Skinner v. Tower et al
Filing
66
OPINION AND ORDER granting 51 Motion for Summary Judgment; granting 52 Motion for Summary Judgment; granting 53 Motion for Summary Judgment; granting 62 Motion for Entry of Judgment under Rule 54(b). Signed by Judge William K. Sessions III on 3/27/2019. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JOSHUA SKINNER,
Plaintiff
v.
ALEXANDER TOWER, et. al,
Defendants.
:
:
:
:
:
:
:
:
:
:
Case No. 2:16-cv-127
OPINION AND ORDER
Plaintiff Joshua Skinner brings an action against multiple
Vermont police officers for excessive force, false arrest,
retaliation for the lawful exercise of First Amendment rights
and various state law claims. Defendants Eric Shepard and
Alexander Tower filed a Joint Motion for Summary Judgment. ECF
53. Defendants Michael DeFiore and Brian Claffy filed separate,
individual motions for summary judgment. ECF 51, 52. DeFiore,
Shepard, and Tower also filed a Motion for Rule 54(b) Entry of
Judgment. ECF 62.
For the reasons set forth below, Defiore’s Motion for
Summary Judgment is granted, Shepard and Tower’s Joint Motion
for Summary Judgment is granted, and Claffy’s Motion for Summary
Judgment is granted. Defendants’ Motion for Rule 54(b) Entry of
Judgment is also granted.
Factual Background
In the evening of May 2013, Plaintiff Joshua Skinner
(“Skinner”) and his friend Christopher Coffen (“Coffen”) came to
Burlington, Vermont for a work project. ECF 51-2 at 2. At the
time, both men were living in Windham, Maine. Id. at 5. While in
Burlington, the two men stayed in Coffen’s car. Id. at 2.
Coffen’s car was an unregistered Cadillac sedan bearing license
plates that belonged to a truck owned by Skinner. Id. at 3.
On May 16, 2013, Skinner and Coffen went to Mike’s Pizza
where they consumed 2 to 3 beers each. Id. at 2. They left
Mike’s Pizza at 10:47 p.m. Id.
Around 1:00 a.m. on May 17, 2013, Officer Alexander Tower
of the Williston, Vermont police department pulled over Coffen
for making a right turn without signaling. ECF
51-2 at 3.
Skinner was still in the car, along with a dog. Id. at 7.
Officer Tower asked Coffen for his license. Id. Coffen did not
have a license at the time and gave Officer Tower a fake name
when asked to identify himself. Id. Tower noted that Coffen was
very tense, had watery and bloodshot eyes, and smelled faintly
of alcohol. Id.
Officer Tower returned to his car and spoke with dispatch
to verify the name Coffen had given him. ECF 51-2 at 4. Officer
2
Eric Shepard overheard Officer Tower’s radio transmission and
drove his police cruiser to the area. Id. Officer Shepard pulled
his car behind Officer Tower’s, checked in with Officer Tower,
and then approached the Cadillac. Id. at 5. Officer Shepard
noted that Coffen’s eyes were bloodshot and watery and that the
car smelled like alcohol. Id. Skinner and Coffen denied that
they had been drinking and told Officer Shepard that they worked
at Vermont Pub and Brewery. ECF 51-2 at 5.
Officer Shepard was concerned that Skinner and Coffen might
initiate a physical confrontation and called Sergeant Brian
Claffy to assist. Id.
Officer Tower approached the Cadillac again and requested
that Coffen step out from the car to perform field sobriety
exercises Id. Coffen became verbally aggressive and refused to
exit the car. Id. Officer Tower asked Coffen to turn off the
motor. Id. Coffen refused and began driving the car away from
the officers. ECF 51-2 at 6.
The officers followed the Cadillac in their vehicles,
chasing the car at approximately 80 miles per hour. Id. Sergeant
Michael DeFiore of the South Burlington Police Department heard
a request for assistance on his radio and headed towards the
scene. Id. at 7.
Eventually, the Cadillac stopped on Route 2A in Williston.
This section of Route 2A is a two-lane road with a small
3
undefined shoulder and no artificial lighting. Id. The nearest
commercial area is miles away. Id.
