Odom v. MatteoOdom v. Matteo
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MEMORANDUM OF DECISION DENYING DEFENDANT GILBERT MAFFEO’S MOTION FOR SUMMARY JUDGMENT [Doc. #57] AND GRANTING IN PART AND DENYING IN PART DEFENDANTS MURRAY PENDLETON AND TOWN OF WATERFORD’S MOTION FOR SUMMARY JUDGMENT [Doc. # 58]
VANESSA L. BRYANT, District Judge.
The plaintiff, Debra Odom (hereinafter “Plaintiff’ or “Odom”), filed this action for damages against the defendants, Officer Gilbert Maffeo (hereinafter “Maffeo”),
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Waterford Chief of Police Murray Pendleton (hereinafter “Pendleton”), and the Town of Waterford
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(hereinafter collectively “Defendants”). This case arises out of Officer Maffeo’s use of a Taser on the Plaintiff, who allegedly suffers from a brain injury, during a traffic stop. Her Amended Complaint asserts a total of sixteen counts against the Defendants. The Plaintiff brings claims against Officer Maffeo for negligence (First Count), assault and battery (Third Count), willful/wanton assault and battery (Fifth Count), violation of
Presently pending before the Court are motions for summary judgment filed by Maffeo [Doc. # 57], and by Pendleton and Waterford [Doc. # 58]. The Defendants seek summary judgment as to all surviving claims asserted in the Amended Complaint. For the reasons stated below, Maffeo’s motion for summary judgment is DENIED, and Pendleton and Waterford’s motion for summary judgment is GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts relevant to the Defendants’ motions for summary judgment are undisputed unless otherwise noted. On September 22, 2006, at approximately 10:30 p.m., Odom was pulled over by Officer Maffeo while operating her motor vehicle on Route 32 in Waterford, Connecticut. Def. Maffeo’s 56(a)(1) Statement ¶ 1. Maffeo was on duty as a Town of Waterford Police Officer at that time and place, and was operating a police cruiser with yellow
Maffeo claims that he identified himself to Odom as a police officer upon approaching her vehicle. Id. ¶7. Odom disputes this claim, contending that she did not know that she was being followed by a police car, could not see who was approaching her car, and that Maffeo did not initially identify himself as a police officer. PI. 56(a)(2) Statement ¶ 7. Odom asserts that she did not know whether Maffeo’s vehicle was a police vehicle because it had yellow or white and orange flashing lights rather than red or blue lights and had been driving erratically. Odom Aff. ¶ 7. She further claims that her ability to see Maffeo was hindered because he shined a bright flashlight in her mirrors when he left his car and moved his light directly into her eyes when he approached her vehicle. Id. ¶ 10. According to Maffeo, when he approached Odom’s vehicle she immediately told him that he had to turn off his spotlight because it was blinding her. Maffeo Aff. ¶ 10. Odom further indicated that she had a brain injury and that the light could cause her to have a seizure. Maffeo Aff. ¶ 11. Maffeo responded that he would turn off the spotlight once he had her license, registration, and insurance card, and deemed it to be safe to do so. Id.
Odom did not comply with Maffeo’s initial investigative request for her driver’s license, registration, and insurance card. Def. Maffeo’s 56(a)(1) Statement ¶ 9. Maffeo requested the same information a second time, and again Odom failed to comply.
Id.
¶ 10. Maffeo then requested the information a third time, at which point Odom provided only her driver’s license.
Id.
¶ 11. Odom indicates that she intended to fully comply with Maffeo’s request after he identified himself as a police officer and after she provided him with important information about her brain injury. PI. 56(a)(2) Statement ¶¶ 9-11. Odom suffers from a brain injury which she claims makes it difficult for her to understand ■and respond to instructions, makes her appear agitated or uncooperative, and makes her dizzy and photosensitive. Odom Aff. ¶ 4. She contends that she handed her “brain injury survivor card” to Maffeo when she gave him her driver’s license and asked him to read it because she suffers from a brain injury.
Id.
¶ 19. However, Maffeo refused to read the information on the card and threw it back at her.
Id.
¶ 20. She attempted to hand it to him again, but he again threw it back at her without reading it.
Id.
