Orkins v. Dumas et al

Filing 74

ORDER granting 63 Motion for Summary Judgment and this case is DISMISSED. Signed by District Judge J. Garvan Murtha on 03/09/2012. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Christopher L. Orkins,
Plaintiff,
v.
Edward Dumas, Jason
Johnson, Officer Post,
Officer Tarbell, Officer
Prouty, Officer Gorruso,
City of Rutland,
Defendants.

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File No. 1:09-cv-237-jgm

OPINION AND ORDER
(Doc. 63)
Plaintiff Christopher Orkins, proceeding pro se, brings this
action claiming he was beaten by members of the Rutland Police
Department.

He alleges this conduct constituted excessive force

in violation of the Fourth Amendment, and battery under state
law.

Defendants have moved for summary judgment on all claims.

For the reasons set forth below, Defendants’ motion (Doc. 63) is
GRANTED and this case is DISMISSED.
Factual Background
The following facts are undisputed unless otherwise
indicated.

On the night of October 20, 2006, there was a social

gathering at Orkins’ apartment in Rutland, Vermont.

At

approximately 1:00 a.m., Orkins and his friend, David Blanchard,
left the gathering and went to a nearby bar.

According to

Orkins’ deposition testimony, he had two beers while at the bar.

(Doc. 63-3 at 19.)

He may also have used marijuana that night.

Id. at 56.
Orkins and Blanchard subsequently left the bar and returned
to Orkins’ home.

Orkins went into his bedroom, and was later

told that Blanchard had punched a woman named Megan Muir.
contends that Muir was his girlfriend at the time.

Orkins

Orkins exited

the bedroom, saw Blanchard leaving the party, and ran after him.
Orkins caught up with Blanchard at a Jiffy Mart
approximately 100 feet from his apartment.

He grabbed

Blanchard’s coat, but Blanchard slipped out of the coat and ran
down the street.

Blanchard then called 9-1-1 and reported that

he was being assaulted.

While Blanchard was calling for help,

Orkins walked to a laundromat parking lot across the street from
the Jiffy Mart and left Blanchard’s coat there so that it could
be retrieved.
Rutland Police Officers Matthew Prouty and Robert Gorruso
responded to the 9-1-1 call.

While Officer Prouty attests in an

affidavit that he spoke with Orkins, (Doc. 63-6 at 1), Orkins
denies having spoken to a police officer.

(Doc. 63-2 at 4.)

Both officers attest that because they believed the incident had
concluded, they allowed the two men to leave the area rather than
be placed under arrest.

(Doc. 63-6 at 2); (Doc. 63-7 at 2.)

Orkins alleges that after leaving Blanchard’s jacket in the
parking lot, he walked back to his apartment.

2

When he arrived at

the apartment, a police officer was standing in the front
walkway.

(Doc. 63-3 at 30-32.) As Orkins testified in his

deposition:
When I got past the streetlight I looked up, um, he
didn’t say nothing to me. And then I got tapped or
clobbered on my head and fell to the ground. And then
I looked back and I saw [Rutland Police Officer Edward]
Dumas, and then, um, then I saw nothing but feet and
hands from all directions. And then I fell to the
ground again and, ah, was knocked unconscious. And
then I picked my face up off, off the ground like this
(indicating), and I looked back and I could see all the
officers walking back to their cars or walking down
Pine Street towards [the] Jiffy Mart area.
Id. at 32.
Orkins now claims that several police officers were involved
in the alleged assault.

He believes they were police officers

because the person standing in the walkway was uniformed, and
because the men walking away wore black clothing and boots.
at 50-51.

Id.

Aside from the officer in the walkway and Officer

Dumas, Orkins did not see the faces of his assailants.

Id. at

41-42.
Although his deposition testimony referred to police
“walking back to their cars,” Orkins did not actually see marked
police cars in the area.

Id. at 32, 44.

Nor did he see other

signs – such as police badges, patches, radios or firearms – to
indicate his attackers were police.

Id. at 51, 57.

Orkins does

contend, based on his injury, that the initial blow was inflicted
by a Mag-Lite flashlight.

Id. at 36, 37.

3

With respect to the specific officers allegedly involved,
Orkins believes the officer in the walkway was Officer Gorruso.
He did not know who Officer Gorruso was at the time.

Id. at 33.

