg Dep.) at 114:12-115:9]. Dr.
Myerburg also testified that it is unlikely a police officer would not appreciate the
significance of the movements. Id. at 115:10-116:1. Dr. Myerburg testified that
while awareness that while gasping respiration was not something he was sure he
would hold a police officer to appreciate, “it does not matter because what they
didn’t do was respond to an unconscious patient.” Id. at 115:21-116:1. Defendant
Kaplan’s expert, Sergeant Henry Minor, testified that police officers are trained to
know the difference between normal breathing and agonal respiration. [Dkt. 13225 at 56:19-25].
Defendants Kaplan, Lis, and Cohen were near the holding cell throughout
the four-minute period. The holding cell is surrounded by a chain link enclosure.
The officers observed Maldonado without entering the cell several times. [Dkts.
126-16 (Booking Room Video) at 2:07:41, 2:07:49, 2:07:58-2:08:03, 2:08:37, 2:10:14].
Ramos also observed Maldonado from the outside of the holding cell door. Id. at
2:09:26. Ramos initially thought Maldonado was sleeping but became concerned
and asked the officers to check on him. [Dkt. 126-5 at 100:21-101:17].
The officers entered the cell at 2:10:34 AM. That was .29 seconds after the
last time the video depicted Maldonado moving. [Dkt. 126-17 at 2:10:34]. Prior to
that, the longest period Maldonado was still was .28 seconds between 2:08:35 and
2:09.03. [Dkt. 126-17 at 2:08:35-2:09.03].
- 10 -
The officers tried to rouse Maldonado, but they were unable to do so. [Dkt.
126-17 at 2:10:37-55]. Officer Cohen grabbed Maldonado and lifted his torso
upright. [Dkt. 126-17 at 2:11:00]. He tried to check for a pulse, but he was not sure
if he detected one. [Dkts. 126-17 at 2:11:44; 126-10 at 108:3-21].
Sergeant Lis
directed Officer Parlapiano to call for paramedics. Officer Parlapiano made the call
and requested assistance “as soon as possible.” [Dkts. 126-9 at 38:22-39:7; 126-18
(Audio Recording No. 6093498)]. Officer Parlapiano then took Ramos to a cell in
the cell block. [Dkt. 126-9 at 41:14-25]. Three minutes later, Officer Parlapiano
made a second radio call. [Dkts. 126-9 at 46:9-23; 126-19 (Audio Recording No.
609512)]. Although Officer Parlapiano did not examine Maldonado between the
first and second calls, he informed the paramedics that Maldonado was
unconscious.
[Dkt. 126-19].
None of the officers performed CPR or other
emergency medical procedures while waiting for the paramedics.
Paramedics entered the cell at 2:16:36 AM and began CPR at 2:17:57 AM.
[Dkt. 126-17]. Maldonado was eventually transferred to Hartford Hospital where he
was pronounced dead. [Dkt. 132-31 (Prehospital Care Report Summary)].
II.
Legal Standard
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). An issue is genuine
if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact
is “material” if it “might affect the outcome of the suit under the governing law.” Id.
“[T]he substantive law will identify which facts are material in a given case.”
- 11 -
Herbert Construction Co. v. Continental Ins. Co., 931 F.2d 989, 990 (2d Cir. 1991)
(quoting Anderson, 477 U.S. at 248). A material fact is one which establishes an
essential element of a claim or defense. A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). A party asserting that a fact is or is not true must present
admissible evidence to support their assertion. Fed. R. Civ. P. 56(c)(2). At the
summary judgment stage of the proceeding, “allegations alone, without
[admissible] evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals
Corp., No. 3-CV-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (citing Gottlieb
v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); see also Martinez v. Conn. State
Library, 817 F. Supp. 2d 28, 37 (D. Conn. 2011). The moving party bears the burden
of proving not only that no genuine factual disputes exist but also that it is entitled
to judgment as a matter of law because the non-moving party cannot present
admissible evidence to establish the claim. See Vivenzio v. City of Syracuse, 611
F.3d 98, 106 (2d Cir. 2010).
Where a defendant presents admissible evidence tending to show there is
no genuine issue of material fact for a jury to decide and she is entitled to judgment
as a matter of law, a plaintiff must produce admissible evidence raising a genuine
- 12 -
issue of material fact to defeat summary judgment.
Fed. R. Civ. P. 56(c).
Conclusory statements unsupported by admissible evidence, speculation,
conjecture, or surmise do not create a genuine issue of fact for a jury to decide and
will not defeat summary judgment. See Gottlieb, 84 F.3d at 518; see also Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 726-27 (2d Cir. 2010); WelchRubin, 2004 WL 2472280, at *1.
“In determining whether that burden [of showing the absence of any genuine
issue of fact] 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.” Vivenzio, 611 F.3d at 106 (citing Anderson, 477 U.S.
at 255); see also Matsushita Elec. 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 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, 2004 WL 2472280, at *1. Determinations of the weight
to accord to the evidence or assessment of the credibility of the witnesses are
improper on a motion for summary judgment as those assessments are the sole
province of the jury. See Hayes v. New York City Dep’t of Corrs., 84 F.3d 614, 619
(2d Cir 1996); see also United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994)). 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). Only where there is no
- 13 -
evidence upon which a jury could properly render 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, may
summary judgment lie.
III.
Abandoned Claims
“Federal courts may deem a claim abandoned when a party moves for
summary judgment on one ground and the party opposing summary judgment fails
to address the argument in any way.” Coltin v. Corp. for Justice Mgmt., Inc., 542 F.
Supp. 2d 197, 206 (D. Conn. 2008) (internal quotation marks omitted); see also
Olschafskie v. Town of Enfield, No. 15-CV-67, 2017 WL 4286374, at *11, n.8 (D. Conn.
Sept. 27, 2017). Plaintiff alleges numerous claims in his complaint and Defendants
moved for summary judgment on all of them. In his Motions in Opposition to
Summary Judgment, Plaintiff fails to oppose all of Defendants’ arguments.
Therefore, where noted in this decision, the Court deems certain claims abandoned
and grants summary judgment in favor of Defendants. See Ferraresso v. Town of
Granby, 646 F. Supp. 2d 296, 305 (D. Conn.
2009) (“grounds alleged in the
complaint, but not relied upon in summary judgment are deemed to be
abandoned”).
- 14 -
IV.
A.
Federal Claims
Section § 1983 Claims
In a convoluted Count One, Plaintiff alleges a bevy of different § 1983 claims
against Defendants Kaplan, Lis, and Cohen with no clear or concise indication of
which claims are alleged against which officers.4
Section 1983 provides that “any person who, acting under color of law,
‘subjects or causes to be subjected, any Citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and the laws’ of the United States shall be
liable to the injured party in actions at law.” Shattuck v. Stratford, 233 F. Supp. 2d
301, 306 (D. Conn. 2002) (quoting 42 U.S.C. § 1983). By comparing the operative
complaint and the briefing, the Court construes the operative complaint to allege
the following active claims: (1) unreasonable search and seizure by Ramos against
Defendant Lis; (2) excessive force by Ramos against Defendant Lis and by the
Estate against Defendants Kaplan, Lis, and Cohen; (3) failure to intervene by the
Estate against Defendants Kaplan, Lis, and Cohen; and (4) deliberate indifference
to medical needs by the Estate against Defendants Kaplan, Lis, and Cohen.
1.
Count 1 – Unreasonable Search and Seizure
i.
By Ramos Against Lis
Ramos alleges that Defendant Lis arrested him without probable cause or
arguable probable cause in violation of the Fourth Amendment.5 The Fourth
Plaintiff is reminded of Federal Rule of Civil Procedure 8(d) which states, “Each allegation
must be simple, concise, and direct.” Fed. R. Civ. P. 8(d).
5
In Defendants’ Motion for Summary Judgment, they address unreasonable seizure
claims based on the investigative detention of Ramos and Maldonado. In his opposition
4
- 15 -
Amendment protects individuals against “unreasonable searches and seizures.”
U.S. CONST. amend. IV. A warrantless arrest violates the Fourth Amendment unless
it is supported by probable cause. See United States v. Valentine, 539 F.3d 88, 93
(2d Cir. 2008) (internal quotation marks omitted) (“[A warrantless] arrest must be
supported by probable cause or else it violates the Fourth Amendment”).
“Probable cause to arrest a person exists if the law enforcement official, on the
basis of the totality of the circumstances, has sufficient knowledge or reasonably
trustworthy information to justify a person of reasonable caution in believing that
an offense has been or is being committed by the person to be arrested.” Id.
(quoting United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990)); see also Walczyk
v. Rio, 496 F.3d 139, 156 (2d Cir. 2007). The existence of probable cause to arrest
constitutes justification and “is a complete defense to an action for false arrest.”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v. United States,
25 F.3d 98, 102 (2d Cir. 1994)); Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002).
We consider the elements of the offense for which an individual was arrested
to assess the objective reasonableness of the officers’ belief. Lennon v. Miller, 66
F.3d 416, 424 (2d Cir. 1995). “[T]he arresting officer need not have in hand evidence
which would suffice to convict,” but an arrest “without a warrant must stand upon
firmer ground than mere suspicion.” Wong Sun v. United States, 371 U.S. 471, 479
(1963). “The validity of the arrest does not depend on whether the suspect actually
briefing, Plaintiff does not address the investigative detention argument and therefore, the
Court assumes that Plaintiff alleges only unreasonable seizure based on Ramos’s arrest.
Defendants also address an unreasonable search and seizure claim by Ramos against
Defendant Cohen and by Maldonado against Defendants Lis and Cohen. Plaintiffs do not
address these arguments in their opposition briefing. Therefore, the Court deems them
abandoned. See [Dkt. 154 (Mot. to Amend Compl.)].
- 16 -
committed a crime; the mere fact that the suspect is later acquitted of the offense
for which he is arrested is irrelevant to the validity of the arrest.” Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979).
Conn. Gen. Stat. § 53a-167a provides that “[a] person is guilty of interfering
with an officer when such person obstructs, resists, hinders or endangers any
peace officer . . . in the performance of such peace officer’s . . . duties.” CONN. GEN.
STAT. 53-167a(a). See Palmer v. Ruggiero, No. 10-CV-779, 2012 WL 3442411, at *4
(D. Conn. Aug. 14, 2012) (“Given [the plaintiff’s] failure to comply with [the officer’s]
orders to leave the area . . . probable cause existed for arresting him on a charge
of interfering with an officer”); see also Lagasse v. City of Waterbury, No. 09-CV391, 2011 WL 2709749, at *4 (D. Conn. Jul. 12, 2011) (collecting cases).
Ramos’s unreasonable search and seizure claim against Defendant Lis must
fail because his arrest for interfering with an officer was indisputably supported by
probable cause. Sergeant Lis appeared at the scene of the altercation, was
informed by the complainant that that Maldonado, Ramos, or both quarreled with
her and broke her car window while she and her children were seated inside. [Dkt.
