Cook v. Phillips et al

Filing 51

ORDER. The defendants' 37 Motion for Summary Judgment is DENIED. This case shall proceed to trial on all claims that survived the Court's initial review order. As the parties have not yet attempted to resolve the dispute in this case through mediation, this case is REFERRED to a Magistrate Judge for mediation.Signed by Judge Michael P. Shea on 1/18/2023. (Britt, Joshua)

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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JERRELL COOK,
Plaintiff,
v.
BRENDAN PHILLIPS, et al.,
Defendants,

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Case No. 3:19cv1982 (MPS)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff, Jerrell Cook, brought this civil rights action against Stamford police
officers related to an arrest that occurred on January 8, 2019. Compl., ECF No. 1. The Court
referred the plaintiff’s complaint to a U.S. Magistrate Judge for a recommended initial review
ruling. ECF No. 10. Magistrate Judge Spector subsequently recommended dismissing some
claims and terminating some defendants as parties to this action. Recommended Ruling, ECF
No. 11 at 8-9. But Judge Spector also recommended permitting plaintiff to proceed with the
following claims against defendants Derocco, Leachan, and Phillips: (1) a Fourth Amendment
search and seizure claim; (2) a Fourth Amendment excessive force claim; and (3) state law
assault and battery claims. Id. at 8. The Court adopted Judge Spector’s recommended ruling in its
entirety. ECF No. 14.
The remaining defendants, Officers Derocco, Leachan, and Phillips, have filed a motion
for summary judgment on all remaining claims. Defs.’ Mot. for Summ. J. ECF No. 37. This
motion asserts that: (1) plaintiff cannot establish the merits of his constitutional tort claims; (2)
the defendants are protected by qualified immunity with respect to plaintiff’s constitutional tort
claims; and (3) the defendants were statutorily justified in their use of force with respect to
plaintiff’s state law tort claims. Id. For the reasons that follow, the defendants’ motion for

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summary judgment is DENIED.
FACTS 1
The claims brought in this action pertain to an incident in which the defendants arrested
plaintiff. ECF No. 1 at 3-6. On the night of January 8, 2019, a confidential informant told
Linnehan that someone was actively selling cocaine at the intersection of Pacific Street and
Henry Street. ECF No. 37-1 at 2, ¶¶ 5-6. The alleged drug dealer was described as a tall, black
man with a “thin beard and small goatee,” who was wearing dark colored clothing and a baseball
cap. Id. at ¶ 8. The confidential informant had previously provided Stamford police officers with
“credible and reliable information,” and the intersection of Pacific and Henry was known to be a
“high drug and crime area.” Id., ¶¶ 7, 9.
After receiving the confidential informant’s tip, Linnehan began surveilling Pacific Street
from an unmarked car with DeRocco and Phillips. Id. at 2-3, ¶¶ 11-12. From their parked car, the
defendants spotted plaintiff walking northbound on Pacific Street. Id. at 3, ¶ 17. The defendants
immediately recognized the plaintiff and knew him to be “the subject of numerous prior
narcotics investigations and arrests by Stamford police officers.” Id., ¶¶ 17-18. Further, plaintiff

The facts noted within this order are drawn from the complaint and the defendants’ Local Rule 56(a)(1)
Statement of Undisputed Material Facts and its supporting exhibits. ECF No. 37-1. Plaintiff has filed a response to
the defendant’s summary judgment motion. ECF No. 42. But this filing does not include a Local Rule 56(a)(2) State
of Facts in Opposition to Summary Judgment. Id.
1

After being directed to do so by the Court, the defendants filed a Notice to Self-Represented Litigant, as
required by Local Rule 56(b). See ECF No 39; ECF No. 40. This Notice informed plaintiff of the requirement to
support denials of the movant’s version of facts with evidence. The Notice also warned plaintiff that a failure to
submit evidence in support of his denials of fact could result in the Court’s granting the defendants’ summary
judgment motion if it showed that the defendants were entitled to judgment as a matter of law.
Because plaintiff has not complied with Local Rules, all material facts set forth in the defendants’ 56(a)(1)
Statement of Fact are deemed admitted to the extent that the factual assertions are not undermined by the exhibits
submitted in support of summary judgment. See D. Conn. L. Civ. R. 56(a)1 (“All material facts set forth in said
statement and supported by the evidence will be deemed admitted unless controverted by the statement required to
be filed and served by the opposing party in accordance with Rule 56(a)2.”)