He later obtained a description of Officer Gorruso, and was
informed that Gorruso drives a black truck.

Orkins alleges that

he saw an unmarked black truck at the scene, and has identified
Officer Gorruso on this basis.
Q:

So you identified Officer Garusso [sic] based upon --

A:

From a description.

Q:

-- a description that was provided to you?

A:

In that he was the one that drives the black, um,
truck. But before that I did not know who he was.

Id. at 34.
Officer Gorruso has submitted an affidavit stating that he
does not believe he “ever stood in the walkway of what has been
described as the Plaintiff’s apartment,” and that he did not
“kick, punch, or otherwise assault . . . [or] observe anyone else
kicking, punching or otherwise assaulting the Plaintiff.”
63-7 at 2.)

(Doc.

Defendants have also submitted an affidavit stating

that the Rutland Police Department had only one vehicle in
October 2006 that meets the description of the truck Orkins
allegedly saw that night.

(Doc. 63-12 at 2.)

The vehicle was a

Chevy Tahoe and was used strictly for commercial vehicle
enforcement.

Id.

According to the affidavit of Rutland Police

Lieutenant Kevin Geno, “Officer Gorruso would not have been
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operating the Tahoe at the time of the events that are described
by the Plaintiff.”

Id.

Orkins further claims Officer Dumas is the person who struck
him initially.

Id. at 35, 41-42.

Officer Dumas has submitted an

affidavit stating he was off-duty, was at home asleep at the
time, and did not “witness any of the alleged events described by
Plaintiff.”

(Doc. 63-8 at 1-2.)

Lieutenant Geno’s affidavit

confirms Officer Dumas was not on duty that night.

(Doc. 63-12

at 1.)
Orkins conceded in his deposition he cannot confirm the
involvement of Officers Johnson, Post, Tarbell or Prouty, all of
whom have been named as Defendants.

(Doc. 63-3 at 54-55.)

Orkins explains he named Officer Johnson as a Defendant because
he has seen Johnson wearing gloves, and he believes one of the
people involved in the assault hit him with “sand gloves.”
63-3 at 43, 54.)

(Doc.

Orkins also describes Johnson as “very

heavyset,” weighing “270 maybe.”

Id. at 53.

Officer Johnson’s

affidavit states that he weighed 175 pounds in October 2006, and
that he does not wear “black riot/sand gloves or gloves with a
rough texture.”

(Doc. 63-9 at 1.)

Officer Johnson further

swears that, although he was working that night, he did not have
any contact with Orkins.

Id. at 2.

Officer Post was also working that night, but he too has
submitted an affidavit stating that he did not have any contact

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with Orkins.

(Doc. 63-10 at 1.)

Officer Post further attests

that he did not observe Officer Dumas or Sergeant Tarbell, “as
they were not assigned to work that day.”

Id.

Sergeant Tarbell

has submitted his own affidavit testifying to his schedule, and
the fact that he was not on duty during the period of time in
question.

(Doc. 63-11.)

The two police officers who responded to Blanchard’s 9-1-1
call, Officers Gorruso and Prouty, dispute Orkins’ account of
that evening’s events.

As noted above, Officer Gorruso states he

did not stand in the walkway of Orkins’ apartment, did not
assault Orkins, and did not witness an assault.
2.)

(Doc. 63-7 at

Officer Prouty states he spoke with Orkins briefly, but did

not observe or take part in an assault.

(Doc. 63-6 at 1-2.)

Mr.

Blanchard also testified in a deposition that he did not see any
sort of altercation.

(Doc. 63-4 at 10.)

The officers attest

they spent less than ten minutes responding to the 9-1-1 call
before going back on patrol.

(Doc. 63-6 at 2.); (Doc. 63-7 at

2.)
Orkins claims that within an hour of being assaulted, he
went to the emergency room at Rutland Regional Medical Center,
arriving at approximately 4:30 a.m.

(Doc. 63-3 at 15.)

He

reports that on the way to the hospital, he held a washcloth to
his head wound, and that the cloth was filled with blood when he
arrived.

Id. at 4-6.

The wound continued to bleed thereafter,

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“[b]ut not as profusely.”

Id. at 6.

Orkins also claims to have

suffered multiple head contusions, a swollen right hand, facial
abrasions, vision problems in both eyes, and a lump in the area
of one temple.