Once the Cadillac stopped, officers Tower and Shepard got
out of their cars, ordered Coffen to turn off the Cadillac, and
commanded Coffen and Skinner to put their hands in the air. ECF
51-2 at 7. The officers ordered Coffen to open his door multiple
times but Coffen refused. Id.
Sergeant Claffy arrived and instructed Officer Tower to
remove Coffen from the Cadillac. Id. Tower removed Coffen and
handcuffed him. Id.
Sergeant Claffy approached the passenger side of the
Cadillac. Id. Skinner was in the passenger seat and had on his
person an empty gun holster, a knife, and a set of brass
knuckles. Id. A handgun magazine was visible on the floor of the
Cadillac. ECF 51-2 at 9. The dog was still in the car and the
officers inferred that the two men had been living in the
Cadillac. ECF 51-2 at 14.
While Coffen was being handcuffed, Skinner reached out of
the driver-side window with his phone, in an effort to record
the whole incident. ECF 60-1 at 2. At that point, Sergeant
Claffy grabbed his hand and held it until Coffen was completely
secured. ECF 51-2 at 9. Sergeant Claffy asked Skinner if there
was a gun in the car and ordered Skinner to exit the Cadillac.
Id. at 10.
4
After Skinner exited the car, Sergeant Claffy patted him
down and found the brass knuckles and knife. Id. Claffy smelled
alcohol coming off of Skinner. Id. at 11. Sergeant Claffy asked
Skinner again if there was a gun in the car but Skinner refused
to answer. Id.
Claffy told Skinner to put his hands on the trunk of the
Cadillac and took away Skinner’s phone. Id., ECF 60-1 at 3.
Skinner put his hands on the trunk. ECF 51-2 at 11.
At this point, Officer DeFiore arrived on the scene. Id.
Skinner refused to answer the officers’ questions about
where he was going and if he had a valid driver’s license. Id.
at 12. Sergeant Claffy observed that Skinner’s eyes were
bloodshot and told Skinner that he was concerned about letting
Skinner walk away if he was intoxicated. Id. at 11, 12.
Skinner
still did not respond, so Sergeant Claffy went to retrieve an
Alco Sensor breathalyzer. Id. Skinner refused to take the Alco
Sensor test. Id.
Skinner alleges that he was not intoxicated, that he was
not angry or agitated at the officers, and that he was
compliant. ECF 60-1 at 5. Still, Sergeant Claffy made the
decision to take Skinner into protective custody. ECF 51-2 at
14.
Claffy and Shepard approached Skinner to take him into
custody. Id. at 16. Sergeant Claffy attempted to put Skinner’s
5
arms behind his back to restrain him, but Skinner began to
resist and protest. Id. He stiffened his arms and raised his
voice. Id. At this point, Claffy, Shepard, Tower, and another
officer not named in this lawsuit all physically engaged
Skinner, attempting to place him in protective custody. Id. at
17. Skinner continued to resist and impede the officers’
efforts. Id.
One officer warned Skinner that he if did not stop
resisting, he would be tased. ECF 51-2 at 17. Skinner continued
to struggle and said, “Go ahead and fuckin’ tase me.” Id.
DeFiore came over to Skinner to assist the officers in
restraining him. Id. DeFiore again warned Skinner that if he did
not comply with the officers, he would be tased. Id. DeFiore
then applied the taser, in drive-stun mode, to Skinner’s chest.
Id. The taser was activated for four seconds. Id.
Skinner spun around to face Officer DeFiore while the other
officers attempted to hold him. ECF 51-2 at 18. Another officer
deployed his taser in dart mode for five seconds. Id. at 19.
Skinner then collapsed onto the ground and rolled over onto his
stomach. Id.
Once Skinner was on the ground, Claffy, Tower, and Shepard
attempted to secure Skinner’s hands, which were under his body.
Id. The officers told Skinner multiple times to pull his left
hand out from underneath his body, but Skinner refused. Id.
6
Officers held tasers to Skinner, but did not activate them. ECF
51-2 at 20. Officer Tower struck Skinner three or four times in
Skinner’s right thigh. Id. After that, another officer activated
his taser for approximately five seconds. Id. at 21. When
Skinner was still struggling and non-compliant, Officer DeFiore
drew his baton and struck Skinner across his left thigh three
times. Id. at 22. As Skinner continued to resist, DeFiore
inserted his baton into the space between Skinner’s body and his
left arm and used the baton to leverage Skinner’s left arm and
hand out from underneath his body. Id. Tower and Shepard then
handcuffed Skinner. Id.