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matched the confidential informant’s description of the person allegedly selling drugs at the
intersection of Pacific and Henry. Id. at 4, ¶ 21.
What happened next is disputed in sworn statements that the defendants have submitted
in support of their request for summary judgment and in the plaintiff’s deposition testimony.
Defendants’ Affidavits
In support of summary judgment, Linnehan and DeRocco have submitted affidavits
recounting what happened on the night of plaintiff’s arrest. ECF No. 37-2; ECF No. 37-3.
According to these affidavits, plaintiff appeared to be holding a clear knotted plastic bag in his
hand as he walked toward the defendant’s unmarked car. ECF No. 37-1 at 4, ¶¶ 22-23. Through
training and experience, the defendants knew that drug dealers often use such bags to package
narcotics. Id., ¶ 24.
When plaintiff walked to within approximately five feet of the defendants’ car, he
appeared to notice their presence. Id., ¶ 25. Subsequently, plaintiff put the plastic bag that he had
been holding into his mouth. Id., at 5, ¶ 26. Through training and experience, the defendants
knew that drug dealers sometimes swallow narcotics in their possession when they believe that
they are about to be detained by police. Id., ¶ 27.
The defendants exited their car to approach plaintiff. Id. ¶¶ 28, 30. Plaintiff “tried to
quickly walk away from them.” Id. ¶ 30. As he walked away, Plaintiff appeared to be chewing,
and attempting to swallow, the baggie that he had just put in his mouth. Id., ¶ 31. The defendants
ordered plaintiff to stop walking, but plaintiff ignored this command. Id., ¶ 32. The defendants
then caught up to plaintiff and ordered him to open his mouth. Id. at 6, ¶ 33. But plaintiff
refused. Id.
At this point, the defendants were concerned that plaintiff was destroying evidence of a

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crime and putting his own safety at risk by swallowing what they thought to be cocaine. Id., ¶ 34.
So DeRocco grabbed plaintiff by the jaw while Linnehan “touched the front of [plaintiff’s] face
in an attempt to manipulate any narcotics inside his mouth so that they could be removed.” Id.,
¶¶ 35-38. In response, plaintiff bit Linnehan’s finger and lowered his body to the ground. Id. at
6-7, ¶¶ 38-40. Phillips then punched plaintiff in an effort to gain his compliance. Id. at 7, ¶ 41.
Eventually, the defendants were able to place plaintiff in handcuffs. Id., ¶ 42. But, by this
time, plaintiff had already swallowed whatever had been in his mouth. Id., ¶ 43.
Plaintiff was criminally charged with counts of interfering with an officer and assaulting
an officer. Id. at 8, ¶ 53. Eventually, plaintiff pled guilty to the single count of interfering with an
officer. Id., ¶ 54.
Plaintiffs’ Deposition Testimony
In support of summary judgment, the defendants have also submitted a transcript of
plaintiff’s deposition testimony. ECF No. 37-4; ECF No. 48. 2 According to plaintiff, on the night
of his arrest, his girlfriend dropped him off on Pacific Street so that he could talk with a friend.
ECF No. 48 at 29-30. Although plaintiff admits to drug use, and appears to concede that he has
sold drugs in the past, he denies that he was selling drugs on January 8, 2019. Id., at 42-43, 55,
68-69.
As plaintiff walked to meet his friend, he passed a parked car in which three white men—
the defendants—were seated. Id. at 33. Plaintiff surmised that these white men were police
officers. Id. at 33. 3
Initially, the defendants submitted excerpts of plaintiff’s deposition testimony. ECF No. 37-4. To ensure
that it had a full and accurate understanding of the testimony that the defendants relied upon in support of summary
judgment, the Court later ordered the defendants to submit the entire deposition transcript. ECF No. 47. The
defendants promptly complied with this order. ECF No. 48.
2