Id. at 3-4, 7-9, 11.

He testified in his

deposition that he was provided intravenous pain medication as
part of his treatment.

Id. at 9.

Hospital records indicate Orkins did not arrive at the
hospital until 1:40 p.m. in the afternoon following the alleged
assault.

(Doc. 63-13 at 12-13.)

In his discussions with the

triage nurse, he reportedly complained of lumps on his head,
swollen hands and skinned knees.

He claimed he had been hit from

behind at approximately 3:30 a.m., and requested a “note for
work.”

Id. at 5-6.

There is no indication in the medical

records of a laceration on the top of his head, or of any
intravenous medication.

(Doc. 63-14 at 8.)

Although not supported by the hospital records, Orkins’
claim of head wound finds limited support in the deposition
testimony of Megan Muir.

Muir testified that she attended the

gathering at Orkins’ apartment on the evening in question, and
was aware of an altercation between Orkins and Blanchard.
63-15 at 8.)

(Doc.

She also testified she saw Orkins standing with

police officers, after which Orkins returned to “the apartment
bawling, saying the police beat him up.
his head, a gash . . . .

I mean he had a cut on

It was bleeding a little bit when he

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came up, but I don’t think it bled that long.”
16.

Id. at 12, 14,

Muir further testified she took Orkins to the hospital the

following afternoon.

Id. at 17.

When asked at her deposition whether she had seen police
officers immediately in front of Orkins’ apartment, Muir stated
she had not.

Id. at 14.

She also reported that in a subsequent

conversation with Mr. Blanchard, Blanchard claimed it was he, and
not the police, who had beaten Orkins that night.

Id. at 22.1

Discussion
Summary judgment is appropriate when, construing the
evidence in the light most favorable to the non-moving party,
“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 fact is “material” for these purposes when it “might

affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

An

issue is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Id.

It is well established that “[a] party may not rely on mere
speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment,” as “[m]ere conclusory
allegations or denials cannot by themselves create a genuine

1

The Court finds that Blanchard’s statement to Muir would
be admissible under Fed. R. Evid. 804(b)(3).
8

issue of material fact where none would otherwise exist.”

Hicks

v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts — “facts that might affect the
outcome of the suit under the governing law” — will properly
preclude the entry of summary judgment.

Anderson, 477 U.S. at

248; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (stating that the nonmoving party
“must do more than simply show that there is some metaphysical
doubt as to the material facts”).
In this case, Defendants acknowledge there are disputes of
material fact, particularly with respect to the identities of the
individuals involved in Orkins’ alleged assault.

They contend,

however, that “the Plaintiff’s version of [the] facts is so
fanciful, given the known record, that no reasonable jury could
believe the Plaintiff’s version of events.”

(Doc. 63-1 at 7.)

In Anderson, the Supreme Court held that “[t]he mere
existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.”
U.S. at 252.

477

In other words, “the judge must ask . . . not

whether the evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.”

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Id.

Although a district court generally “should not weigh
evidence or assess the credibility of witnesses,” Hayes v. N.Y.
City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996), the Second
Circuit has held that
in the rare circumstance where the plaintiff relies
almost exclusively on his own testimony, much of which
is contradictory and incomplete, it will be impossible
for a district court to determine whether ‘the jury
could reasonably find for the plaintiff,’ . . . and
thus whether there are any ‘genuine’ issues of material
fact, without making some assessment of the plaintiff’s
account.
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)
(quoting Anderson, 477 U.S. at 252).

More recently, in Rojas v.

Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011),
the Second Circuit explained:
we do not suggest that district courts should routinely
engage in searching, skeptical analyses of parties’
testimony in opposition to summary judgment. . . .
However, in certain extraordinary cases, where “the
facts alleged are so contradictory that doubt is cast
upon their plausibility, the court may pierce the veil
of the complaint’s factual allegations and dismiss the
claim.” [Jeffreys, 426 F.3d] at 555 (internal quotation
marks and alteration omitted). To hold otherwise, and
require district courts to allow parties to defeat
summary judgment simply by testifying to the
allegations in their pleadings (or, as here, to facts
not alleged in their pleadings), would “license the
mendacious to seek windfalls in the litigation
lottery.” Arrington v. United States, 473 F.3d 329,
344 (D.C. Cir. 2006) (Brown, J., concurring in part and
dissenting in part).
Rojas, 660 F.3d at 106.