¶¶ 21-22. Maffeo denies this, claiming that he read the card and handed it back to Odom, after which she continued to refuse to provide him with the information he had requested. Maffeo Aff. ¶¶ 12-13. The card, which was provided to Odom by a support group sponsored by the Brain Injury Association of Connecticut, identifies Odom as a brain injury survivor, lists her mother as an emergency contact, and describes medication, foods, and substances that she is allergic to. Def. Maffeo Exh. C. In addition, the back of the card outlines some of the potential symptoms of brain injury, which may include impairment of vision,
Odom claims that after she gave Maffeo her license and while she was searching for her registration and insurance card, her cell phone rang. She answered the phone because she knew from the ring tone that it was her mother calling, and she hoped that her mother could inform Maffeo of the limitations she experienced as a result of her brain injury. Odom Aff. ¶ 22. Odom states that after she answered the phone, Maffeo identified himself as a police officer for the first time, but refused, to give his name or badge number or identify the municipality he served. Id. ¶ 23. She then gave her phone to Maffeo and asked him to speak with her mother. Id. ¶ 24.
At the time of the traffic stop, Odom had pepper spray, a wooden “tire knocker” club, and a box cutter in her vehicle. Id. ¶ 13. Odom admits that these items were in her vehicle, but asserts that none of the items were in her reach during the stop and that she made no efforts to reach any of the items. PI. 56(a)(2) Statement ¶ 13. Maffeo claims that, after Odom handed him her cell phone, she returned it and opened her car door, at which time he saw the “tire knocker” club next to her seat. Def. Maffeo’s 56(a)(1) Statement ¶ 14. At this point, he became concerned for his safety because of the presence of the club, the secluded area, and Odom’s agitated and odd behavior. Maffeo Aff. ¶ 18. He then ordered her to exit the vehicle, but she refused. Id. ¶ 19. Odom contends, however, that Maffeo did not return the cell phone to her, but instead hung up the phone, turned the power off, and threw it on the dashboard. Odom Aff. ¶ 25. Odom further contends that Maffeo started yelling at her, at which point she feared for her safety and tried to turn on her phone to call 911. Id. ¶¶ 26-27. Maffeo purportedly prevented her from doing so by opening her car door from the inside, “leaping” into the car, grabbing the phone, and smashing it against the road. Id. ¶ 28. Odom claims that, during the altercation, Maffeo struck his head against hers, and his glasses or badge cut her shoulder. Id.
Maffeo then told Odom that she was under arrest and ordered her to get out of the car. Maffeo Aff. ¶ 20. According to Odom, she informed Maffeo that she would gladly exit the vehicle at the request of another police officer because she feared for her safety. PI. 56(a)(2) Statement ¶ 15. Odom explains that she did not believe that Maffeo was a real police officer because of the way he was acting and because he did not identify himself. Odom Aff. ¶ 29. When Odom refused to exit the vehicle, Maffeo grasped her with his hands and attempted to forcibly remove her. Def. Maffeo’s 56(a)(1) Statement ¶ 16. Maffeo contends that he grabbed Odom by the left arm and tried to remove her from the vehicle. Maffeo Aff. ¶ 20. Odom claims, however, that Maffeo “dove” into her car, grabbed her by the crotch and neck, and tried to pull her out. Odom Aff. ¶ 30. She resisted by grasping the steering wheel and a strap attached to the door frame, and pinning her legs in the driver’s compartment. Def. Maffeo’s 56(a)(1) Statement ¶ 16. Maffeo claims that he then contacted dispatch and asked for an additional unit to assist him. Maffeo Aff. ¶ 22. After Maffeo grasped Odom, she began screaming that he was trying to beat and rape her. PI. 56(a)(2) Statement ¶ 21. Maffeo released her when a nearby neighbor came to his balcony. Odom Aff. ¶ 33. According to Maffeo, Odom then tried to put her car in drive, at which point he reached into Odom’s vehicle and re
Maffeo next warned Odom that if she did not exit the vehicle, he would spray her with mace. Def. Maffeo’s 56(a)(1) Statement ¶ 17. Odom informed Maffeo that she had asthma, and that if he maced her, she “would die.” Maffeo re-holstered his spray without deploying it. Id. ¶ 18. Maffeo contends that he then warned Odom that if she did not exit the vehicle, he would tase her. Id. ¶ 19. After Odom continued to refuse to exit her vehicle, Maffeo fired his Taser, striking her in the thigh area. Id. ¶ 20. He was then able to remove her from the vehicle. Maffeo Aff. ¶ 29. Odom claims, however, that Maffeo did not warn her that she would be tasered, and that she was tasered without warning. PI. 56(a)(2) Statement ¶ 19. Odom further claims that, after she was tasered the first time, Maffeo ordered her out of the car, but she told him that she could not exit the car because her muscles had contracted as a result of the Taser and she could not move. Odom Aff. ¶ 39. Maffeo then recharged his Taser and shot her two more times without warning. Id. ¶¶ 39-40.