Plaintiff insinuates, but does not explicitly testify, that it would have been unusual for three white people
to gather on that part of Pacific Street unless they were police officers. ECF No. 48 at 33.
3

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After plaintiff walked past the defendants’ car, he heard its doors open. Id. at 41. At this
point, plaintiff knew that he would be stopped by the police. Id. Plaintiff explained: “Whenever
[police] see somebody who got a record in that neighborhood at any time, they are going to jump
out at you, pat, frisk you and … open your mouth … they always do.” Id. at 41-42.
DeRocco approached plaintiff from behind and, without warning, placed him in a
chokehold. Id. at 43. As plaintiff struggled to breathe, Linnehan reached his hand into plaintiff’s
mouth. Id. at 45-46, 60-61. Next, Phillips repeatedly punched plaintiff in the face. Id. at 51-52,
55. After being choked for approximately ten seconds, plaintiff fell unconscious. Id. at 49-50.
Plaintiff denies biting Linnehan while conscious but cannot attest to what may have happened
when Linnehan’s hand was in his mouth while he was unconscious. Id. at 46-47.
After plaintiff regained consciousness, he was taken to the police station. Id., at 58.
Around this time, Phillips told plaintiff that he and his father were both “scum bags.” Id. at 59.
And the defendants began to assert—falsely—that plaintiff had swallowed narcotics. Id. at 5960.
In jail, plaintiff asked to be taken to the hospital. Id. at 63-64. And, after a few hours,
officers granted this request. Id. at 64. At the hospital, a technician performed an X-ray showing
that plaintiff did not have a baggie of drugs in his stomach. Id. at 66. 4 However, a medical
professional did detect cocaine and marijuana in plaintiff’s bloodstream. Id. at 68-69. Plaintiff
attributes this finding to recent drug use. Id.
At the hospital, plaintiff was not diagnosed with traumatic injuries. Id. at 71. But doctors
did note cut/abrasion injuries to his lip. Id. at 70-71. Doctors also appear to have determined that
plaintiff fainted. Id. at 72-73. Plaintiff attributes his loss of consciousness to an inability to

4

Plaintiff did not retain a record of his alleged X-ray examination. ECF No. 48 at 67-68.

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breathe. Id. at 79.
LEGAL STANDARD
A motion for summary judgment may be granted only where there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of law. Rule
56(a), Fed. R. Civ. P. The moving party bears the initial burden of informing the court of the
basis for its motion and identifying the admissible evidence it believes demonstrates the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party meets this burden, the nonmoving party must set forth specific facts showing that
there is a genuine issue for trial. Wright v. Goord. 554 F. 3d. 255, 266 (2d Cir. 2009). He or she
cannot “rely on conclusory allegations or unsubstantiated speculation’ but ‘must come forward
with specific evidence demonstrating the existence of a genuine dispute of material fact.”
Robinson v. Concentra Health Servs., 781 F.3d 42, 44 (2d Cir. 2015) (quotation marks and
citation omitted). In deciding a motion for summary judgment, the court must draw all
reasonable inferences from the evidence in favor of the non-moving party. Niagara Mohawk
Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003).
DISCUSSION
The defendants contend that they are entitled to summary judgment on plaintiff’s § 1983
claims because: (1) the undisputed facts do not permit an inference that they violated plaintiff’s
Fourth Amendment rights; and (2) they are protected by qualified immunity. ECF No. 37 at 1.
The defendants further contend that they are entitled to summary judgment on plaintiff’s state
law assault and battery claims because they were statutorily justified in their use of force. Id. at
1-2. The Court finds that the defendants’ summary judgment filings present questions of material
fact on which a reasonable juror could return verdicts in plaintiff’s favor. Thus, the Court will

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deny the motion for summary judgment.
A.