Similarly, the U.S. Supreme Court has

opined that “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no
10

reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.”

Scott v. Harris, 550 U.S. 372, 380 (2007).

In this case, viewing the facts in a light most favorable to
Orkins, the Court concludes that while there are disputed facts,
the disputes are not genuine.
Officer Dumas.

The Court begins its analysis with

Orkins claims that while returning home from a

bar, he saw a police officer in front of his home and was then
immediately hit over the head with a heavy object.

He fell to

the ground, “was knocked unconscious for a split second,” and was
able to briefly identify Officer Dumas as the person who had
inflicted the blow.

(Doc. 63-3 at 35, 37-38, 41).

Officer Dumas attests in his affidavit that he was at home
in bed at the time of the alleged attack.

Specifically, he

states that he ended his shift at 10:40 p.m. on the night of
October 20, 2006.

After arriving home, he spoke with his wife,

watched television, and went to bed.

He reportedly remained in

bed until he awoke at 7:00 a.m. the next morning.

(Doc. 63-8 at

1-2.)
Orkins’ response to the summary judgment motion (Doc. 73)
does not refute Officer Dumas’s affidavit testimony.
the response does not mention Officer Dumas at all.

In fact,
In contrast,

the officers who were present that night have sworn that they did
not see Officer Dumas, and the Rutland Police Department, through

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Lieutenant Geno’s affidavit, has confirmed that Officer Dumas
ended his shift several hours before the alleged attack.
Like the allegations levied by the plaintiff in Jeffreys,
Orkins’ claim against Officer Dumas is “largely unsubstantiated
by any other direct evidence.”

426 F.3d at 555.

Moreover, it is

countered by the detailed affidavits of several other
individuals.

As discussed above, the Court is aware of its

obligation to avoid credibility determinations.

However, the

Court also finds that Orkins’ claims are extraordinarily
unsupported.

Indeed, given the overwhelming evidence running

counter to Orkins’ account, the Court finds that it must “pierce
the veil of the complaint’s factual allegations,” and in doing
so, concludes that no reasonable juror could find in Orkins’
favor on his allegation that he was attacked by Officer Dumas.
Jeffreys, 426 F.3d at 555.

Officer Dumas is therefore entitled

to summary judgment.
The allegations against the remaining officers are similarly
unsupported.

Orkins concedes that, with the exceptions of

Officers Dumas and Gorruso, he only saw his alleged assailants
from the back.

He also admits that he did not witness them

wearing guns, radios, or other indicia of law enforcement.

His

sole bases for naming these officers as his attackers are (1)
Officer Gorruso was allegedly standing in the apartment walkway

12

immediately prior to the attack, and (2) his attackers wore black
clothing and boots.

(Doc. 63-3 at 50-51.)

Orkins claims Officer Johnson was present because one of the
attackers allegedly wore “sand gloves.”

He believes that, on

more than one occasion, he has seen Officer Johnson wearing
gloves.

Id. at 52.

weighing 270 pounds.

He also describes Officer Johnson as
Officer Johnson states in his affidavit

that he weighed 175 pounds on the night in question, that he
continues to weigh significantly less than 270 pounds, and that
he does not wear sand gloves.

(Doc. 63-9 at 1.)

Officer Prouty responded to the 9-1-1 call, and recalls
speaking with Orkins.
officer.

Orkins denies having spoken to a police

This dispute is immaterial, as it does not alter the

fact that Orkins cannot identify Prouty as one of his attackers.
Nor can he testify that Officer Post, who was on duty with
Officer Johnson at the time, participated in the alleged assault.
Both Prouty and Post have submitted affidavits denying any
involvement.

(Docs. 63-6, 63-10.)

Sergeant Tarbell is also named as an attacker, although,
like Officer Dumas, his affidavit states he was not on duty at
the time.

He also swears he was not involved in any alleged

attack upon Orkins.

(Doc. 63-11.)

Consequently, aside from

Orkins’ claims that he saw Officers Dumas and Gorruso, he offers

13

little beyond guesswork to place the Defendants at the scene, and
his conjecture is countered by specific affidavits and denials.
As to Officer Gorruso, Orkins did not know Gorruso
previously, but was later provided a description and told that
Gorruso drives a black police truck.

