BAEZ v. CONNELLY et al

Filing 48

MEMORANDUM AND ORDER denying 41 Motion for Summary Judgment. So Ordered by Chief Judge Mary M. Lisi on 9/14/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
SANDY BAEZ,
Plaintiff,
vs.

CA 10-399-ML

MR. CONNELLY, et al.,
Defendants.1
MEMORANDUM AND ORDER
Before this Court is Defendant John Kleczkowski’s Motion for Summary Judgment (Doc.
#41) (“Motion for Summary Judgment” or “Motion”). Plaintiff Sandy Baez (“Plaintiff” or “Baez”)
has filed Plaintiff’s Reply to Defendant John Kleczkowski’s Motion for Summary Judgment (Doc.
#46) (“Objection”). For the reasons stated below, the Motion is DENIED.
DISCUSSION
I.

Law
A.

Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56, a motion for summary judgment should be
granted only “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute 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, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

1

Defendant John Kleczkowski (“Defendant” or Kleczkowski”) is the only remaining Defendant
in this action. See Sandy Baez v. Mr. Connelly, et al., C.A. No. 10-339-ML (D.R.I. June 16, 2011); see
also Sandy Baez v. Mr. Connelly, et al., No. 11-1787 (1st Cir. April 19, 2012). In addition, the claims
against Kleczkowski in his official capacity have been dismissed. See Sandy Baez v. Mr. Connelly, et
al., C.A. No. 10-339-ML, slip op. at 14-16.
The facts giving rise to this lawsuit are recounted in detail in this Court’s Memorandum and
Order of June 16, 2011, see id. at 1-3, and need not be repeated here.

“[A] ‘material fact’ is one that has the potential of affecting the outcome of the case.” Calero-Cerezo
v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004)(citing Anderson, 477 U.S. at 248-50).
The burden to show the absence of a genuine issue of material fact rests on the party moving
for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party must
demonstrate that, “with respect to each issue on which she would bear the burden of proof at trial,
... a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)(citing Celotex Corp., 477 U.S. at 324).
In considering a motion for summary judgment, the Court views “‘the facts in the light most
favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.’”
Bienkowski v. Northeastern Univ., 285 F.3d 138, 140 (1st Cir. 2002)(citation omitted). The Court
does not “weigh the credibility of the testimony,” but presumes “that a rational factfinder would
accept it as stated by the witness.” Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 (1st Cir. 2002).
However, “‘[t]he mere existence of a scintilla of evidence’ in favor of the nonmoving party is
insufficient to defeat summary judgment.” Barreto-Rosa v. Varona-Mendez, 470 F.3d 42, 45 (1st
Cir. 2006)(quoting Anderson, 477 U.S. at 252). Further, the Court may ignore “conclusory
allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
B.

Legal Standard under § 1983

Section 1983 “‘creates a remedy for violations of federal rights committed by persons acting
under color of state law.’” Sanchez v. Pereira-Castillo, 590 F.3d 31, 40 (1st Cir. 2009)(quoting
Haywood v. Drown, 556 U.S. 729, 731, 129 S.Ct. 2108, 2111, 173 L.Ed.2d. 920 (2009)). Liability
2

under § 1983 requires three elements: deprivation of a right, a causal connection between the actor
and the deprivation, and state action. Id. at 41 (citing 42 U.S.C. § 1983). State actors may be
immune from suit on the basis of qualified immunity. Id.
II.

Application to Plaintiff’s claims
Plaintiff alleges that: after initially fleeing, when the police caught up to him he “immediately