Approximately 51 seconds had passed from the time that
Skinner had begun resisting to the time that he was handcuffed.
Id.
After Skinner was handcuffed, Officer Shepard transported
him to ACT-1, a treatment center where individuals incapacitated
due to alcohol or other drugs can regain their sobriety. ECF 512 at 23.
ACT-1 refused to admit Skinner after they learned that
Skinner was a passenger in a vehicle that had been in a police
confrontation, that some force had been used on Skinner, and
that Skinner had been tased. Id. Shepard then brought Skinner to
the Chittenden Regional Correctional Facility (“CRCF”). Id. At
CRCF Skinner refused to answer any questions or take a
7
breathalyzer test. Id. Skinner was released around 7:30 a.m.,
after he took a breathalyzer test. Id.
Once released, Skinner walked to the Williston Police
Station and retrieved his belongings. Id. at 24. The police did
not return Skinner’s brass knuckles, and told Skinner that the
brass knuckles he had been carrying were illegal. Id.
Skinner brought this lawsuit against Officer Tower, Officer
Shepard, Officer DeFiore, and Sergeant Claffy for multiple
causes of action. ECF 1. Count I is an excessive force claim
against Defiore. Count II is a false arrest claim against Tower,
Shepard, and Claffy. Count III alleges retaliation for the
lawful exercise of First Amendment rights against Tower,
Shepard, and Claffy. Id. Skinner also brought state law claims
of intentional infliction of emotional distress against DeFiore,
Tower, Shepard, and Claffy; assault and battery against DeFiore,
Tower, Shepard, and Claffy; and false arrest and false
imprisonment against Tower, Shepard, and Claffy.
DeFiore and Claffy filed separate motions for summary
judgment, and Shepard and Tower filed a joint motion for summary
judgment. ECF 51, 52, 53. Skinner did not respond to the summary
judgment motions filed by Defiore, Shepard, and Tower. In
responding to Claffy’s summary judgment motion, Skinner stated
8
that he “chooses to abandon all claims except his unlawful
seizure claim against Defendant Claffy (Count II).” 1 ECF 60 at 1.
Tower, Shepard, and DeFiore also jointly moved for a Rule
54(b) entry of judgment. ECF 62.
Discussion
A court shall grant summary judgment 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). In making a determination on summary judgment, the
court must construe all evidence in the light most favorable to
the nonmoving party, drawing all inferences and resolving all
ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d
732, 740 (2d Cir. 2010). The moving party bears the initial
burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party bears the burden of establishing that
there are no factual issues and that they are entitled to
judgment as a matter of law. Battery Steamship Corporation v.
Refineria Panama S.A., 513 F.2d 735, 738 (2d Cir. 1975).
1
The full sentence reads: “Having engaged in protracted, detailed
discovery, with multiple expert witnesses, and having examined the
likelihood of success on each claim, Defendant chooses to abandon all
claims except his unlawful seizure claim against Defendant Claffy
(Count II).” ECF 60 at 1. Given the context, the Court assumes that
the term “Defendant,” as used in the first instance above, was a typo
and should be read as “Plaintiff.”
9
I. Summary Judgment is Granted on Plaintiff’s Claims Against
Defendants DeFiore, Tower, and Shepard.
Normally, in considering a motion for summary judgment,
courts must “review the motion, even if unopposed, and determine
from what it has before it whether the moving party is entitled
to summary judgment as a matter of law.” Vermont Teddy Bear Co.,
Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2004) (quoting
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir.
1993)).
However, “[f]ederal courts may deem a claim abandoned when
a party opposing summary judgment fails to address the
[movant's] argument in any way. Accordingly, the Court dismisses
these claims as abandoned.” Taylor v. City of New York, 269
F.Supp.2d 68, 75 (E.D.N.Y. 2003). Even “[w]here abandonment by a
counseled party is not explicit,” a court may infer abandonment
“from the papers and circumstances viewed as a whole.” Id. at
196.