Lieutenant Geno reports

Officer Gorruso would not have been operating the Rutland Police
Department’s truck during the time in question.
2.)

(Doc. 63-12 at

And as with the other officers, Officer Gorruso has

submitted an affidavit denying that he either participated in, or
witnessed, an attack.

(Doc. 63-7 at 2.)

Finally, the medical evidence does not support Orkins’
claims that he suffered a serious blow from a large object.
Indeed, there is no documentation of the sort of wound Orkins
claims to have suffered on the top of his head.

Nor is there

evidence to support his claim that he required immediate medical
attention, arriving at the hospital with a washcloth covered in
blood and in such discomfort that he required intravenous pain
medication.

Instead, the medical records indicate Orkins

reported to the hospital the following afternoon complaining of
bumps and abrasions, and asking for a note for his employer.
Megan Muir’s deposition corroborates these records, both with
respect to the timing of Orkins’ hospital visit and the extent of
his injuries.

14

In his response to the summary judgment motion, Orkins
posits that there is a seven-minute gap between the arrival of
police at the scene, and their eventual conversation with Mr.
Blanchard.

He alleges this period of time “gives the officers

plenty of time (7 mins) to attack me and leave.”

(Doc. 73 at 4.)

Orkins also notes Blanchard would not have seen the attack, as he
had walked out of sight of Orkins’ apartment.

Id. at 6.

Orkins further claims there is a factual dispute about
whether he and Blanchard were together when the police arrived.
Even assuming such a dispute, the issue is immaterial.

Whether

the men were together or apart while police were present, the
fundamental question is whether a group of police officers, some
of whom were off duty, attacked Orkins in front of his home.

The

record in this case simply does not provide enough evidence for a
reasonable juror to find in Orkins’ favor on this question.
Indeed, Orkins relies upon little more than speculation and
conjecture to support his claims.

Most significantly, his

identification testimony is incomplete.
assailants from behind.

He saw most of his

With respect to his two affirmative

identifications, he has identified Officer Gorruso based upon the
presence of a truck, and Officer Dumas on a split-second
sighting.

To the extent there is any additional evidence, such

as the testimony of other officers, witnesses, and hospital

15

medical records, that evidence reinforces the Defendants’
accounts.
In Jeffreys, the plaintiff alleged a group of police
officers beat him and threw him out of a third-floor window.
F.3d at 551.

426

His allegations were not only inconsistent with

statements he had made previously, but were also countered by
police testimony.

Id. at 551-52.

Moreover, and as in this case,

the medical evidence did not support plaintiff’s claim that he
had been struck in the head by a police officer wielding a
flashlight.

Confronted with such a record, the Jeffreys court

concluded it would require a “suspension of disbelief” for a jury
to credit the plaintiff’s allegations.

426 F.3d at 555.

In this case, the notion is that Orkins was beaten by police
officers outside of his house in the middle of the night while
others were present inside the home.

The non-police officer

eyewitnesses, Megan Muir and David Blanchard, each testified they
did not see any police officers in front of the house.

Muir also

testified that, according to Blanchard, it was he and not the
police who had caused Orkins’ injuries.
In sum, Orkins offers barely a “scintilla of evidence” to
support his claim that the six officers named in the Complaint
beat him up outside of his home on the night in question.
Anderson, 477 U.S. at 252.

Accordingly, the Court finds this is

an extraordinary case in which disputes of fact exist and yet,

16

given the record, Defendants are entitled to judgment in their
favor as a matter of law.

See, e.g., McMahon v. Fura, 2011 WL

6739517, at *10 (N.D.N.Y. Dec. 23, 2011) (granting summary
judgment to defendants where plaintiff claimed he “must have”
been tased by “an officer,” and claim was countered by testimony
of only officer present with a taser); Torres v. Caron, 2009 WL
5216956, at *8 (N.D.N.Y. Dec. 30, 2009) (noting that Jeffreys
exception is most applicable where plaintiff’s version of events
is contradicted by defense testimony).

Their motion for summary

judgment is therefore GRANTED.
Conclusion
For the reasons set forth above, Defendants’ motion for
summary judgment (Doc. 63) is GRANTED, and this case is
DISMISSED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 9th
day of March, 2012.

/s/ J. Garvan Murtha
J. Garvan Murtha
United States District Judge

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