After Maffeo removed Odom from her vehicle, he brought her down to the ground on her knees and ordered her to lie on her stomach. Maffeo Aff. ¶ 30. Odom did not comply, so Maffeo pulled her arms behind her back and placed handcuffs on her. Id. ¶ 31. As Maffeo waited for additional units to arrive, Odom threatened that she was going to have him arrested and sue him. Id. ¶ 32. She also stated that she had refused to listen to him because she had heard of men pretending to be police officers and was afraid, and she simply wanted a female officer present. Id. ¶ 33. A short time later, additional Waterford Police Officers, Sergeant Seymour and Officer O’Connor, arrived at the scene to assist Maffeo. Id. ¶ 34. Sergeant Seymour removed the Taser probes from Odom’s legs and they were seized. Id. Odom was arrested and charged with violations of Connecticut General Statutes. Am. Compl. ¶ 25. She was fingerprinted, photographed, and processed, including being held on $2,500 bond as a result of the criminal charges brought against her by Maffeo. Id. ¶ 26.
Maffeo sustained injuries during the altercation between himself and Odom, including bruises, lacerations, and a torn labrum — the cuff of cartilage around the shoulder socket — which required surgery and forced him out of work for more than one year. Def. Maffeo’s 56(a)(1) Statement ¶ 22; Maffeo Aff. ¶38. Odom contends, however, that she never struck or hurt Maffeo and that his injuries were not caused by her. PI. 56(a)(2) Statement ¶ 22. Following the incident, members of the Waterford Ambulance Service attended to Odom. Def. Pendleton and Waterford’s 56(a)(1) Statement ¶ 6. Waterford Ambulance Service personnel took a medical history from Odom, who provided detailed information regarding her medical history, including the fact that she suffered from asthma and had experienced a traumatic brain injury in the past. Id. ¶ 7; Def. Exh. E.
Odom suffered a brain injury on June 6, 2004 when she was involved in a motor vehicle collision with a tractor-trailer being operated by Eric F. Villano and owned by Werner Enterprises, Inc. Def. Pendleton and Waterford’s 56(a)(1) Statement ¶ 8. Following the motor vehicle accident on June 6, 2004, Odom was treated by Laurence I. Radin, M.D. of Neurological Group, P.C.
Id.
¶ 11. Dr. Radin first ex
Odom filed suit against Werner Enterprises as a result of the car accident. In her complaint in that case, she alleged that she suffered injuries including a closed head injury with concussion, headaches, confusion, loss of memory and post-concussion syndrome. Id. ¶ 9. Dr. Radin was deposed in connection with that lawsuit. During his testimony, he confirmed that there is no medical evidence that Odom experienced seizure activity. Id. 111115-17, 19. Dr. Radin further testified that Odom’s diagnosis included concussion, mild traumatic brain injury, and excessive sleepiness. Id. ¶ 18.
Odom has not disclosed any expert witness to testify in this case regarding the nature or effect of her brain injury or any other pre-existing medical condition she had before the incident giving rise to this lawsuit. Id. ¶ 21. Nor has she disclosed any expert witness to testify regarding any pre-existing medical condition that rendered her more susceptible to harm from being tasered, or about injuries she sustained as a result of being tasered. Id. ¶¶ 22-24. Indeed, apart from her affidavit, Odom has produced no evidence at all regarding the nature of her brain injury.
Odom admitted during her deposition that she has no evidence regarding the nature or adequacy of Maffeo’s training, or of Waterford Police policies or procedures as they pertain to use of force in general, or Taser devices specifically. Def. Maffeo’s 56(a)(1) Statement ¶ 23-24. However, she has filed with her objection to the instant motions the Waterford Police Department’s policy regarding the use of a “less lethal device,” which includes Tasers. PI. Obj. Exh. A. The policy authorizes the use of less lethal devices on persons engaged in “Active Resistance,” meaning “actively resisting arrest.” Id. at 1. Under the policy, the use of less lethal devices is not authorized on persons “Passively Resisting,” which is not defined. Id. The policy includes specific instructions pertaining to use of Tasers. Id. at 2-3. Only personnel specially trained in the use of a Taser are permitted to use one, and Tasers are maintained under the command and control of the shift supervisor on duty, who issues them to officers each day and maintains a daily record of their issuance. Id. at 2. The policy explicitly requires a verbal warning to be given before discharging the Taser:
In all applications of the Taser, a verbal warning of the weapons impending use should be given, notifying other Officers of the discharge.