Search and Seizure Claim

The Court has permitted plaintiff to proceed with a Fourth Amendment claim against the
defendants on the theory that they unlawfully detained and searched him. ECF No. 11 at 6-7. The
Fourth Amendment protects the public from “unreasonable searches and seizures.” U.S. Const.,
amend. IV. “Warrantless searches and seizures are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated exceptions.”
United States v. Weaver, 9 F. 4th 129, 138 (2d Cir. 2021) (en banc) (internal quotation marks and
citation omitted). As an exception relevant to this case, the U.S. Supreme Court has longpermitted brief, investigatory “Terry stops” when a policer officer has “a reasonable basis to
think that the person to be detained is committing or has committed a criminal offense.” United
States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (internal quotation marks and citation
omitted); see also Terry v. Ohio, 392 U.S. 1, 22-25 (1968).
The defendants argue that they had a reasonable basis to think that plaintiff was
committing, or had committed, a crime just prior to their search of his person. ECF No. 38 at 6-7.
In support of this argument, they rely upon undisputed evidence that a “reliable” informant told
them that a person matching plaintiff’s appearance was actively selling drugs in a high-crime
area, and that they recognized plaintiff as someone who had a history of drug-related
investigations and arrests. ECF No. 37-2 at 2-3, ¶¶ 4-6; ECF No. 37-3 at 2-3, ¶¶ 5-11.
Considering just these undisputed facts, 5 it is not clear that the defendants had the requisite basis
to conduct a Terry stop. See Dancy v. McGinley, 843 F.3d 93, 109 (2d. Cir. 2016) (“[M]ere

The defendants assert that they had additional reasons to suspect plaintiff of criminal activity. Most
significantly, they claim to have witnessed plaintiff swallowing a baggie of what looked to be cocaine. ECF 37-2 at
3, ¶¶ 7-10; ECF No. 37-3 at 4, ¶¶ 12-17. However, plaintiff’s deposition testimony creates a dispute of fact as to
whether he engaged in this suspicious conduct.
5

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presence near someone who somewhat matches a vague description is not a reasonable basis for
suspicion.”) Even if they did, however, they would not be entitled to summary judgment,
because the defendants ventured well beyond police conduct permitted at a Terry stop. When
conducting a Terry stop, police officers may detain and question a suspect to the extent
“necessary to confirm or dispel the reasonable suspicion that justifies the stop in the first place.”
Grice v. McVeigh, 873 F.3d 162, 167 (2d Cir. 2017). In addition, when they have “reason to
believe that the detained individual is armed and dangerous, [they] may conduct a patdown
search for concealed weapons.” U.S. v. Padilla, 548 F.3d 179, 187 (2d Cir. 2008). Police are not
permitted to effectuate a Terry stop by sneaking behind a suspect and placing him or her in a
chokehold, which is the version of events supported by the plaintiff’s deposition testimony. See
Tuuamalemelo v. Greene, 946 F. 3d 471, 477-78 (9th Cir. 2019) (“There is a robust consensus
among the circuits that the use of a chokehold on a non-resisting person violates the Fourth
Amendment.”) And a lawful Terry stop does not authorize officers to conduct a non-consensual
search of a suspect’s bodily cavities for evidence of a crime. See Adams v. Williams, 407 U.S.
143, 146 (1972 (“The purpose of [a Terry] search [for weapons] is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of violence.”) Because the
search and seizure described in plaintiff’s deposition testimony is far more intrusive than any
actions allowed in a mere Terry stop, the defendants must rely on something more than just
reasonable suspicion to establish an entitlement to summary judgment.
The defendants suggest—in the context of addressing plaintiff’s excessive force claim—
that the Fourth Amendment permits a forcible search of a suspect’s mouth when police officers
witness him or her attempt to swallow illegal drugs. ECF No. 38 at 9-10. The Court agrees with
this suggestion. See Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 313-14 (S.D.N.Y. 1998)