126-8 at 54:7-23]. Sergeant Lis approached and observed Ramos pushing
Maldonado into the passenger seat of their car. [Dkts. 126-5 at 70:18-71:14; 126-8
at 56:20-57:16]. Sergeant Lis instructed Ramos to move away from the car where
Maldonado was seated. [Dkts. 126-5 at 71:9-11; 126-8 at 57:11-16]. Ramos admitted
that he heard Sergeant Lis say something, which at the time of his deposition he
could no longer recall. [Dkt. 126-5 at 71:5-8]. However, he tacitly admitted it was a
command with which he refused to comply, stating he told Sergeant Lis to wait so
- 17 -
he could get Maldonado fully into the vehicle. [Dkts. 126-5 at 71:1-20, 116; 132-6 at
¶ 4; 126-8 at 57:3-58:25]. Specifically, Ramos testified, “I believe [Sergeant Lis] said
something [before he used mace], I don’t recall what it was.” [Dkt. 126-5 at 71:5-8].
Ramos testified that Sergeant Lis “probably” wanted Ramos to move away from
the car. Id. at 71:9-11. Ramos further testified, “I said to [Sergeant Lis] that this is
my brother and I was just trying to be helpful.” Id. at 71:12-14. When Ramos turned
around, he was pepper sprayed by Lis. [Dkt. 126-8 at 57:18-23].
In
his
opposition
briefing,
Ramos
submitted
an
affidavit
further
acknowledging that he refused to comply. He admits he “heard the police [officer]
say something to [him], and [he did not comply because he] was trying to complete
getting Jose squared away so that [he and Jose] could respond to them.” [Dkt.
132-6 at ¶ 4]. Despite Ramos’s efforts to recharacterize his refusal to cooperate
with Defendant Lis’s commands, the Court finds that the uncontroverted evidence,
including Ramos’s own admissions, shows that Ramos resisted Sergeant Lis’s
instruction and obstructed the officer’s investigation of the complaint to which he
was responding. For these reasons, Ramos’s unreasonable search and seizure
claim fails as a matter of law and Defendants’ Motion for Summary Judgment on
this claim is GRANTED.
2.
Count 1 – Excessive Force
Ramos and the Estate bring excessive force claims against Defendants
Kaplan, Lis, and Cohen. Excessive force claims are governed by the Fourth
Amendment's “objective reasonableness” standard. See Graham v. Connor, 490
U.S. 386, 388 (1989). A police officer may use force to compel compliance, but “the
- 18 -
use of force is contrary to the Fourth Amendment if it is excessive under objective
standards of reasonableness.” Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (citing
Graham, 490 U.S. at 388). “Police officers’ application of force is excessive . . . if it
is objectively unreasonable in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Maxwell v. City of
New York, 380 F.3d 106, 108 (2d Cir. 2004) (internal citation and quotation marks
omitted).
Application of the objective reasonableness standard “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. at 396 (internal citation and quotation marks omitted). Further,
this evaluation must consider all the facts of the case, including the severity of the
crime, whether the arrestee posed an immediate threat to the safety of others, and
whether he actively resisted the arrest. Id. at 396; Carey v. Maloney, 480 F. Supp.
2d 548, 556 (D. Conn. 2007). Though the Second Circuit has not yet ruled on the
issue, many courts have viewed the “immediate threat to the safety of the officers
or others” as the most important Graham factor. See A.K.H. v. City of Tustin, 837
F.3d 1005, 1011 (9th Cir. 2016) (quoting Mattos v. Agarano, 661 F.3d 433, 441 (9th
Cir. 2011) (en banc)).
“The reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in
the peace of a judge’s chambers, violates the Fourth Amendment.” Graham, 490
- 19 -
U.S. at 396 (internal citations omitted). “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Id.
at 396-97. For an officer to be “grant[ed] summary judgment against a plaintiff on
an excessive force claim, . . . no reasonable factfinder could conclude that the
officers' conduct was objectively unreasonable.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 123 (2d Cir. 2004).
i.
By Ramos Against Lis
Ramos claims that Defendant Lis used excessive force against him when
effectuating his arrest by spraying him with pepper spray. The Second Circuit has
held pepper spray “has a variety of incapacitating and painful effects” and
“constitutes a significant degree of force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d
Cir. 2010) (holding that district court erred in granting summary judgment for
officer where a reasonable jury could find that “the use of pepper spray deployed
mere inches away from the face of a defendant already in handcuffs and offering
no further active resistance constituted an unreasonable use of force.”).
Whether the use of pepper spray is excessive depends on the circumstances
under which it is used. Generally, the use of pepper spray alone when necessary
to compel a potentially dangerous person to comply with an officer’s orders has
not been found to be excessive. Thus, when an arrestee has not yet been
handcuffed or is resisting arrest, various courts within this district have found that
pepper spray is a reasonable use of force.
- 20 -
In addition, courts have held it
appropriate to deploy pepper spray when necessary to eliminate a risk of harm.
McKnight v. Vasile, No. 11-CV-6328P, 2017 WL 1176051, at *28 (W.D.N.Y. Mar. 30,
2017) (“[W]here an individual is actively resisting arrest and refusing orders, and
the scene presents a risk to officer safety—courts have granted judgment to the
officers on the grounds that the use of pepper spray was not excessive or that the
officers were entitled to qualified immunity.”) (collecting cases); see also Buckley
v. Niagara Frontier Transp. Auth., Mfrs., No. 13-CV-1205, 2016 WL 7403812, at *2-3
(W.D.N.Y. Dec. 21, 2016) (granting summary judgment in favor of officers on
excessive force claim where plaintiff was pepper sprayed after resisting arrest,
flailing about, and attempting to flee while a crowd was forming); see also Roach
v. Okun, No. 13-CV-866, 2017 WL 3638464, at *4-5 (N.D.N.Y. June 6, 2017) (granting
summary judgment in favor of officer on excessive force claim where plaintiff was
pepper sprayed after climbing on a sink in a holding cell and threatening to hurt
himself), adopted by, No. 13-CV-866, 2017 WL 3638197, at *1 (N.D.N.Y. Aug. 23,
2017); see also Dawson v. City of Yonkers Police Dept., No. 99-CIV-9877, 2001 WL
969005, at *4 (S.D.N.Y. Aug. 21, 2001) (granting summary judgment in favor of
officers on excessive force claim where plaintiff was pepper sprayed after he
forced officers into a high speed chase and violently resisted arrest).
Here, as explained above, Defendant Lis deployed pepper spray to compel
compliance with his command and to protect himself, the complainant and her
children, and possibly the Plaintiff from harm. When Defendant Lis came onto the
scene alone he spoke with Liz Bigio who told him that Maldonado had punched
and shattered her car window with her children inside. Defendant Lis observed the
- 21 -
broken glass at the scene. He did not know for certain whether Ramos, Maldonado
or both men were involved in the altercation and responsible for the broken
window. He had reason to believe that a violent crime had been committed by
Ramos, Maldonado, or both.
The undisputed facts show that Defendant Lis
approached Ramos, who was trying to push Maldonado into a car, and ordered
Ramos to move away from the car.
Ramos expressly refused to comply with
Defendant Lis’s command. Ramos continued to try to push his brother into the car
even though he knew that Defendant Lis wanted him to stop. As Ramos huddled
with Maldonado in the car, refusing to comply with his command, Sergeant Lis
could not see everything they were doing. He could not see if they were preparing
to persist in resisting his authority. When Ramos turned around Defendant Lis did
not know whether Ramos was going to continue to resist and obstruct, become
aggressive, or submit to his authority. See Bozung v. Rawson, 439 Fed. App’x 513,
520 (6th Cir. 2015) (in determining that force used was reasonable, court noted “it
may have been difficult for the officers to judge [arrestee’s] intentions” to harm
officers).
In light of the circumstances on the scene, the Court finds it was
objectively reasonable for Defendant Lis to compel compliance with his command,
and to be concerned for his safety and that of others on the scene, and therefore it
was objectively reasonable for him to pepper spray Ramos when he turned around.
Thus, Defendants’ Motion for Summary Judgment as to Ramos’s excessive force
claim is GRANTED.
- 22 -
ii.
By the Estate Against Kaplan, Lis, and Cohen
The Estate argues that Defendants Kaplan, Lis, and Cohen all acted with
unreasonable and excessive force. First, the Estate argues that Defendant Kaplan
used excessive force by firing a taser into Maldonado’s chest at close range for
over twenty seconds. Second, the Estate claims that Defendant Lis acted with
excessive force by punching Maldonado in the head in the holding cell after he was
already struck with the taser by Defendant Kaplan and shoving him into the back
of the cell wall.
Lastly, the Estate argues that Defendant Cohen acted with
excessive force by spraying Maldonado with pepper spray after he had been
shoved to the ground by Defendant Lis and was handcuffed and seated on the cell
floor. In response, Defendants claim that summary judgment should be granted in
their favor because the undisputed facts show that their use of force was
reasonable under the circumstances. The Court will consider each use of force in
turn.
The relevant facts, as viewed in the light most favorable to the Estate,
support its excessive force claims against Defendants Kaplan, Lis, and
Cohen. Maldonado was highly intoxicated, combative, and physically aggressive.
He cursed and charged at the officers after Ramos was pepper sprayed. He spit on
Officer Kaplan while he was in the back of Officer Kaplan’s cruiser in route to the
police station.
Maldonado continued to act erratically at the police station. After being
placed in the holding cell, he paced the cell removing his clothing. He was in the
holding cell in the booking room while Defendants Kaplan, Lis, and Cohen
- 23 -
attempted to place Ramos in the cell. He had almost completely disrobed and his
pants were hanging from one ankle. The officers unlocked the sliding door of the
holding cell but left it closed when Maldonado grabbed it with both hands and
forced it open. Undoubtedly, the officers had the right to use a reasonable degree
of force to compel Maldonado’s compliance and to repel the force Maldonado
exerted. The question is whether the facts raise a genuine issue as to whether the
officers used a degree of force greater than that required to achieve their legitimate
objective.
After forcing the door open, Maldonado stepped over the threshold of the
cell and swung at the officers. [Dkt. 126-17 at 2:04:39-40]. Officer Lis pushed
Maldonado backwards into the cell. Id. About the same time Officer Kaplan fired
the taser into his chest, Maldonado attempted to punch the officers. Id. at 2:04:3943. Maldonado and the officers continued to struggle. Id. at 2:04:45. Officer Kaplan
continued to aim the taser at Maldonado who stepped to the side. Id. at 2:04:46-47.
Sergeant Lis punched Maldonado, who doubled-over, and Lis struck Maldonado
again from behind propelling him to the back of the holding cell where Maldonado
hit his head on the wall. Id. at 2:04:48-49. While still holding Ramos, Officer Kaplan
continued to aim the taser at Maldonado, who sat slumped over on the floor. Id. at
2:04:51. Maldonado remained subdued and he was handcuffed. Id. at 2:05:10. The
fight evolved rapidly, and the entire altercation lasted approximately twenty
seconds. Nevertheless, as set forth in detail below, the Court cannot find that
Defendant Kaplan, Lis, and Cohen’s use of force was objectively reasonable as a
matter of law.