The deploying officer shall announce in a load voice “Taser, Taser, Taser”.
Id. at 3. A written report must be completed following any use of a Taser. Id. The policy further provides that the Taser should not be used against a suspect whom the officer knows to be pregnant. Id. No other medical conditions are referenced in the policy.
The Waterford Police Department also has a general “Use of Force” policy which provides that police officers “shall use only that force that appears reasonably necessary to effectively bring an incident under control,” in accordance with
Odom filed this action in Connecticut Superior Court on September 18, 2008. On October 14, 2008, the Defendants removed the case to this Court on the basis of federal question jurisdiction because Odom asserted claims pursuant to
II. STANDARD OF REVIEW
Summary judgment is appropriate only when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
The Court “construe[s] the evidence in the light most favorable to the non-moving party and ... draw[s] all reasonable inferences in its favor.” Huminski v. Corsones, 396 F.3d 53, 69-70 (2d Cir.2005). “[I]f there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir.2006).
III. DISCUSSION
A. Maffeo’s Motion for Summary Judgment
1. Reasonableness of Maffeo’s Use of Force
Maffeo first argues that he is entitled to summary judgment as to all claims asserted against him because his use of force under the factual circumstances of this case was reasonable as a matter of law. Determining whether the force used by an officer to effect a seizure is “reasonable” under the Fourth Amendment requires “a careful balance of the nature and quality of the individual’s Fourth Amendment interest against the countervailing governmental interest at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation and quotation marks omitted). The inquiry involves “careful attention to the facts and circumstances of each particular 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. Reasonableness is judged from the perspective of a “reasonable officer on the scene,” rather than in hindsight, and must consider the fact that officers must often make split second judgments regarding the necessary amount of force in tense, uncertain, and rapidly evolving circumstances. Id. at 396-97, 109 S.Ct. 1865. Nevertheless, “[g]iven the fact-specific nature of the inquiry, granting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable fact-finder could conclude that the officers’ conduct was objectively unreasonable.” Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.2004).
Maffeo argues that his use of force was reasonable because he was using force to effectuate an arrest of Odom for committing traffic infractions, namely failure to signal in violation of
is justified in using physical force upon another person when and to the extent that he or she reasonably believes such 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.
In turn, the statutory definition of “offense” expressly excludes motor vehicle violations and infractions:
The term “offense” means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed except one that defines a motor vehicle violation or is deemed to be an infraction.
Maffeo further argues that his use of force was justified because Odom resisted his attempts to investigate traffic infractions and to arrest her in violation of
If the facts asserted by Odom are true, Maffeo’s actions also violated Waterford Police Department policy governing the use of Tasers. Under Department policy, a Taser may be deployed only on a subject who is “actively resisting arrest,” not one is who engaged merely in “passive resistance” as Odom contends she was doing in this case. PI. Obj. Exh. A. Further, the policy requires an officer to give warning before deploying a Taser, which Odom claims Maffeo did not do. Id. In sum, the use of a Taser is a significant use of force, and a reasonable jury could well find that its repeated deployment on an individual who is suspected of only minor traffic infractions, poses no immediate threat, is not attempting to escape, and has indicated that she suffers from a brain injury constitutes an excessive and unreasonable use of force. See Bryan, 630 F.3d at 810, 2010 WL 4925422, at *2 (describing use of a Taser as an “intermediate, significant level of force that must be justified by the governmental interest involved”); see also Oliver v. Fiorino, 586 F.3d 898, 903 (11th Cir.2009) (recognizing that a Taser is “designed to cause significant, uncontrollable muscle contractions”). Based upon Odom’s version of the events, Maffeo had less onerous, alternative means available for dealing with the situation. For instance, he could have called for and awaited the arrival of backup officers to assist in bringing the situation under control, as Odom was purportedly not fleeing, threatening, or violent.
2.