Here, Skinner did not respond to DeFiore’s Motion for
Summary Judgment or Shepard and Tower’s Joint Motion for Summary
Judgment. Ordinarily, this Court would still have to analyze the
merits of these motions. But in responding to Claffy’s Motion
for Summary Judgment, Skinner chose “to abandon all claims
except his unlawful seizure claim against Defendant Claffy
(Count II).” ECF 60 at 1. Defendants DeFiore, Tower, and Shepard
10
filed a Response, indicating that they understood the claims
against them to be abandoned. ECF 61. The three defendants also
filed a Motion for Rule 54(b) certification and entry of
judgment. ECF 62. Skinner replied to neither of these papers.
The Court therefore understands that Skinner has abandoned all
claims against Defendants Defiore, Shepard, and Tower. As a
result, summary judgment is granted in favor of DeFiore on Count
I and the state law claims of assault and battery and
intentional infliction of emotional distress. Summary judgment
is also granted in favor defendants Tower and Shepard on Counts
II and III and the pendent state law claims of assault and
battery, intentional infliction of emotional distress, false
arrest, and false imprisonment.
II. Rule 54(b) Certification is Granted on Plaintiff’s Claims
Against Defendants DeFiore, Tower, and Shepard.
Generally, any order “that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties” is not final. Fed. R. Civ. P. 54(b). Finality is
achieved only if the court “expressly determines that there is
no just reason for delay” and “direct[s] entry of a final
judgment” under Rule 54(b). Id. “[C]ertification under Rule
54(b) should be granted only where there are interests of sound
judicial administration and efficiency to be served or, in the
infrequent harsh case, where there exists some danger of
11
hardship or injustice through delay which would be alleviated by
immediate appeal.” Hogan v. Consol. Rail Corp., 961 F.2d 1021,
1025 (2d Cir. 1992) (citations, alterations, and internal
quotation marks omitted).
“[T]he Second Circuit has counseled that the historic
policy against piecemeal appeals requires that the court's power
to enter such a final judgment before the entire case is
concluded . . . be exercised sparingly.” In re Gentiva Sec.
Litig., 2 F.Supp.3d 384, 387 (E.D.N.Y. 2014) (internal
quotations omitted). “The interrelationship of the dismissed and
surviving claims is generally a reason for not granting a Rule
54(b) certification.” Hogan, 961 F.2d at 1026.
DeFiore, Shepard, and Tower request Rule 54(b)
certification and entry of judgment as to all the claims
originally brought against them.
This is an exceptional case warranting Rule 54(b)
certification. First, Plaintiff has abandoned his claims against
DeFiore, Shepard, and Tower and has not opposed their motion for
Rule 54(b) certification. Presumably, DeFiore, Shepard, and
Tower are seeking entry of judgment in order to have this case
fully behind them, not for appeal purposes. Since Plaintiff has
abandoned his claims against them, there will likely be no
appeal. Thus, the “policy against piecemeal appeals” which
cautions against frequent granting of Rule 54(b) certification
12
does not quite apply here. In re Gentiva Sec. Litig., 2
F.Supp.3d at 387.
Plaintiff’s claim against Claffy and the abandoned claims
against the three other defendants all arise from the same
incident. Normally, this interrelationship of claims is a factor
weighing against Rule 54(b) certification. But, as mentioned
above, in this instance Plaintiff has abandoned those claims and
the Court has granted summary judgment in defendants’ favor. It
is in the interests of judicial efficiency and administration to
end the involvement of DeFiore, Tower, and Shepard in this
lawsuit, and narrow down the focus of this litigation to the one
remaining claim. Thus, there is no just reason for delay.
The Court hereby certifies that the judgment as to the
claims against Tower, DeFiore, and Shepard is a final judgment
pursuant to Rule 54(b). The Clerk is directed to enter a
separate Rule 54(b) judgment of the Court.
II. Claims Against Defendant Claffy.
A. Summary Judgment is Granted on Count III and Plaintiff’s
State Law Claims Against Claffy.
As discussed above, Skinner has abandoned all claims except
Count II, the unlawful arrest claim, against Claffy. Summary
judgment is therefore granted to Claffy on Count III and the
state law claims of assault and battery, intentional infliction
of emotional distress, and false arrest and false imprisonment.
13
B. Summary Judgment is Granted on Plaintiff’s Unlawful
Arrest Claim Against Defendant Claffy.