- 24 -
a.
Taser by Defendant Kaplan
Courts in the Second Circuit have found that tasers constitute a “significant
degree of force” and a “serious intrusion” on the individual’s Fourth Amendment
rights. See Bryant v. Meriden Police Dep’t, No. 13-CV-449, 2017 WL 1217090, at *7
(D. Conn. Mar. 31, 2017) (collecting cases); Read v. Town of Suffern Police Dep’t,
No. 10-CV-9042, 2013 WL 3193413, at *8 (S.D.N.Y. June 25, 2013) (holding that a
taser is a “serious intrusion into the core of the interests protected”).
This use of force must be balanced against the Graham factors outlined
above – the severity of the crime, whether the arrestee posed an immediate threat
to the safety of others, and whether he actively resisted the arrest. Graham, 490
U.S. at 396. “Courts have [also] endorsed consideration of additional factors,
including: (1) the existence of less intrusive means of accomplishing the law
enforcement objective, (2) the nature and quality of any warnings that preceded the
use of force, and (3) the law enforcement objective justifying the use of force.”
Bryant, 2017 WL 1217090, at *10 (internal citations and quotation marks omitted).
The Court will consider each factor in turn.
The Estate relies heavily on Bryant v. Meriden Police Department, but that
case differs in several key ways from the matter at hand. 2017 WL 1217090. The
Bryant Court found that an arrest for “simple possession of narcotics, not with
distribution or with possession with intent to distribute” did “not support the
government’s interest in tasing [the arrestee].” Id. at *11. Here, Maldonado was
arrested for a serious violent offense. When Sergeant Lis arrived on the scene, he
saw broken glass from Ms. Bigio’s car window and she identified Maldonado as the
- 25 -
perpetrator. Maldonado was highly intoxicated and shattered the glass with his fist
when Ms. Bigio was inside the car with her boyfriend and her three children.
Not only was Maldonado arrested for a far more serious crime, his behavior
at the station differed drastically from the arrestee in Bryant. When the arrestee in
Bryant was brought to the holding cell, he “had not offered any resistance since
his arrest and the officers, having found nothing during the arrest, had no reason
to believe he was armed.” Id. In contrast, as detailed above, Maldonado resisted
from the moment he encountered Sergeant Lis and was combative, using
retaliatory profanity.
He violently resisted arrest and was only brought into
custody with the assistance of multiple officers and pepper spray.
Then, he
refused to get in the police vehicle for transportation to the station and spit on
Defendant Kaplan during the ride. At the station, Maldonado refused to rinse his
eyes in the eyewash station. His aggression continued when he charged the cell
door, forced it open, attempted to force himself out of the holding cell, where three
police officers were standing, and physically resisted the Defendants’ efforts to
contain him.
The circumstances in Bryant also differ sharply from the present case with
regard to the final two Graham factors—threat to the safety of others and resisting
arrest. The Bryant Court found that the arrestee “posed no immediate threat to the
officers or others at the time of the tasing.” Id. He was handcuffed and offered no
active resistance. Id. Here, the opposite is true. While Defendants Lis, Kaplan,
and Cohen were outside of the holding cell door uncuffing Ramos to place him
inside, Maldonado took the officers by surprise and overcame their force. He
- 26 -
pushed the holding cell door open with two hands and lunged forward. Defendants
pushed and punched him before he moved backwards. Maldonado continued his
aggression and swung at the officers. The parties dispute whether Maldonado
made contact with any officers, but Plaintiff does not suggest that Maldonado did
not attempt to strike them. The undisputed evidence show Maldonado actively and
violently charged at Defendants Lis, Kaplan, and Cohen in the small space of the
holding cell in what can only be described as a melee. The video depicts Ramos
attempting to stay out of the scuffle.
Turning to the additional factors for consideration, the Court finds that they
support the initial use of the taser. First, the officers attempted to close the holding
cell door and when that failed used physical force to contain Maldonado prior to
using the taser. They pushed and punched him, but he continued to fight back. See
Campos v. City of Glendale, No. CV-06-610, 2007 WL 4468722, at *5 (D. Ariz. Dec.
14, 2007) (finding that taser use was reasonable when prior use of physical force
did not lead to compliance). Second, the parties dispute whether Defendant Kaplan
warned Maldonado before using the taser. Defendant Kaplan testified that he
yelled taser more than once and Ramos testified that he did not. [Dkt. 126-11 at
160:7-9]; see also [Dkt. 126-5 at 91:10-16]. “Courts have consistently held that a
failure to warn before the release of a K-9 or the use of taser can constitute
excessive force depending on the circumstances.” Whitfield v. City of Newburgh,
No. 8-CV-8516, 2015 WL 9275695, at *16 (S.D.N.Y. Dec. 17, 2015). Here, the Court
finds that even if Defendant Kaplan did not warn Maldonado, it was reasonable
under these circumstances because the fight evolved unexpectedly and rapidly,
- 27 -
and a warning was not feasible. See Bryan v. MacPherson, 630 F.3d 805, 831 (9th
Cir. 2010) (finding failure to warn tended to show force was unreasonable where
warning was feasible). Finally, the objective was to prevent imminent harm to
Ramos and the officers. See Bryant, 2017 WL 1217090, at *8 (“Though the Second
Circuit has not yet ruled on the issue, many courts have viewed the immediate
threat to the safety of the officers or others as the most important Graham factor.”)
(internal citations and quotation marks omitted).
Although the Court has established that the initial use of the taser was
reasonable under the circumstances, it must consider the duration of the taser use.
The undisputed evidence shows that Defendant Kaplan deployed the taser for
twenty seconds. [Dkt. 132-22 (Taser Deployment Report)]. The parties dispute
whether Maldonado was resisting or posing a threat to the Defendants, and the
Court finds that the video is inconclusive on this issue.
Ramos testified that Maldonado was “paralyzed from the Taser.” [Dkt. 1265 at 92:6-7]. The Defendants disagree. Defendant Lis testified that he thought the
taser was not working because Maldonado was still upright, but bent over and had
his hands near the taser probes. [Dkt. 126-8 at 99:2-25]. He explained further that,
“[t]he majority of times when I see somebody get tased, they’re they completely
lock up. They’re not able to bend over or put their hands near the probes like
they’re going to pull it out.
That was my first inclination.
And the second
inclination was there was a loud popping sound to the Taser. When we have our
training that’s not a connection that’s being made. . . . when it’s a good Taser hit
and good connection, it’s very quiet. . . . the combination of everything with him
- 28 -
bending over, him putting his hands near the probes, Officer Kaplan saying he’s
going to pull out the probes, the sound of the Taser, I don’t think any of it was
working.”
Id. at 99:25-100:17. Similarly, Defendant Kaplan testified that he
expected Maldonado to become incapacitated, but instead he “made fists with his
hands while yelling and flexing up towards [Defendant Kaplan].” [Dkt. 126-11 at
160:15-24].
It is well settled that force “should not be used lightly or gratuitously against
an arrestee who is complying with police commands or otherwise poses no
immediate threat to the arresting officer.” Tracy, 623 F.3d at 98; see Whitfield, 2015
WL 9275695, at *18 (“It is well-settled that an officer may not continue to use force
against a suspect who, although previously resistant, has been subdued.”).
Therefore, the reasonableness of force used by Defendant Kaplan depends on
when Maldonado was subdued and no longer a threat to Defendants or to Ramos.
Considering the video evidence and the testimony of the parties, the Court cannot
pinpoint as a matter of law when Maldonado was no longer resisting the
Defendants or posing a threat to their safety, in addition to Ramos’s safety.
Therefore, Defendant Kaplan’s Motion for Summary Judgment on the Estate’s
excessive force claim for use of a taser is DENIED.
b.
Punch and Shove by Defendant Lis
The Estate argues that Defendant Lis used excessive force by punching
Maldonado and pushing him into the wall of the holding cell because Maldonado
was already under the power of the taser at that time and was not resisting or
posing a threat to the officers. Like the use of the taser by Defendant Kaplan, the
- 29 -
reasonableness of Defendant Lis’s use of force against Maldonado depends on
when Maldonado was subdued and no longer a threat to Defendants or to Ramos.
As explained above, the Court cannot determine as a matter of law when
Maldonado was no longer resisting the Defendants or posing a threat to their
safety, in addition to Ramos’s safety. In addition, a reasonable jury could find
Maldonado was no longer a danger after before he was last struck by Sergeant Lis.
Therefore, Defendants’ Motion for Summary Judgment on the Estate’s excessive
force claim for the punch and shove is DENIED.
c.
Pepper Spray by Defendant Cohen
The Second Circuit has found that it was objectively unreasonable for an
officer to use pepper spray “mere inches away from the face of a defendant already
in handcuffs and offering no further active resistance.” Tracy, 623 F.3d at 98. The
Estate argues that a reasonable jury could find that Defendant Cohen used
excessive force by spraying him with pepper spray after he was handcuffed. The
Court agrees. Here, the parties dispute the threshold issue of whether any force
was used at all. Ramos claims Maldonado was pepper sprayed by Defendant
Cohen. Ramos testified, “I was outside of his cell sitting down, while I was like,
looking when I said earlier that I was 8 feet away and I was seeing him and he was
facing down when they handcuffed him. They had a knee behind him and one of
the officers took his spray from his waist and sprayed him while he was on the
floor. That’s why I said, You didn’t have to do that, there’s no reason for that, he
was already handcuffed.” [Dkt. 132-3 at 152:13-153:20]. Officer Cohen testified that
he pointed his pepper spray can at Maldonado, even though Maldonado was
- 30 -
handcuffed, as a precaution should he resist, but did not spray. [Dkt. 132-18 at
114:5-119:23]. Officer Cohen also admitted that at the time he placed the pepper
spray cannister in Maldonado’s face, Maldonado posed no risk of harm to anyone.
Id. at 117:14-19. A reasonable jury could credit Ramos’s testimony and find that
Officer Cohen pepper sprayed Maldonado while he was subdued and handcuffed
on the cell floor, and therefore, Defendant Cohen used excessive force against
Maldonado. For these reasons, Defendants’ Motion for Summary Judgment on the
Estate’s excessive force claim for use of pepper spray is DENIED.
3.
i.