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(collecting cases in which courts have affirmed the constitutionality of mouth searches when a
suspect was witnessed attempting to swallow evidence of a crime). But the defendants’ summary
judgment filings present an unresolved question of fact as to whether plaintiff was swallowing
suspected drugs at the time of his arrest. In affidavits, Linnehan and DeRocco claim that the
plaintiff was doing just that. ECF 37-2 at 3, ¶¶ 7-10; ECF No. 37-3 at 4, ¶¶ 12-17. But, in his
deposition testimony, plaintiff clearly conveyed that he was not. ECF No. 48 at 41-42, 59-60, 66.
The Court cannot resolve this factual dispute through a summary judgment ruling.
As a final argument, the defendants contend that they could search plaintiff’s mouth
incident to his lawful arrest. ECF No. 38 at 7-8. This argument has surface logic. Plaintiff was
held on multiple criminal charges and eventually pled guilty to the offense of interfering with
law enforcement. ECF No. 48 at 57-58. Once they lawfully arrested him for a crime, the
defendants could search plaintiff’s mouth. See Spicer v. Burden, 564 F. Supp. 3d 22, 30 (D.
Conn. 2021) (“Upon arresting a suspect the police may engage in a search incident to arrest
without additional grounds to believe that the suspect has a weapon, contraband, or evidence on
their person.”) It is not clear, however, whether the defendants searched plaintiff’s mouth before
or after his lawful arrest.
The search and seizure described in plaintiff’s deposition testimony occurred suddenly
and ended before plaintiff would have had any opportunity to interfere with law enforcement.
ECF No. 48 at 41-45. While plaintiff’s guilty plea may estop him from arguing that he was
cooperative with law enforcement throughout his entire interaction with the defendants, it does
not preclude a finding that the defendants violated his Fourth Amendment rights prior to a lawful
arrest. That is, the guilty plea does not indicate when in relation to the search of the plaintiff’s
mouth he interfered with the officers and, therefore, could be lawfully arrested. Thus, the

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defendants have not shown that plaintiff cannot succeed on his unlawful search and seizure
claim. See Sanabria v. Martins, 568 F. Supp. 2d 220, 226 (D. Conn. 2008) (finding that a
plaintiff’s guilty plea will not estop him or her from bringing a § 1983 claim “so long as the
plaintiff can prevail” on the § 1983 claim “without negating an element of the offense.” (internal
quotation marks and citation omitted)).
B.

Excessive Force Claim

The Court has permitted plaintiff to proceed with a Fourth Amendment claim against the
defendants on the theory that they utilized excessive force against him. ECF No. 11 at 6.
“[C]laims that law enforcement officers have used excessive force ... in the course of an arrest,
investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth
Amendment and its reasonableness standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). To
evaluate the reasonableness of an officer’s use of force, courts should consider the particular
facts and circumstances of a case, including “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. “Defendants are liable
as long as the force used exceeded the force needed for the factual circumstances and the fact
that Plaintiff may not have sustained serious long lasting harm is not dispositive.” Graham v.
City of New York, 928 F. Supp. 2d 610, 618 (E.D.N.Y. 2013).
Here, the defendants contend that they were permitted to forcefully search plaintiff’s
mouth because he had “no constitutional right to secrete evidence.” ECF No. 38 at 9. Setting
aside disputes about the degree of force utilized by the defendants (i.e., whether DeRocco
choked plaintiff into a state of unconsciousness), the validity of the defendants’ summary
judgment argument is premised on the notion that plaintiff seemed to be swallowing drugs prior

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to the defendants’ use of force. However, plaintiff has denied that he was swallowing drugs prior
to his interaction with the defendants. Assuming that plaintiff was—as he claims—simply
walking down the street when confronted by the defendants, then a jury could easily conclude
that the defendants’ use of force was unreasonable. See Graham, 928 F. Supp. 2d at 619-20
(collecting cases in which allegations of significant force applied against non-resisting suspects
supported findings of excessive force). Thus, the defendants have not shown that plaintiff cannot
succeed on his excessive force claim.
C.