The sole remaining claim in this lawsuit is the false
arrest claim against Sergeant Claffy. Claffy argues that he is
entitled to qualified immunity from Skinner’s lawsuit because he
did not violate Skinner’s clearly established rights. He
contends that taking Skinner into protective custody was lawful
because (1) there was probable cause to arrest Skinner and (2) he
was acting pursuant to the community caretaking doctrine.
In deciding questions of qualified immunity at summary
judgment, courts engage in a two-pronged inquiry: “The first
prong asks whether the facts taken in the light most favorable
to the party asserting the injury show the officer's conduct
violated a federal right, and the second prong . . . asks
whether the right in question was clearly established at the
time of the violation.” Raspardo v. Carlone, 770 F.3d 97, 113
(2d Cir. 2014) (internal citations and quotations omitted).
Courts may address either prong first. Pearson v. Callahan, 555
U.S. 223, 236 (2009). Regarding the second prong, the Supreme
Court has explained that “a defendant cannot be said to have
violated a clearly established right unless the right's contours
were sufficiently definite that any reasonable official in the
defendant's shoes would have understood that he was violating
it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014).
14
The existence of probable cause to arrest will defeat a
claim for unlawful arrest. Jenkins v. City of New York, 478 F.3d
76, 84 (2d Cir. 2007). An officer need only have probable cause
for one offense to arrest an individual regardless of what that
person is ultimately charged with. Marcavage v. City of New
York, 689 F.3d 98, 109 (“A Fourth Amendment claim turns on
whether probable cause existed to arrest for any crime, not
whether probable cause existed with respect to each individual
charge.”). “Even if probable cause to arrest is ultimately found
not to have existed, an arresting officer will still be entitled
to qualified immunity . . . if he can establish that there was
‘arguable probable cause’ to arrest.” Escalera v. Lunn, 361 F.3d
737, 743 (2d Cir. 2004). “Arguable probable cause” exists “if
either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable
cause test was met.” Id. (quoting Golino v. City of New Haven,
950 F.2d 864, 870 (2d Cir. 1991)).
Under Vermont law, it is illegal to possess brass knuckles
with the intent to use them. 13 V.S.A. § 4001. Skinner
acknowledges that he was carrying brass knuckles when Claffy
made the decision to take him into custody, but argues that
there is no evidence that he intended to use them.
15
There is no Vermont caselaw addressing what evidence is
necessary to establish probable cause of intent to use. When the
officers patted down Skinner, they also found a knife on his
person and evidence of guns in the car. The brass knuckles were
not in any type of carrying or display case, but were readily
accessible in his right front pocket. Skinner was refusing to
answer the officers’ questions and did not give them any
information about the brass knuckles or why he was carrying
them. The defendants’ expert John J. Ryan testified that the
manner in which Skinner was carrying the brass knuckles
established intent to use. ECF 51-19 at 3-4.
Given this situation, there was arguable probable cause for
Claffy to arrest Skinner for possessing brass knuckles with
intent to use them. This Court is not deciding what constitutes
probable cause under Vermont law for the intent to use brass
knuckles. This Court is simply finding that given the
circumstances in which the officers found the brass knuckles,
and the lack of clarity in Vermont law on this subject, officers
of reasonable competence could disagree on whether the probable
cause test was met.
Skinner was not charged for this offense, but he was
brought into protective custody at CRCF and released a few hours
later. Given that there was arguable probable cause for Claffy
to arrest and charge Skinner, taking him into custody did not
16
violate a clearly established right. Sergeant Claffy is entitled
to qualified immunity.
Claffy also argues that taking Skinner into custody was
lawful under the community caretaking doctrine. Since the Court
has found that Claffy is already entitled to qualified immunity,
it need not reach the question of community caretaking.
Defendant Claffy’s motion for summary judgment is granted.
Conclusion
For the reasons set forth above, defendant Defiore’s motion
for summary judgment is granted, defendants Shepard and Tower’s
joint motion for summary judgment is granted, and defendant
Claffy’s motion for summary judgment is granted. Defendants
motion for Rule 54(b) entry of judgment is also granted.
DATED at Burlington, in the District of Vermont, this 27th
day of March, 2019.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
17
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?