Count 1 – Failure to Intervene
By the Estate Against Kaplan, Lis, and Cohen
Maldonado brings a claim for failure to intervene against Defendants Kaplan,
Lis, and Cohen arguing that they should have intervened to prevent the use of
excessive force by their fellow officers. “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.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)
(citations omitted). In this Circuit, “[a]n officer who fails to intercede is liable for
the preventable harm caused by the actions of the other officers where that officer
observes or has reason to know . . . (1) that excessive force is being used, (2) that
a citizen has been unjustifiably arrested, or (3) that any constitutional violation has
been committed by a law enforcement official. Id. (citations omitted). “In order for
liability to attach, there must have been a realistic opportunity to intervene to
prevent the harm from occurring.” Id. “Whether an officer had sufficient time to
- 31 -
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.” Id. Liability hinges on whether an
officer “permitted fellow officers to violate a suspect’s ‘clearly established
statutory or constitutional rights’ of which a reasonable person would have
known.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Failure to intervene claims are
‘contingent upon the disposition of the primary claims underlying the failure to
intervene claim.’” Usavage v. Port Auth. of N.Y. & N.J., 932 F. Supp. 2d 575, 599
(S.D.N.Y. 2013) (quoting Matthews v. City of New York, 889 F. Supp. 2d 418, 443–44
(E.D.N.Y. 2012)).
Where the record does not disclose an underlying excessive
force violation, and does not suggest that an officer who observed the disputed
incident could have been aware of the use of excessive force, summary judgment
on a duty to intercede claim is appropriate. See Ferraresso v. Town of Granby, 646
F. Supp. 2d 296, 308 (D. Conn. 2009).
As explained above, there is a genuine dispute of material fact regarding
whether Defendants Kaplan, Lis, and Cohen used excessive force against
Maldonado. However, even if a jury did find excessive force was used, because
the events evolved so rapidly and the officers were in such close proximity to one
another and to Maldonado, no reasonable jury could find that any of the officers
had an opportunity to anticipate, prevent or stop the force used by the others.
Therefore, the Court finds as a matter of law that Defendants did not fail to
- 32 -
intervene to prevent the use of excessive force by their fellow officers against
Maldonado and their Motions for Summary Judgment on this claim are GRANTED.
Count 1 – Deliberate Indifference to Medical Needs
4.
i.
By the Estate Against Kaplan, Lis, and Cohen
The Estate alleges that Defendants Kaplan, Lis, and Cohen were deliberately
indifferent to his medical needs while he was a pretrial detainee. “A pretrial
detainee’s claims are evaluated under the Due Process Clause [of the Fourteenth
Amendment rather than the Eighth Amendment, as] ‘[p]retrial detainees have not
been convicted of a crime and thus may not be punished in any manner—neither
cruelly and unusually nor otherwise.’” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017) (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)). To prevail on such
a claim, a plaintiff must demonstrate: (1) that an official “denied [him] treatment
needed to remedy a serious medical condition,” and (2) that the official did so
“because of his deliberate indifference to that need.” Weyant v. Okst, 101 F.3d 845,
856 (2d Cir. 1996). When analyzing the sufficiently serious prong, the Court must
determine “whether the prisoner was actually deprived of adequate medical care.”
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). If so, the Court must then
consider “whether the inadequacy in medical care is sufficiently serious.” Id. at
280. For the mens rea prong, “the pretrial detainee must prove that the defendantofficial acted intentionally to impose the alleged condition, or recklessly failed to
act with reasonable care to mitigate the risk that the condition posed to the pretrial
detainee even though the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35.
- 33 -
Here, the Estate has sufficiently raised a genuine issue of material fact as to
whether Defendants were deliberately indifferent to his medical needs. As to the
first prong, the Estate has produced evidence that Defendants denied Maldonado
prompt medical care and the delay was sufficiently serious to his health, given the
length of the tasing and the location where Maldonado was tased. Defendants were
required to conduct a medical assessment after an individual was tased. [Dkts.
131-20 at 108:3-22; 131-23 (Lis Dep.) at 114:21-115:18]. They left the holding cell at
2:06:18 AM and did not return to physically check on Maldonado until 2:10:34 AM,
approximately four and one-half minutes later. When they determined that
Maldonado did not have a pulse, they did not perform CPR. Although Defendants
were not designated first responders, Defendants Kaplan and Lis were trained to
perform CPR. [Dkts. 131-24 (Kaplan Dep.) at 57:6-59:16; 131-23 at 42:24-43:5].
The Estate’s experts also opine that Maldonado was deprived of adequate
medical care. Plaintiff’s expert Dr. Maria Haberfeld stated that “[b]ased on
departmental guidelines, as well as their training and experience, it should have
been evident to the officers that Mr. Maldonado was in need of medical assistance
and they should have provided or summoned such assistance immediately.” [Dkt.
132-19 (Haberfeld Report) at 9].
Another expert, Roger Clark, agrees: “[a]ny
reasonably trained officer who was present when Mr. Maldonado was Tased in the
chest for an extended period of time, was punched in the head, struck his head
against the cement wall, and appeared so suddenly flaccid, would know that he
was significantly injured and in a medical crisis that required immediate medical
care.” [Dkt. 132-11 (Clark Report) at 19].
- 34 -
In addition, Maldonado’s condition was sufficiently serious—it is undisputed
that when the Defendants reentered the holding cell, Maldonado was unconscious
and Defendants did not know if he had a pulse. Paramedics entered the cell at
2:16:36 AM, approximately six minutes after the officers returned to physically
check on Maldonado. The last time Kaplan is seen pointing the taser at Maldonado
is 2:05:09 AM. [Dkt. 126-17 at 2:05:09]. Medical assistance arrived more than ten
minutes after the officers left the cell and approximately twelve minutes after
Kaplan appears to have tased Maldonado last.
Further, Maldonado was tased for a total of twenty seconds. As Defendant
Kaplan’s expert testified, taser training teaches that tasing for longer than fifteen
seconds may increase the risk of serious injury or death and should be avoided.
[Dkt. 132-25 at 110:17-25]. Taser training materials also indicate that tasing for
more than fifteen seconds should be avoided. [Dkts. 132-40 (ECW Guidelines) at
18; 132-41 (Taser Training) at 5]. In addition, as Defendants were aware, taser
training cautions against tasing in the chest. [Dkts. 132-40 at 37; 132-41 at 4; 13225 at 119; 132-24 at 88:3-7, 91:6-21; 132-18 at 36:6-23; 132-23 at 32:17-33:9]. Dr.
Myerburg opined that Maldonado could have survived if Defendants began
lifesaving treatment. [Dkt. 132-27 at 131:20-134:22].
Turning to the mens rea prong, the Estate has also created a genuine issue
of fact as to whether Defendants recklessly failed to act with reasonable care to
mitigate a risk they knew or should have known to Maldonado’s health or safety. It
is undisputed that Maldonado was tased in a single interval for a continuous period
- 35 -
of twenty seconds. Defendant Kaplan was aware that a taser can be lethal. [Dkt.
125-7 (Kaplan Dep.) at 84:12-24].
Defendant Kaplan also knew that the regular taser cycle was five seconds.
Id. at 96:7-21. He was instructed to fire at five-second bursts then assess impact,
and he knew it was better to not exceed the five-second interval. Id. at 97:4-24.
Kaplan used the taser for a prolonged period, approximately four times that
recommended because he suspected it was not working; however, he did not know
for certain whether the taser was working and whether Maldonado received
excessive electrical charges. Id. at 260:13-261:9.
Defendant Kaplan was also instructed to try not to target a person’s chest,
among other areas, because it could interfere with the heart. Id. at 88:3-10.
Defendant Cohen and Defendant Lis also knew that the chest was not the best spot
to target. [Dkt. 131-18 (Cohen Dep.) at 35:13-36:23; 131-23 (Lis Dep.) at 32:22-33:23].
When Defendant Kaplan initially began tasing, he was responding to Maldonado’s
unexpected and rapidly evolving aggression and was in very close quarters. A
reasonable officer under those conditions is unlikely to have the time and space to
target the taser. However, for at least a portion of the time he used the taser Officer
Kaplan did have the opportunity and space to target another part of Maldonado’s
body.
Contrary to Defendants’ claims, the Court finds that a reasonable jury could
find that Defendants, with knowledge of Maldonado’s exposure to the taser in his
chest for an excessive period of time, knew that Maldonado needed immediate
medical attention and that his affect suggested he may have suffered a serious
- 36 -
injury. Notwithstanding this knowledge, Defendants failed to provide reasonably
timely medical care. Therefore, Defendants’ Motions for Summary Judgment as to
the Estate’s claim for deliberate indifference to medical needs is DENIED.
5.
i.
Count 2 – Monell Claim
By Ramos and the Estate Against Town of East Hartford and Sansom
Ramos and the Estate bring a § 1983 claim against Defendants Town of East
Hartford and Chief Sansom. To state a claim under § 1983 against a municipality,
a plaintiff must show “(1) an official policy or custom that (2) causes the plaintiff to
be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007).
A plaintiff must prove “both the existence of a
municipal policy or custom and a causal connection between that policy or custom
and the deprivation of his constitutional rights.” Dodd v. City of Norwich, 827 F.2d
1, 5 (2d Cir. 1987). “Courts have recognized four ways for plaintiffs to demonstrate
a policy or custom: (1) a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers; (2) conduct ordered by
a municipal official with policymaking authority; (3) actions taken pursuant to
governmental custom even though such a custom has not received formal
approval through the body’s official decisionmaking channels; or (4) a failure to
train municipal employees that amounts to deliberate indifference to the rights of
persons with whom the [employees] come into contact.” Walker v. City of New
York, No. 12-CV-5902, 2014 WL 1259618, at *2 (S.D.N.Y. Mar. 18, 2014) (internal
citations and quotation marks omitted).
- 37 -
Defendants argue they are entitled to summary judgment because Plaintiff
asserts only conclusory allegations unsupported by record evidence. In response,
Plaintiff claims he has clear record evidence of the following customs by Defendant
Town of East Hartford and Defendant Sansom: (1) condoning the firing of tasers
into suspects’ chests contrary to taser warnings; (2) discouraging officers from
providing lifesaving treatment; (3) failing to train its officers to obtain timely
emergency treatment; (4) condoning use of excessive force by the officers in this
case by its failure to perform a genuine internal affairs investigation.
The Court considers Plaintiff’s claims that the Defendant Town of East
Hartford and Defendant Sansom maintained various improper customs or
practices collectively. “Monell's policy or custom requirement is satisfied where a
local government is faced with a pattern of misconduct and does nothing,
compelling the conclusion that the local government has acquiesced in or tacitly
authorized its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183,
192 (2d Cir. 2007) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
“To demonstrate an official policy or custom, a plaintiff must show the existence
of a . . . practice that is so persistent and widespread that it constitutes a custom
or usage of which supervisory authorities must have been aware, or that a
municipal custom, policy, or usage can be inferred from the evidence of deliberate
indifference of supervisory officials as to such abuses.” EZ Pawn Corp. v. City of
New York, 16-CV-3852, 2019 WL 2393780, at *15 (E.D.N.Y. June 5, 2019) (internal
quotation marks omitted) (quoting Iacovangelo v. Corr. Med. Care, Inc., 624 F.