Violation of
Maffeo next argues that he is entitled to summary judgment on the Seventh Count, in which Odom asserts a
Resolution of Maffeo’s argument requires the Court to determine whether the
Because an official capacity claim against an official is tantamount to a claim against a governmental entity, when a complaint asserts a
Here, the Amended Complaint does not expressly state in which capacity Maffeo is being sued. The Amended Complaint does, however, identify Maffeo as a duly appointed police officer for the Waterford Police Department “acting in his official capacity” at all times relevant to this action. [Doc. # 23-2 ¶¶ 4-5]. This indicates an intent to sue Maffeo in his official capacity, although it is not dispositive.
See Soto v. Schembri,
960 F.Supp. 751, 755 (S.D.N.Y.1997). On the other hand, the Amended Complaint seeks punitive damages, which, as is well established, cannot be recovered from a municipality.
See City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Courts have held that assertion of a claim for punitive damages is an indicator that the claim was brought against an official in his personal capacity.
See, e.g., Yorktown Med. Lab.,
948 F.2d at 88-89;
Jessamy v. City of New Rochelle, 292
F.Supp.2d 498, 508-09 (S.D.N.Y.2003). In addition, the Amended Complaint names Waterford as a separate defendant, which would have been unnecessary had Odom sought to file only an official capacity suit against Maffeo.
See Jessamy,
292 F.Supp.2d at 508-09. Further, the Seventh Count alleges specific actions taken by Maffeo which she claims violated her
3. Negligence
In addition, Maffeo argues that summary judgment must be entered in his favor as to the First Count, which asserts a claim for negligence, and the Eleventh Count, which asserts a claim for negligent infliction of emotional distress, on the basis of governmental immunity.
“The [common-law] doctrines that determine the tort liability of municipal employees are well established.... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. The hallmark of a discretionary act is that it requires the exercise of judgment. In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” Martel v. Metropolitan District Comm’n, 275 Conn. 38, 48-49, 881 A.2d 194 (2005) (internal citations and quotation marks omitted).
“Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.” Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006) (internal citations and quotation marks omitted).
When a municipal employee’s actions are discretionary in nature, governmental immunity attaches unless one of the following three exceptions applies. “First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a munic
In its Memorandum of Decision on Defendant Pendleton and Waterford’s Motion to Dismiss, which was rendered at a time when the Waterford Police Department’s policy regarding less lethal devices was not part of the record, this Court concluded that Maffeo’s actions were discretionary in nature. See Odom, 2010 WL 466000, at *3. After reviewing the “less lethal devices” policy, however, the Court now finds that genuine issues of material fact exist regarding whether Maffeo was negligent in the performance of any ministerial acts. “[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder [.]” Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). “A ministerial duty on the part of an official often follows a quasi-judicial determination by that official as to the existence of a state of facts. Although the determination itself involves the exercise of judgment, and therefore is not a ministerial act, the duty of giving effect, by taking appropriate action, to the determination is often ministerial.” Pluhowsky v. New Haven, 151 Conn. 337, 347-48, 197 A.2d 645 (1964). Here, the policy explicitly forbids the use of less lethal devices, including Tasers, on persons who are “passively resisting” as opposed to “actively resisting.” PL Obj. Exh. A at 1. The policy also requires that officers give a verbal warning before discharging a Taser. Id. at 3. According to Odom’s version of the facts, Maffeo shot her with his Taser even though she was passively resisting and without giving a warning, and therefore he violated the less lethal devices policy. Where an officer violates police policy or procedure and those violations do not involve the use of the officer’s discretion, the officer is not entitled to immunity and may be held liable for negligently performing ministerial acts. See, e.g., Sciuto v. State, No. CV 950322569S, 1999 WL 1320466, at *2 (Conn.Super.Ct. Dec. 23, 1999) (denying summary judgment on basis of governmental immunity where issues of material fact existed as to whether police officers operated their emergency vehicle in disregard for safety of other persons in violation of established police policy); Hixson v. City of Hartford, No. 381130, 1991 WL 65916, at *1 (Conn.Super.Ct. Apr. 22, 1991) (holding that plaintiff may establish that police officer negligently performed a ministerial duty by violating police department policy and procedure). Because there are genuine issues of material fact regarding whether Maffeo violated a ministerial duty by using his Taser against Odom under the circumstances of this case, he is not entitled to summary judgment based on governmental immunity.
Moreover, even if all Maffeo’s actions were found to be discretionary in nature, he still would not be entitled to summary judgment. In its earlier Memorandum of Decision, the Court declined to dismiss the negligence claims asserted against Pendleton and Waterford on the basis that the identifiable person/imminent harm exception to governmental immunity might apply in this case.