went down on his knees, and put his hands behind his back,” (Complaint (Doc. #1) ¶ 18); “[t]he first
officer to reach him was MR. [John] Kleczkowski, the Resident Agent in-charge of the operation,
who upon getting to plaintiff [] pistol whipped across plaintiff’s left eye,” (id. ¶ 20); “Plaintiff was
injured above his eye after the officer pistol whipped him across the left eye,” (id. ¶ 21); as a result,
Plaintiff “suffered pain and cut to his left eye lid,” (id. ¶ 50); and he was not struggling when
apprehended, (id. ¶¶ 24, 40). Plaintiff reiterated his claims that Defendant Kleczkowski hit him on
the left side of his eye with a gun and that he had ceased resisting in an exhibit attached to his
Objection to the Motion. (Objection, Ex. 1 (excerpt of Plaintiff’s deposition testimony) at 2-3.)
Defendant states that: “[b]y the time that Kleczkowski reached Baez, Baez had already been
tackled by another officer and was continuing to struggle,” (Defendant John Kleczkowski’s
Statement of Undisputed Facts (“SUF”) ¶ 8); “[p]rior to Baez being tackled by another officer,
Kleczkowski did not see Baez go down on his knees with his hands behind his back,” (id. ¶ 9); “[a]t
no time did Kleczkowski ever strike Baez, let alone use a gun to strike him,” (id. ¶ 10); and “[d]uring
the course of Baez resisting arrest, Baez sustained a minor cut that did not require any medical
attention,” (id. ¶ 13). In a declaration attached to his memorandum, Defendant attests that: he was
not the first to reach Baez, (Memorandum in Support of Defendant John Kleczkowski’s Motion for
Summary Judgment (“Defendant’s Mem.”), Ex. 6 (Declaration of John Kleczkowski (“Kleczkowski
3

Decl.”) ¶ 7); he “did not see Baez go down on his knees with his hands behind his back as though
he was surrendering,” (Kleczkowski Decl. ¶ 8); Baez was tackled to the ground by another officer,
(id.); when Kleczkowski reached Baez he was struggling with other officers who were trying to
subdue him, (id. ¶ 9); he then placed handcuffs on Baez, (id.); he “never struck Baez, nor did [he]
ever use a gun to strike Baez,” (id. ¶ 10); and he noticed that Baez had a small cut above his left eye,
but did not know how Baez received the cut, (id. ¶ 11).
Defendant contends that he is entitled to summary judgment because he is protected by
qualified immunity. (See Defendant’s Mem. at 1, 5.) He further contends that “summary judgment
is proper because Baez’s cut that he received shows that the force that was used was de minimis”
and that “[m]inor physical injuries are insufficient to support an inference that the [defendant] used
inordinate force to effect the intended arrest.” Defendant’s Mem. at 9 (quoting Dean v. City of
Worcester, 924 F.2d 364, 369 (1st Cir. 1991))(second alteration in original).
The Court first notes that although Plaintiff failed to submit a statement of disputed facts
pursuant to District of Rhode Island Local Rule 56(a)(3), he filed a verified Complaint, see
Complaint at 11, and attached to his Objection an excerpt from his deposition testimony, given under
oath, which is consistent with the allegations in the Complaint, see Objection, Ex. 1 at 2-3. “It is
well settled ... that the language of Rule 56(e) does not mean that a moving party is automatically
entitled to summary judgment if the opposing party does not [properly] respond.” Baldwin v.
Tessier, No. Civ.A. 05-10898-DPW, 2006 WL 753244, at *3 (D. Mass. Mar. 22, 2006)(second
alteration in original) (quoting de la Vega v. San Juan Star, Inc., 377 F.3d 111, 115 (1st Cir. 2004));
see also id. (“Thus, even if the non-moving party presents little or no evidence in opposition, ‘[t]he
court must first inquire whether the moving party has met its burden to demonstrate undisputed facts
4

entitling it to summary judgment as a matter of law’ before granting summary judgment.”) (quoting
De La Vega, 377 F.3d at 115-16); Fed. R. Civ. P. 56(e).2 The Court finds that, although Plaintiff did
not properly address Defendant’s SUF, he has adequately supported his factual assertions.
With regard to Defendant’s argument that Plaintiff’s “minor injury” demonstrates that the
force used was “de minimis,” Defendant’s Mem. at 9, the Court is not persuaded. In addressing an
excessive force claim brought under § 1983, the Court’s analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged application of force. Graham v. Connor,
490 U.S. 386, 394, 109 S.Ct. 1865,1870, 104 L.Ed.2d 443 (1989). The Supreme Court has stated
that when “the excessive force claim arises in the context of an arrest or investigatory stop of a free
citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment
....” Id.; see also id. at 395 (“all claims that law enforcement officers have used excessive force
–deadly or not–in the course of an arrest ... should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard”). That analysis “requires careful attention to the facts and circumstances
of each particular case, including the severity of the crime at issue, whether the subject 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, and “must embody allowance for the fact that police