App'x 10, 13 (2d Cir. 2015)) (summary order). Plaintiff’s argument falls “far short of
- 38 -
establishing a practice that is so persistent and widespread as to justify the
imposition of municipal liability.” Giacco v. City of New York, 308 Fed. App’x. 470,
472 (2d Cir. 2009) (internal quotations omitted) (finding that four examples of a
particular practice was not sufficient to establish pervasiveness to survive a
motion for summary judgment).
First, Plaintiff argues that Defendant Town of East Hartford has a custom of
condoning the use of a taser in a suspect’s chest, and such custom is evidenced
by the fact that there were sixteen instances of taser firing in the chest over a twoyear period, from 2014 to 2015. [Dkt. 132-49 (EHPD Taser Statistics 2014-2015)].
Plaintiff presents no contextual evidence for the Court to determine the
significance of these numbers. See Tieman v. City of Newburgh, 13-CV-4178, 2015
WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015) (“The lawsuits cited by Plaintiff in the
PAC, even when combined with the allegations regarding the public forum
comments and the Matrix Report, are insufficient to plausibly support an inference
of a widespread custom . . . the fact that there were allegations of thirteen instances
of excessive force during arrests over four years (none of which involved findings
or admissions of culpability) during which hundreds, if not thousands, of arrests
were made does not plausibly demonstrate that the use of excessive force during
arrest was so frequent and pervasive to constitute a custom.”) (collecting cases).
Testimony from Defendant Sansom similarly fails to indicate a widespread policy.
He indicated that the sixteen incidents of tasing to the chest would not trigger a
supervisory response by him, but he also indicated that he does not review the use
of force unless it has been flagged by a reviewing officer as outside of the protocol.
- 39 -
[Dkt. 132-20 (Sansom Dep.) at 136:9-14; 132:15-25; 120:5-121:23]. There is no
evidence that any of the sixteen incidents were flagged as outside of the protocol.
Nor is there any evidence they should have been flagged. There is no evidence of
the circumstances surrounding the taser incidents to suggest they were not
reasonable under the circumstances. Therefore, the Court finds that there is
insufficient evidence for a reasonable jury to find a widespread policy.
Even if Plaintiff could establish a policy, however, Plaintiff has produced no
evidence of a causal link between the alleged custom and the alleged violation of
Ramos and Maldonado’s constitutional rights. There must be “a direct causal link
between the municipal policy or custom and the alleged constitutional
deprivation.” Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (internal
quotation marks omitted); see also Jie Yin v. NFTA, 188 F. Supp. 3d 259, 275-76
(W.D.N.Y. 2016) (granting summary judgment in “the absence of any showing of a
custom or practice as well as a direct causal link between that custom or practice
and the alleged violation of Plaintiff’s constitutional rights”). Here, Plaintiff has
presented no evidence that Defendants Kaplan, Lis, and Cohen understood that
there was a custom of permitting officers to fire a taser into a suspect’s chest such
that Defendant Kaplan understood he could do so with impunity. On the contrary,
the evidence shows the officers were aware that tasering someone in the chest
should be avoided. Therefore, Defendants’ Motion for Summary Judgment on the
theory of tasing in the chest is GRANTED.
Second, Plaintiff claims that Defendants discouraged officers from providing
lifesaving treatment and condoned use of force by failing to perform a genuine
- 40 -
internal affairs investigation. In support, Plaintiff cites Defendant Sansom’s
testimony that officers are not required to be first responders and the policy,
especially with regard to emergencies on police department property, was to call
the fire department because the department is in the building and the firefighters
are the designated first responders. [Dkt. 132-20 at 24:4-22, 27:19-23]. Plaintiff also
claims that the Defendants’ failure to follow their own policies regarding in-custody
deaths reflects its custom of condoning the use of excessive force. Defendant
Sansom testified that he did not recall what the East Hartford Police Department
did in response to the Connecticut State Police’s investigation report even though
his Department declared it would “review the Connecticut State Police’s
investigation report prior to declaring the final disposition of this case.” [Dkt. 13220 at 77:7-20]. Like Plaintiff’s claims regarding tasering in the chest, there is no
evidence of a widespread custom of discouraging officers from providing
lifesaving treatment and failing to perform internal investigations. Even if such
evidence existed, however, there is no evidence that Defendants failed to provide
treatment to Maldonado because of any alleged discouragement to do so or used
excessive force against Ramos and Maldonado because they believed an internal
investigation was unlikely. Plaintiff fails to present evidence of a practice of failing
to investigate.
Lastly, Plaintiff claims that Defendants Town of East Hartford and Sansom
failed to train officers regarding timely emergency treatment. “A municipality's
culpability for a deprivation of rights is at its most tenuous where a claim turns on
a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted).
- 41 -
“To satisfy [§ 1983], a municipality's failure to train its employees in a relevant
respect must amount to deliberate indifference to the rights of persons with whom
the [untrained employees] come into contact.” Id. (internal quotation marks and
citation omitted). “A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference for
purposes of failure to train.” Id. at 1360 (internal quotation marks and citation
omitted). “[T]o constitute deliberate indifference in a municipal failure to train or
supervise claim, a plaintiff must show that (1) a policymaker knew to a moral
certainty that his or her employees will confront a given situation; (2) the situation
would present employees with a difficult choice of the sort that training or
supervision would make less difficult, or a history of mishandling the situation;
and (3) the wrong choice by a city employee would frequently cause the deprivation
of a citizen's constitutional rights.” Jane Doe II v. City of Hartford, 1-CV-1026, 2005
WL 2009051, at *5 (D. Conn. Aug. 22, 2005) (citing Walker v. City of New York, 974
F.2d 293, 297-98 (2d Cir. 1992)). A plaintiff “must show that the need for more or
better supervision to protect against constitutional violations was obvious.” Vann
v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). “An obvious need may be
demonstrated through proof of repeated complaints of civil rights violations;
deliberate indifference may be inferred if the complaints are followed by no
meaningful attempt on the part of the municipality to investigate or to forestall
further incidents.” Id. A need may also be “obvious” enough to permit an inference
of deliberate indifference where a supervisory official fails to intervene after
personally witnessing an instance of “blatantly unconstitutional” conduct.
- 42 -
Amnesty Am., 361 F.3d at 127 n.8. The municipality's failure to take action must
constitute “deliberate indifference, rather than mere negligence or bureaucratic
inaction.” Id. at 128.
Plaintiff must also proffer “evidence as to the city’s training program and the
way in which that program contributed to the violation.” Id. at 127 n.8. A plaintiff
should present evidence of a training deficiency, including “how the training was
conducted, how better or different training could have prevented the challenged
conduct, or how ‘a hypothetically well-trained officer would have acted’ under the
circumstances.” Id. at 130 (internal citation and quotation marks omitted). “[T]he
factfinder’s inferences of inadequate training and causation must be based on
more than the mere fact that the misconduct occurred in the first place.” Id.
(internal citation omitted).
Here, the record is completely devoid of evidence that there was an obvious
need for more training regarding timely emergency care. Although East Hartford
Police Department’s policy was for police officers not to perform CPR and to
summon the emergency medical responders employed by the fire department
located in the same building, Plaintiff presents no evidence of instances where
emergency care was not timely provided, or situations where supervisors
personally witnessed such failures. Therefore, Plaintiff’s claim that Defendants
were deliberately indifferent to the needs of pretrial detainees in police custody by
failing to train in emergency treatment fails as a matter of law. Jackson v. Town of
Bloomfield, No. 12-CV-00924, 2015 WL 1245850, at *19 (D. Conn. Mar. 18, 2015)
(granting summary judgment where plaintiffs “failed to provide evidence of
- 43 -
deliberate indifference on the part of policymaking officials.”). For these reasons,
Defendants’ Motion for Summary Judgment on the theory of deliberate indifference
to emergency training is GRANTED.
B.
Qualified Immunity
Defendants argue that they are immune from liability under the doctrine of
qualified immunity 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,
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
- 44 -
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
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). Only the most egregious conduct is not protected by
qualified immunity.
“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,
- 45 -
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).
1.
Qualified Immunity as to Ramos’s Claims
Even if Sergeant Lis’s use of force against Ramos was unreasonable,
Ramos’s claim would still fail because Sergeant Lis is entitled to qualified
immunity.
Here, no reasonable jury could conclude that the force used by
Defendant Lis under these circumstances was objectively unreasonable in
violation of the Fourth Amendment. In fact, in Brown v. City of New York, the
Second Circuit recently affirmed the district court’s grant of qualified immunity on
similar facts. 862 F.3d 182, 189-92 (2d Cir. 2017). In Brown, the plaintiff repeatedly
refused to follow instructions of the officers who were attempting to handcuff and
arrest her. Id. at 190. The officers used pepper spray with prior warning to plaintiff,
kicked the plaintiff’s legs out from under her to bring her to the ground, and pushed
her face into the pavement. Id. The Court found that “[n]o precedential decision
of the Supreme Court or this Court ‘clearly establishes’ that the actions of [the
- 46 -
officers], viewed in the circumstances in which they were taken, were in violation
of the Fourth Amendment.” Id.
Similarly, in McKnight v. Vasile, the plaintiff challenged an officer’s use of
pepper spray against her while she was resisting arrest by a different officer. 2017
WL 1176051 at *26. The officer observed plaintiff resisting arrest and trying to enter
her home. Id. at *27. His attempts to physically restrain her failed and he deployed
his pepper spray without warning. Id. The officer testified that he deployed the
spray “after he failed to gain control of her and in the moment that she turned
toward him he felt vulnerable to a physical threat, such as a punch.” Id. The court
granted qualified immunity and found that “a reasonable officer in [his] position
would not have clearly understood that resort to one burst of pepper spray was
unlawful.” Id. at *28.
Although Ramos did not physically resist arrest, he refused to comply with
Defendant Lis’s commands and obstructed his investigation of a violent
altercation. Defendant Lis was the only officer at the scene and he wanted to
ensure that Ramos and Maldonado did not drive away. [Dkt. 126-8 at 56:14-19]. At
this time, Maldonado was swearing and trying to get out of the car. Id. at 57:1-2.
Defendant Lis perceived that Maldonado was the aggressor. Id. at 57:4-7. Ramos
refused to comply and clenched his fists. Defendant Lis testified that he was fearful
because Ramos clenched his fists and was not obeying commands, so he pepper
sprayed him to “gain control of him.” Id. at 57:18-23. The Court finds that under
these circumstances a reasonable officer would not have understood that his acts
were unlawful and grants Defendant Lis qualified immunity on Ramos’s excessive
- 47 -
force claim.
Therefore, Defendants’ Motion for Summary Judgment based on
qualified immunity is GRANTED.
Qualified Immunity as to the Estate’s Claims
2.
a.
Failure to Intervene
A police officer is entitled to qualified immunity unless his failure to
intervene was under “circumstances making it objectively unreasonable for him to
believe that his fellow officers’ conduct did not violate [the plaintiff’s] rights.”