Qualified Immunity

The defendants also contend that they are entitled to summary judgment on plaintiff’s §
1983 claims because they are protected by qualified immunity. ECF No. 38 at 11-13. Qualified
immunity shields state officials from § 1983 liability unless evidence shows: “(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly established at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal
quotation marks omitted).
For reasons just noted, the Court finds that the evidence in the record—when viewed in
the light most favorable to plaintiff—does not preclude a finding that the defendants violated his
Fourth Amendment rights. And, with regard to the second prong of qualified immunity analysis,
the defendants advance nothing more than a brief, conclusory argument that “[i]t was reasonable
for DeRocco, Linnehan, and Phillips to believe their conduct was lawful.” ECF No. 38 at 13. In
any event, no reasonable officer could believe that it was lawful to conduct a Terry stop by
sneaking behind a suspect and placing him in a chokehold.
In his deposition testimony, plaintiff asserted that he was simply walking down the street
when the defendants suddenly choked and punched him and forcefully placed a hand in his

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mouth. While the record might be construed as providing the defendants with a basis for
performing an investigatory Terry stop of plaintiff, the conduct alleged in plaintiff’s deposition
testimony obviously exceeded anything permitted within the scope of a mere Terry stop. See
Bailey, 743 F.3d at 332 (Police officers may “temporarily to detain a person and [ ] pat him down
for weapons” in the course of a Terry stop.) Thus, the defendants are not entitled to summary
judgment on the basis of qualified immunity.
D.

Assault and Battery Claims

The Court has permitted plaintiff to proceed with state law assault and battery claims
based on the same allegations of fact supporting his constitutional excessive force claim. ECF
No. 11 at 6. As a preliminary matter, the defendants appear to argue that plaintiff did not actually
bring these state law claims in his complaint. ECF No. 38 at 13. But in a section of the complaint
titled “claims for relief,” plaintiff asserts that he brings “assault and battery” claims against the
defendants. ECF No. 1 at 7. And he further asserts that the defendants’ “actions violated
Connecticut state law.” Id. Thus, the Court continues to construe plaintiff’s pro se complaint as
bringing state law assault and battery claims against the defendants.
The defendants go on to contend that they are entitled to summary judgment because
their use of force was justified by C.G.S. § 53a-22(b). This statute provides:
[A] peace officer … is justified in using physical force upon
another person when and to the extent that he or she reasonably
believes such use to be necessary to: (1) Effect an arrest or prevent
the escape from custody of a person whom he or she reasonably
believes to have committed an offense, unless he or she knows that
the arrest or custody is unauthorized; or (2) defend himself or
herself or a third person from the use or imminent use of physical
force while effecting or attempting to effect an arrest or while
preventing or attempting to prevent an escape.
Connecticut appellate courts have interpreted C.G.S. § 53a-22(b) as permitting a police officer’s

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use of force essentially to the same extent as permitted by the Fourth Amendment. See State v.
Smith, 73 Conn. App. 173, 198 (2002) (citing U.S. Supreme Court Fourth Amendment
precedent—specifically, Graham v. Connor, 490 U.S. 386 (1989)— to support its interpretation
of statute).
The defendants’ summary judgment argument fails because it is premised on a version of
facts at odds with plaintiff’s deposition testimony. Since the Court has found that a genuine issue
of material fact exists with respect to plaintiff’s excessive force claim, “it follows that similar
questions arise as to the reasonableness of [the defendants’] use of force under state law.”
Anglero v. City of Hartford, 3:16-cv-1425(AVC), 2020 WL 13250192, *11 (D. Conn. Feb. 19,
2020). Thus, the Court denies the defendants’ request for summary judgment on plaintiff’s state
law assault and battery claims.
Conclusion
The defendants’ Motion for Summary Judgment, [Doc. No. 37], is DENIED. This case
shall proceed for trial on all claims that survived the Court’s initial review order.
SO ORDERED at Hartford, Connecticut, this 18th day of January 2023.

/s/
Michael P. Shea, U.S.D.J.

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