2

Federal Rule of Civil Procedure 56(e) provides that:

If a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials–including the
facts considered undisputed–show that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e) (bold added).

5

officers are often forced to make split-second judgments–in circumstance that are tense, uncertain,
and rapidly evolving–about the amount of force that is necessary in a particular situation,” id. at 39697.
Here, Plaintiff admits that he initially fled. (See Complaint ¶ 17; Objection, Ex. 1 at 1.)
However, he also alleges that when he saw the officer approach him, he immediately went down on
his knees and put his hands behind his back. (Complaint ¶ 18; Objection, Ex. 1 at 2.) Kleczkowski
states that he did not see Baez go down on his knees with his hands behind his back, but, rather, saw
him struggling with another officer. (SUF ¶¶ 8-9; Kleczkowski Decl. ¶ 8.) If Plaintiff’s allegation
that he was no longer resisting arrest is accepted as true, then the alleged use of force–hitting Baez
on the side of his head with a gun–does not strike this Court as “de minimis.”

Although the

severity of the injury is a factor which may be considered, see Bastien v. Goddard, 279 F.3d 10, 14
(1st Cir. 2002), the First Circuit has explicitly stated that a serious injury is not a prerequisite to
recovery, id.;3 see also id. (“[A] trialworthy ‘excessive force’ claim is not precluded merely because
only minor injuries were inflicted by the seizure.”)(alteration in original)(quoting Alexis v.
McDonald’s Rests. of Mass., 67 F.3d 341, 352 (1st Cir. 1995)). Whether an injury is “de minimis”
is dependent on the particular facts of the case. Id. at 15 n.7. Thus, whether Baez was actively
resisting is relevant to the level of force used to arrest him.
It is clear from the foregoing that genuine issues of material fact exist in this case, in
particular whether or not Kleczkowski pistol whipped Baez and whether Baez was resisting arrest

3

The Bastien court noted that the Supreme Court had explicitly overruled the “significant injury”
requirement in the Eighth Amendment context. 279 F.3d at 15 n.6 (citing Hudson v. McMillian, 503
U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)).

6

at that time. See Saucier v. Katz, 533 U.S. 194, 216, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)
(Ginsburg, J., concurring)(“Of course, if an excessive force claim turns on which of two conflicting
stories best captures what happened on the street, Graham will not permit summary judgment in
favor of the defendant official.”). As noted above, the Court must view the facts in the light most
favorable to Plaintiff, Bienkowski, 285 F.3d at 140, and does not weigh the credibility of the
testimony, Gonzalez, 304 F.3d at 68, at this juncture. The dispute is genuine because, if believed,
a reasonable jury could return a verdict for Plaintiff. Anderson, 477 U.S. at 248. The facts are
material because they might affect the outcome of Plaintiff’s lawsuit. Id. The Court, therefore,
concludes that Defendant has not met his burden of showing the absence of a genuine issue of
material fact, Celotex Corp., 477 U.S. at 323, and, therefore, has not demonstrated that he is entitled
to summary judgment at this time. Further, because the Court has rejected Defendant’s contention
that Plaintiff’s “de minimis” injury does not support an inference of excessive force, if Plaintiff
proves his allegation that Defendant “pistol whipped” him, he has stated a constitutional violation.
Thus, Defendant is not entitled to summary judgment on this basis. The Court declines to address
Defendant’s qualified immunity argument at this time.
Accordingly, Defendant’s Motion for Summary Judgment is DENIED.
SO ORDERED:

/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
DATE: September 14, 2012

7