Riciutti v. N.Y.C. Transit Auth., 941 F.2d 123, 129 (2d Cir. 1997); see also Berg v.
Kelly, 897 F.3d 99, 113 (2d Cir. 2018). As explained above, the Court finds as a
matter of law that no reasonable jury could find that Defendants had any
opportunity to prevent or stop the use of force by their fellow officers. Under these
circumstances, it was not objectively unreasonable for Defendants to believe that
their fellow officers’ conduct did not violate Maldonado’s rights. Therefore,
Defendants’ Motions for Summary Judgment based on qualified immunity are
GRANTED.
b.
Deliberate Indifference to Medical Need
Maldonado’s right to be free from deliberate indifference to his medical
needs was clearly established on the night of his arrest. See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Mills v. Fenger, 216 Fed. App’x 7, 11 (2d Cir. 2006) (citing
Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir. 1990)) (vacating summary judgment
against pretrial detainee and further finding that “defendants are not entitled to
qualified immunity because a pretrial detainee’s right not to be recklessly denied
treatment for a serious medical condition was ‘clearly established’ at the time these
- 48 -
events transpired”); Lewis v. Clarkstown Police Dept., 11-CV-2487, 2014 WL
1364934, at *10 (S.D.N.Y. Mar. 31, 2014) (finding that “rights of pretrial detainees to
be free from . . . deliberate indifference to their serious medical needs are well
established” and denying summary judgment based on qualified immunity). Here,
there is a genuine issue of material fact regarding whether Defendants recklessly
denied Maldonado sufficient medical care. Given these factual disputes, the Court
cannot determine that Defendants’ actions were objectively reasonable as a matter
of law. Therefore, Defendants’ Motions for Summary Judgment based on qualified
immunity are DENIED.
c.
i.
Excessive Force
Taser by Defendant Kaplan and Punch and Shove by Defendant Lis
As of the date of this incident, it was clearly established within the Second
Circuit that tasing and physically assaulting an individual who was not actively
resisting arrest or posing an immediate threat to officers constituted excessive
force. See Whitfield, 2015 WL 9275695, at *18; see also Zachary v. City of Newburgh,
No. 13-CV-5737, 2016 WL 4030925, at *9 (S.D.N.Y. July 25, 2016) (“When officers
continue to apply force to an arrestee who is already subdued, it may be sufficient
for a jury to find such force to be excessive.”) (collecting cases). Here, there is a
genuine issue of material fact regarding whether Maldonado was resisting during
the entire time the taser was deployed and when Defendant Lis punched him and
shoved him towards the holding cell wall. This fact dispute precludes the Court
from granting summary judgment on qualified immunity grounds. See Orell v.
Muckle, No. 11-CV-97, 2012 WL 3231017, at *5 (D. Conn. Aug. 6, 2012) (denying
- 49 -
summary judgment on qualified immunity grounds where a reasonable juror could
find officer used unreasonable force in deploying taser); see also Zachary, 2016
WL 4030925, at *9, 11 (denying summary judgment on qualified immunity grounds
where “the Court is simply not able to say as a matter of law precisely when plaintiff
was restrained to the point that he no longer posed a threat to officers’ safety”).
Therefore, Defendants’ and Defendant Kaplan’s Motions for Summary Judgment
on Maldonado’s excessive force claim based qualified immunity is DENIED.
ii.
Pepper Spray by Defendant Cohen
At the time of Maldonado’s arrest, the Second Circuit had clearly established
that “no reasonable officer could have believed that he was entitled to use pepper
spray gratuitously against a restrained and unresisting arrestee.” Tracy, 623 F.3d
90, 99 n.5 (2d Cir. 2010). Since then, many courts have denied qualified immunity
to officers for using pepper spray on individuals who were not actively resisting
arrest or who had already been restrained. See, e.g., Knight v. City of New York,
No. 16-CV-7888, 2019 WL 95480, at *5 (S.D.N.Y. Jan. 2, 2019) (“[A]t least since Tracy,
deploying pepper spray in the face of [an individual] ‘already in handcuffs and
offering
no
further
active
resistance’
constitutes
a
clearly
established
unreasonable use of force.”) (citing Tracy, 623 F.3d at 98); Jackson v. Tellado, 236
F. Supp. 3d 636, 669 (E.D.N.Y. 2017) (“It is clearly established that the use of pepper
spray against a restrained and cooperative person constitutes excessive force.
Once Plaintiff was handcuffed and restrained, any additional use of force was
plainly unnecessary and thus violated clearly established law.”) (collecting cases);
Bryant, 2017 WL 1217090, at *15 (“Like other courts before me, I hold as a matter
- 50 -
of law that it was clearly established in March 2011 that officers could not employ
a significant degree of force, such as a taser, against a suspect who was
handcuffed, surrounded by multiple officers in a police station holding cell, and
who did not pose either a threat to the officers or a threat of escape.”).
Here, as explained above, the parties dispute whether Defendant Cohen
discharged his pepper spray at Maldonado. Because there are disputed facts as
to Defendant Cohen’s actions, the Court cannot determine if Defendant Cohen
acted reasonably and cannot find as a matter of law that he is entitled to qualified
immunity. For the foregoing reasons, Defendants’ Motion for Summary Judgment
based on qualified immunity is DENIED.
V.
A.
State Claims
Count 3 – Connecticut Constitutional Claims, Art. I, §§ 7, 9
Ramos and the Estate bring claims against all Defendants under two
sections of the Connecticut Constitution.6 Article First, § 7 provides that “[t]he
people shall be secure in their persons, houses, papers and possessions from
unreasonable searches or seizures . . .” CONN. CONST. art. I, § 7. Article First, § 9
provides that “[n]o person shall be arrested, detained or punished, except in cases
clearly warranted by law.” Id. at § 9. In Binette v. Sabo, the Connecticut Supreme
Court recognized “a common-law cause of action under article first, §§ 7 and 9, of
[the state constitution] for the policy reasons articulated in Bivens v. Six Unknown
Plaintiffs’ claims against Defendant Town of East Hartford fail as a matter of law because
“damages claims based on violations of the Connecticut constitution cannot be
maintained directly against a municipal entity.” McCullough v. Town of Rocky Hill, No.
CV155016831S, 2018 WL 1278220, at *3 (Conn. Super. Ct. Jan. 31, 2018) (internal citation
omitted).
6
- 51 -
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.” 244 Conn. 23, 32
(1998); see also Lopez v. Smiley, 375 F. Supp. 2d 19, 23 (D. Conn. 2005) (“Binette
created a narrow cause of action for money damages under the Article First, §§ 7
and 9 of the Connecticut Constitution for illegal searches and seizures of private
homes by police officers, a cause of action that is equivalent to the federal Bivens
action under the Fourth Amendment to the United States Constitution.”).
Following Binette, the Connecticut Appellate Court, in Martin v. Brady,
affirmed the dismissal of the plaintiff’s complaint finding that it was distinguishable
from Binette because the alleged conduct was not sufficiently egregious. 64 Conn.
App. 433, 441 (2001). The court noted that the Binette complaint “was sustained
because of its specific allegations of an unreasonable, egregious search and
seizure.” Id. at 440. In Martin, plaintiff alleged two improper intrusions into his
home, property damage, and physical harm. Id. The court found that these
allegations were “a far remove from the allegations of misconduct that underlay
Binette.” Id.
Despite Martin, “[c]ourts in this District have diverged on the issue of
whether Binette created a cause of action for every violation of sections 7 and 9 or
only for those violations that are sufficiently egregious.” Gilbert v. Newton, No. 13CV-1715 JCH, 2015 WL 3755955, at *2 (D. Conn. June 15, 2015). Judges Hall and
Haight have found that, based on a close reading of Binette and its underlying
rationale, “a violation of sections 7 and 9 gives rise to a cause of action even if it
is not the result of egregious conduct.” Id.; see also Waller v. City of Middletown,
- 52 -
50 F. Supp. 3d 171, 191-92 (D. Conn. 2014), order vacated in part on other grounds
on reconsideration, 89 F. Supp. 3d 279 (D. Conn. 2015).
In the majority of cases, this Court has recognized Binette claims where
officers have entered a plaintiff’s premises illegally and seriously injured the
plaintiff. See e.g., Outlaw v. City of Hartford, No. 7-CV-1769, 2015 WL 1538230, *14
(D. Conn. April 6, 2015) (denying summary judgment where officers entered without
a warrant and seriously injured plaintiff who was not resisting or attempting to
flee); Fago v. Devin, No. HHD-CV-146053659S, 2015 WL 5135940, at *3 (Conn. Super.
Ct. July 31, 2015) (granting motion to strike because allegations that one officer
was aggressive and slammed plaintiff against a car and another coerced witnesses
for evidence necessary for plaintiff’s arrest did not rise to the level of egregious
misconduct necessary to state a cause of action); Faulks v. City of Hartford, No. 8CV-270, 2010 WL 259076, at *10 (D. Conn. Jan. 19, 2010) (granting summary
judgment where plaintiff was struck with a baton until he fell and could be
handcuffed on the grounds that this conduct did not rise to the level of egregious);
Conroy v. Caron, 275 F. Supp. 3d 328, 352 (D. Conn. 2017) (denying summary
judgment where officers unlawfully entered and searched a family’s home, used
excessive force on a teenager who was verbally objecting to their presence and
arrested multiple family members without probable cause).
Here, the Court finds that Ramos and the Estate fail to state claims based on
the Connecticut Constitution as a matter of law. First, there was no illegal entry
into their private home. Ramos and Maldonado were on a public street when they
were arrested and placed in police custody in the booking room. Second, although
- 53 -
the result of Ramos and Maldonado’s contact with police—Maldonado’s death—
was the most egregious imaginable, the Court cannot find that the police conduct
rose to the level and type of egregiousness required by Binette. The undisputed
facts demonstrate that Maldonado was attempting to exit the holding cell and
punched one of the officers. His conduct is wholly unlike that of other plaintiffs
who were compliant with the officers’ requests. In contrast, the record also reflects
that Ramos cooperated with the officers after his arrest, but he was not injured in
the altercation. On these facts, the Court finds that the Defendants’ conduct was
not sufficiently similar to the conduct at issue in Binette so as to warrant the
creation of a private cause of action. See, e.g., Nelson v. City of Stamford, No. 09CV-1690, 2012 WL 233994, at *12 (D. Conn. Jan. 25, 2012) (granting summary
judgment where one plaintiff admitted to resisting arrest and the other did not
sustain an injury because the conduct did rise to the level of egregious); see also
Edwards v. City of Hartford, No. 13-CV-878, 2015 WL 7458501, at *2, 5 (D. Conn.
Nov. 23, 2015) (granting summary judgment where one plaintiff was in close
proximity to a taser and pepper spray discharge and the other was pepper sprayed
on the grounds that the circumstances and injuries were not egregious).
In addition, as this Court has previously acknowledged, “[t]here are
separation of powers considerations at issue which counsel against recognizing a
state constitutional claim. This case deals with police action, which is an extension
of the executive branch of municipal government. If a cause of action under the
state constitution is created here, it may lead to ‘second-guessing’ by the judiciary
of executive actions. This second-guessing could have a chilling effect on police
- 54 -
actions.” Faulks, 2010 WL 259076 at *10. “The threat of liability . . . may have a
chilling effect on the zeal with which [police officers] undertake their
responsibilities.” Id. (quoting Kelley Prop. Dev., Inc. v. Lebanon, 226 Conn. at 314,
342 (1993)).
For the foregoing reasons, Defendants’ Motions for Summary Judgment on
Plaintiff’s claims for violations of Articles 7 and 9 of the Connecticut Constitution
are GRANTED.
B.
i.
Count 4 – Negligence Claim
By Ramos Against All Defendants
Ramos alleges that Defendants breached their duty to act with reasonable
care because, among other things, the Defendant officers acted with excessive
force and the Defendant Town of East Hartford and Chief Sansom failed to properly
supervise the Defendant Officers. Defendants first argue that Ramos’s claim fails
as a matter of law because a plaintiff cannot prevail on a negligence claim where
he also claims intentional use of excessive force. See e.g., Frappier v. City of
Waterbury, No. 7-CV-1457, 2008 WL 4980362, at *3 (D. Conn. Nov. 20, 2008)
(“Plaintiff may not prevail on a negligence claim when she has brought claims of
intentional use of excessive force and intentional infliction of emotional distress.”).
As Ramos points out, however, other judges within the District of Connecticut have
disagreed.
See e.g., Bussolari v. City of Hartford, No. 14-CV-00149, 2016 WL
4272419, at *4 (D. Conn. Aug. 12, 2016) (“I do not see why a special exception to
this general rule [allowing alternative theories of liability] should or must exist for
claims of intentional and negligent police misconduct in the excessive force
- 55 -
context.”); Olschafskie, 2017 WL 4286374, at *7 (“[O]ther courts in this District have
allowed negligence-based and intent-based claims regarding the same conduct to
proceed to trial, which is consistent with federal pleading rules.”).
In Bussolari, Judge Meyer questioned the rationale behind cases that
refused to allow alternative theories of liability:
Those decisions cited above 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 . . . By contrast, it appears that
Connecticut law allows for claims of negligence against police
officers, including for negligent arrest and use of force . . . Similarly,
Connecticut courts have allowed for recovery under Connecticut's
negligence-based municipal liability statute, Conn. Gen. Stat. § 52577n, in cases involving allegations of excessive force by police
officers.
2016 WL 4272419, at *3-4 (internal citations and quotation marks omitted); see also
Olschafskie, 2017 WL 4286374, at *7. Judge Meyer concluded that “genuine fact
issues remain to allow a jury to consider whether the defendant officers are liable
for intentional torts or negligent torts . . . there are genuine issues of material fact
that are properly left to a jury regarding how defendants—and plaintiff—acted
during the arrest.” Bussolari, 2016 WL 4272419, at *3-4. As the Court has stated
repeatedly, the nature of the Defendants’ conduct is far from clear. Therefore, the
Court will allow the jury to decide whether Ramos can prove intentional or
negligent conduct. As Ramos cannot recover under multiple claims based on the
same conduct and harm, Defendants are not prejudiced.
Defendants next claim that Ramos’s claim must fail because they are
immune. The Court will first consider immunity as applied to the officers involved
- 56 -
at the scene, Defendants Lis, Kaplan, and Cohen. The Court will next consider the
immunity as to the Town of East Hartford and Defendant Sansom. Connecticut
employees may claim governmental immunity under common law for negligence
claims arising from their official acts that are discretionary rather than ministerial
in nature. See, e.g., Spears v. Garcia, 263 Conn. 22, 36 (2003); Belanger v. City of
Hartford, 578 F. Supp. 2d 360, 366 (D. Conn. 2008). “The manner in which a police
officer makes an arrest, including when to use force, is a discretionary act.” See,
e.g., Edwards, 2015 WL 7458501, at *4; Galindez v. Miller, 285 F. Supp. 2d 190, 195
(D. Conn. 2003). Therefore, Defendants Kaplan, Lis, and Cohen are entitled to claim
governmental immunity.
The Court also finds that Defendants Town of East
Hartford and Sansom are entitled to claim governmental immunity.7
There are three exceptions to the governmental immunity for discretionary
acts: “first, 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[;] second, where a statute specifically provides for a cause of action against
a municipality or municipal official for failure to enforce certain laws[;] and third,
where the alleged acts involve malice, wantonness or intent to injure, rather than
negligence.” Spears, 263 Conn. at 36, 818 A.2d 37.
“Courts in this district have applied the identifiable person-imminent harm
exception in the context of excessive force claims based on affirmative acts where
the harm to the individual is so foreseeable as to create just such a duty of care.”
Belanger, 578 F. Supp. 2d at 367 (collecting cases). The Connecticut Supreme
7
The Court discusses the application of governmental immunity to Defendant Town of
East Hartford in more detail in Section V.F.
- 57 -
Court has laid out a three-part test for the identifiable person-imminent harm
exception to apply: “(1) an imminent harm; (2) an identifiable victim; and (3) a public
official to whom it is apparent that his or her conduct is likely to subject that victim
to that harm.” Doe v. Petersen, 279 Conn. 607, 616 (2006); Brooks v. Powers, 165
Conn. App. 44, 54 (2016) (same). For the exception to apply, all three elements
must be proven. Doe, 279 Conn. at 620.
Ramos alleges that Defendants Kaplan, Lis, and Cohen used excessive force
by causing trauma to his head, increased his risk of harm, failed to use generallyaccepted law enforcement tactics, and failed to take measures to protect his health.
He also alleges that Defendants Town of East Hartford and Sansom failed to
properly hire, train, and supervise employees, failed to enforce lawful policies, and
tolerated wrongful policies. Defendants move for summary judgment on Ramos’s
claim in its entirety. In his opposition briefing, however, Ramos fails to address
the full claim and argues only the following: (1) Ramos was an identifiable victim
because he was the person against whom Defendant Lis used force, (2) Ramos was
subjected to an imminent harm while in police custody, and (3) it was apparent to
Defendant Lis that his conduct was likely to cause Ramos that harm because he is
the one who deployed the pepper spray. To the extent that Ramos alleges a
negligence claim, other than the negligence claim against Defendant Lis for
spraying him with pepper spray prior to his arrest, the Court deems it abandoned
and grants Defendants’ Motions for Summary Judgment on that claim.
As to the claim against Defendant Lis, Ramos could constitute an identifiable
victim of the alleged harm, pepper spray, caused by the Defendant Lis’s force if
- 58 -
such force was shown to be excessive. See, e.g. Jefferson v. Reddish, No. 12-CV1543, 2017 WL 62510, at *5 (D. Conn. Jan. 4, 2017) “[A plaintiff] could constitute an
identifiable victim of the alleged harms caused by the force applied if such force is
shown to be unauthorized as excessive.”). As explained above, however, the Court
finds that the undisputed facts show that Defendant Lis did not use excessive force
against Ramos at any point on the night of April 13, 2014. Therefore, because the
Court finds that Defendants Lis did not use excessive force against Ramos or
arrest him in an unreasonable manner as a matter of law, Defendant Lis is entitled
to governmental immunity and the identifiable person-imminent harm exception
does not apply. For the foregoing reasons, Defendants’ Motions for Summary
Judgment on Ramos’s negligence claim is GRANTED.
C.
i.
Count 5 – Wrongful Death Claim
By the Estate Against All Defendants
The Estate brings a wrongful death claim against all Defendants. In
Connecticut, a decedent’s estate may recover “from the party legally at fault for
such injuries just damages together with the cost of reasonably necessary medical,
hospital and nursing services, including funeral expenses.” CONN. GEN. STAT. § 52555(a). As explained above in Section V.B., state governmental actors may claim
immunity for governmental acts that were discretionary and not ministerial.
Governmental acts are “supervisory or discretionary in nature” and ministerial acts
are those “to be performed in a prescribed manner without the exercise of
judgment or discretion.” Ravalese v. Town of East Hartford et al, No. 16-CV-1642,
- 59 -
2019 WL 2491657, at *10 (D. Conn. June 14, 2019) (quoting Mulligan v. Rioux, 229
Conn. 716, 727 (Conn. 1994)) (internal citations and quotation marks omitted).
To determine the nature of Defendants’ actions, the Court must consider the
Estate’s claim against each Defendant. The Estate alleges that Defendant Kaplan
used excessive force against Maldonado and Defendants Kaplan, Lis, and Cohen
failed to provide him seek prompt medical attention.
The decision as to the
appropriate type and amount of force is discretionary and the Court finds
Defendants may be immune unless an exception applies.
The Estate alleges that Defendants Town of East Hartford and Sansom failed
to properly train officers, condoned improper practices, and discouraged officers
from using lifesaving medical treatment to save detainees’ lives. These acts are
discretionary in nature and Defendants Town of East Hartford and Sansom may
claim governmental immunity unless an exception applies.
Defendants argue that they are immune, and the parties dispute whether the
identifiable person-imminent harm exception applies. Defendants Kaplan, Lis, and
Cohen argue that Maldonado was not an identifiable victim and it was not apparent
that their conduct was going to cause him imminent harm. As the Estate correctly
argues, however, “[c]ourts in this district have applied the identifiable personimminent harm exception in the context of excessive force claims based on
affirmative acts where the harm to the individual is so foreseeable as to create just
such a duty of care.” Belanger v. City of Hartford, 578 F. Supp. 2d 360, 367 (D. Conn.
2008) (collecting cases); see also, Keeney v. City of New London, 196 F. Supp. 2d
190, 202 (D. Conn. 2002) (denying summary judgment on wrongful death claim on
- 60 -
the grounds that “officers’ alleged use of force after the plaintiff was handcuffed
posed an apparent and imminent harm to [arrestee]”); see also Jefferson, 2017 WL
62510, at *4 (denying summary judgment on negligence claim where “plaintiff could
constitute an identifiable victim of the alleged harms caused by the force applied if
such force is shown to be unauthorized as excessive”); see also Roguz v. Walsh,
No. 9-CV-1052, 2012 WL 6049580, at *9 (D. Conn. Dec. 5, 2012) (denying summary
judgment on governmental immunity and applying imminent harm exception where
“plaintiff was a clearly identifiable victim to Walsh, and it is undisputed that Walsh
purposefully hit and swung his baton at plaintiff. Plaintiff was put at risk of
imminent harm from Walsh’s hits and baton swings”). Here, Maldonado was an
identifiable victim when Defendant Kaplan tased him, when Defendant Lis punched
him and when Defendant Cohen allegedly pepper sprayed him. There is sufficient
evidence for a jury to conclude that Maldonado was subject to the possibility of
imminent harm and the Defendants were aware that their conduct was likely to
subject Maldonado to that harm. See Marsh v. Town of East Hartford, No. 16-CV928, 2017 WL 3038305, at *8 (D. Conn. July 18, 2017) (denying summary judgment
on governmental immunity where “there [was] sufficient evidence for a jury to
conclude that Marsh was an identifiable victim who was subject to possibility of
imminent harm during the course of the arrest”). Accordingly, as to Defendants
Kaplan, Lis, and Cohen, summary judgment on the Estate’s wrongful death claim
is DENIED.
Defendants Lis and Cohen also argue that the Estate’s wrongful death claim
fails because there is no evidence of proximate cause. They cite Dr. Myerburg’s
- 61 -
testimony that there was no evidence that Maldonado’s head hitting the wall led to
cardiac arrest and ultimately, Maldonado’s death.
104:20-105:7].
[Dkt. 126-7 at 77:18-78:11,
In response, Plaintiff argues that Maldonado’s cause of death is
disputed and cites the medical report which lists “blunt injury of head” as a
contributing cause of Maldonado’s death. [Dkts. 132-7 at 6; see also 132-35 (Gill
Dep.) at 50:5-17 (“I think the precordial and electric shock and the blunt injury of
the head are both kind of the processes that resulted in the death and the cardiac
arrhythmia.”)]. A reasonable jury could conclude that Defendants’ actions were a
proximate cause of Maldonado’s death. For the foregoing reasons, Defendants’
Motion for Summary Judgment on Plaintiff’s wrongful death claim as to Defendants
Kaplan, Lis, and Cohen is DENIED. See Kenney, 196 F. Supp. 2d at 202.
The Court finds, however, that the identifiable victim-imminent harm
exception does not apply to Defendants Town of East Hartford and Sansom.8
Under the exception, “[i]mminent does not simply mean a foreseeable event at
some unspecific point in the not too distant future. Rather, we have required
plaintiffs to identify a discrete place and time period at which the harm will occur.”
Haynes v. City of Middletown, 314 Conn. 303, 318 (Conn. 2014) (quoting Bonington
v. Westport, 297 Conn. 297, 314 (2010) (collecting cases). The Estate argues that
Defendants condoned improper taser use, discouraged officers from performing
lifesaving medical treatment, failed to train officers to perform medical treatment,
Since the Connecticut Supreme Court’s decision in Doe v. Petersen, “the prevailing
opinion of the lower courts in Connecticut appears to be in favor of applying the
identifiable victim/imminent harm exception to municipal immunity, too.” Seri v. Town of
Newtown, 573 F. Supp. 2d 661, 673 (D. Conn. 2008); see also Cooper v. City of Hartford,
No. 7-CV-823, 2009 WL 2163127, at *27 (D. Conn. July 21, 2009) (adopting the “prevailing
opinion”); Gothberg v. Town of Plainville, 148 F. Supp. 3d 168, 193 n.10 (D. Conn. 2015).
8
- 62 -
and ratified use of excessive force. The Estate presents no evidence to establish
an imminent and specific harm and thereby fails to meet its burden to establish the
exception to governmental immunity as a matter of law. See Seri, 573 F. Supp. 2d
at 676 (granting summary judgment for town defendant where plaintiff did not
allege that it, “acting through a specifically identified public official, was on notice
that [plaintiff] was individually subject to a specific and imminent harm so that it
was in a position to make a decision that specifically impacted [plaintiff] and
caused the resulting harm.”); see also Elliott v. Harnett, 9-CV-00948, 2014 WL
4199663, at *8 (D. Conn. Aug. 22, 2014). Because the exception does not apply to
Defendants Town of East Hartford and Sansom, they are entitled to immunity.
Therefore, Defendants’ Motion for Summary Judgment on the Estate’s wrongful
death claim as to Defendants Town of East Hartford and Sansom is GRANTED.
Count 6 – Bystander Emotional Distress Claim
D.
i.
By Ramos Against Kaplan, Lis and Cohen
Ramos brings a claim for bystander emotional distress against Officers
Kaplan, Lis and Cohen. To recover on a claim for bystander emotional distress
under Connecticut law, Ramos must show “(1) he or she is closely related to the
injury victim, such as the parent or the sibling of the victim; (2) the emotional injury
of the bystander is caused by the contemporaneous sensory perception of the
event or conduct that causes the injury, or by arriving on the scene soon thereafter
and before substantial change has occurred in the victim's condition or location;
(3) the injury of the victim must be substantial, resulting in his or her death or
serious physical injury; and (4) the bystander’s emotional injury must be serious,
- 63 -
beyond that which would be anticipated in a disinterested witness and which is not
the result of an abnormal response.” Clohessy v. Bachelor, 237 Conn. 31, 56 (1996).
Defendants argue that Ramos’s bystander emotional distress claim fails as
a matter of law because the undisputed evidence shows he cannot meet the final
prong, serious emotional injury. This prong requires injuries so severe such as to
“warrant a psychiatric diagnosis or otherwise substantially impair the bystander’s
ability to cope with life’s daily routines and demands.” Squeo v. Norwalk Hosp.
Ass’n, 316 Conn. 558, 585 (2015). Defendants argue that Ramos cannot show a
serious emotional injury under either of these methods. First, Defendants note that
Ramos attended only three counseling sessions with Donald Topor, a Licensed
Clinical Social Worker (“LCSW”), even though he had the opportunity to attend ten
sessions through his employer. Ramos has not sought additional treatment since
those three sessions in the summer of 2017 and Defendants claim he has not
received a psychiatric diagnosis. Second, Defendants argue that Ramos’s full-time
employment and pursuit of his master’s degree evidence that he is fully capable of
coping with life’s demands.
In response, Ramos points to evidence which shows a genuine dispute of
material fact. With regard to a psychiatric diagnosis, Ramos cites LCSW Topor
who diagnosed him with major depression, recurrent. LCSW Topor also noted
symptoms which may interfere with Ramos’s ability to cope with activities of daily
life such as depressed mood, diminished interest and pleasure, insomnia,
worthlessness, irritated mood, excessive anxiety, and irritability. Ramos testified
that he is triggered by police officers and celebrating family events.
- 64 -
He also
testified that he has taken time off work because of his symptoms. The Court finds
that a reasonable jury could conclude that Ramos has established a claim for
bystander emotional distress. Therefore, Defendants’ Motions for Summary
Judgment on this claim are DENIED.
E.
i.
Count 7 – False Arrest Claim
By Ramos Against Lis and Cohen
Ramos brings a state law claim for false arrest against Officers Lis and
Cohen. These claims must be dismissed for the same reasons that they were
dismissed under § 1983. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003)
(“Claims for false arrest or malicious prosecution, brought under § 1983 to
vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable
seizures, are ‘substantially the same’ as claims for false arrest or malicious
prosecution under state law.”). As explained above in Section IV.A.1, the Court
found that the undisputed facts show that there was probable cause for Officer Lis
to arrest Ramos. “It is well-established that probable cause is a complete defense
to claims of false imprisonment and false arrest.” Johnson v. Ford, 496 F. Supp.
2d 209, 213 (D. Conn. 2007); see also David v. Rodriguez, 364 F.3d 424, 433 (2d Cir.
2004). Because Officer Lis has established a complete defense, Ramos’s false
arrest claims fail as a matter of law. Therefore, Defendants’ Motions for Summary
Judgment on the false arrest claim are GRANTED.
F.
i.
Count 8 – Conn. Gen. Stat. § 52-557n Claim
By Ramos and the Estate Against Town of East Hartford
- 65 -
Conn. Gen. Stat. § 52-557n provides that a municipality shall be liable for
damages to person or property caused by the negligent acts or omissions of its
employees acting within the scope of their employment, provided that such acts or
omissions do not constitute “criminal conduct, fraud, actual malice or willful
misconduct.” See CONN. GEN. STAT. § 52-557n. Defendant Town of East Hartford
argues that it is entitled to governmental immunity to the same extent that the
individual defendants are entitled to such immunity on Ramos’s negligence claim.
See CONN. GEN. STAT. § 52-557n(a)(2)(B); Cooper, 2009 WL
The Court agrees.
As noted above, the Defendants’ actions are discretionary
2163127, at *27.
governmental acts, thus Defendant Town of East Hartford is immune for the acts
or omissions of its officers unless an exception applies. The Court previously
found that the identifiable person-imminent harm exception does not apply, and
the Defendants are immune from Plaintiff’s negligence claim. Therefore, Defendant
Town of East Hartford’s Motion for Summary Judgment on Plaintiffs’ § 52-557n
claim is GRANTED.
G.
i.
Count 9 – Conn. Gen. Stat. § 7-465 Claim
By Ramos and the Estate Against Town of East Hartford
Conn. Gen. Stat. § 7-465 provides that a municipality shall indemnify its
employees acting within the scope of their employment for all infringement of civil
rights or damage to person or property unless the damage was the result of a willful
or wanton act. See CONN. GEN. STAT. § 7-465. Defendant Town of East Hartford is
only liable to indemnify Defendants against Ramos’s negligence claim. Because
the negligence claim fails and there is no other claim for which Defendant Town of
- 66 -
East Hartford can indemnify Defendants, Defendant Town of East Hartford’s Motion
for Summary Judgment on Plaintiffs’ § 7-465 claim is GRANTED.
VI.
Conclusion
For the foregoing reasons, Defendants’ Motions for Summary Judgment are
GRANTED IN PART and DENIED IN PART. Defendants’ Motions for Summary
Judgment are GRANTED are to the following claims: (1) unreasonable search and
seizure by Ramos against Defendant Lis; (2) excessive force by Ramos against
Defendant Lis; (3) failure to intervene by the Estate against Defendants Kaplan, Lis,
and Cohen; (4) Monell by Ramos and the Estate against Defendants Town of East
Hartford and Sansom; (5) Connecticut Constitution Articles 7 and 9 by Ramos and
the Estate against all Defendants; (6) negligence by Ramos and the Estate against
all Defendants; (7) wrongful death by the Estate against Defendants Town of East
Hartford and Sansom; (8) false arrest by Ramos against Defendants Lis and Cohen;
(9) Conn. Gen. Stat. § 52-557n by Ramos and the Estate against Defendant Town of
East Hartford; and (10) Conn. Gen. Stat. § 7-465 by Ramos and the Estate against
Defendant Town of East Hartford.
The following claims remain for trial: (1)
excessive force by the Estate against Defendants Kaplan, Lis, and Cohen; (2)
deliberate indifference by the Estate against Defendants Kaplan, Lis, and Cohen;
(3) wrongful death by the Estate against Defendants Kaplan, Lis, and Cohen; and
(4) bystander emotional distress by Ramos against Defendants Kaplan, Lis, and
Cohen.
- 67 -
IT IS SO ORDERED.
/s/
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 2, 2019.
- 68 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?