Odom,
2010 WL 466000, at *7. Specifically, the Court found that the plaintiff alleged that “her neurological condition rendered her more susceptible to injury from being Tasered and that Pendleton and the City of Waterford [sic] failed to train officers on the proper forbearance from the use of a Taser on individuals whom they knew had such con
However, in the cited portion of its earlier Memorandum of Decision, the Court was addressing Odom’s allegations that Pendleton and Waterford were negligent in failing to properly train and supervise Maffeo in the use of a Taser. Maffeo was not a party to the motion to dismiss, and therefore the Court did not address Odom’s allegations as to Maffeo. In his instant motion for summary judgment, Maffeo errs in assuming that the standard governing the liability of Pendleton and Waterford set forth by the Court in its earlier Memorandum of Decision applies to him as well. Maffeo had a role in the events giving rise to this case distinct from that of Pendleton and Waterford, and therefore the governmental immunity analysis differs as to him. Odom did not bring suit against Maffeo for supervisory acts or failure to train, but rather for directly causing the alleged harm to her.
Connecticut courts have held that where, as here, an officer is alleged to have used excessive force against a person, he may be found to have subjected an identifiable person to imminent harm and therefore is not protected from suit by the doctrine of governmental immunity. See, e.g., Santana v. Rohan, No. CV040830569S, 2005 WL 1634310, at *5 (Conn.Super.Ct. June 7, 2005) (holding that suspect who was shot by police was an identifiable person subject to imminent harm for purposes of governmental immunity); Balogh v. City of Shelton, No. CV990067521S, 2002 WL 523225, at *8 (Conn.Super.Ct. Mar. 18, 2002) (denying summary judgment on the basis of governmental immunity where plaintiff offered sufficient evidence that her arrest without probable cause and with excessive force subjected her to harm that was significant, foreseeable, and of limited duration); Castorina v. Stewart, No. CV 950324487, 1998 WL 309393, at *6-7 (Conn.Super.Ct. June 3, 1998) (holding that person who was allegedly falsely arrest and assaulted by a police officer could be found by a jury to be an identifiable person subject to imminent harm). Accordingly, because there are genuine issues of material fact regarding whether Maffeo used excessive and unreasonable force against Odom, he is not entitled to governmental immunity as a matter of law, and the negligence claims asserted in the First and Eleventh Counts may proceed to trial.
4. Assault and Battery
Maffeo also seeks the entry of summary judgment in his favor on the intentional assault and battery claim asserted in the Third Count and the willful, wanton, and malicious assault and battery claim asserted against him in the Fifth Count. “To establish a claim for assault and battery, plaintiff must prove that defendants applied force or violence to her and that the application of force or violence was unlawful.”
Williams v. Lopes,
64 F.Supp.2d 37, 47 (D.Conn.1999). Maffeo’s sole argument with respect to Odom’s assault and battery claims is that his use of force against Odom was reasonable as a matter of law and therefore she cannot establish that the alleged harmful contact was unlawful. However, as discussed at length above, there are genuine issues of material fact regarding the reasonableness of Maffeo’s use of force.
See supra
Sec
5. False Imprisonment
Finally, Maffeo argues that he is entitled to summary judgment on the Ninth Count, which asserts false imprisonment, because he had probable cause to arrest Odom for traffic infractions and for resisting arrest.
“False imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another.” Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982). “To prevail on a claim of false imprisonment, the plaintiff must prove that [her] physical liberty has been restrained by the defendant and that the restraint was against [her] will, that is, that [she] did not consent to the restraint or acquiesce in it willingly.” Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992) (citation omitted). A claim for false imprisonment cannot survive if the defendant can establish the existence of probable cause for the confinement. See Johnson v. Ford, 496 F.Supp.2d 209, 213 (D.Conn.2007) (“It is well-established that probable cause is a complete defense to claims of false imprisonment and false arrest.”). Moreover, in order to defeat a claim for false imprisonment, it is not necessary for the defendant to show that probable cause existed as to each individual charge, or as to any charge actually invoked by the arresting officer. Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006). Instead, a claim for false imprisonment will fail so long as the imprisonment itself was supported by probable cause, regardless of whether probable cause supported any charge actually identified by the arresting officer. Id.
Maffeo contends that Odom’s claim for false imprisonment fails as a matter of law because he had probable cause to arrest her for committing traffic infractions, namely
The Court ultimately need not resolve this ambiguity, however, because Maffeo further argues that he had probable cause to arrest Odom for interfering with an officer in violation of
Odom argues that Maffeo did not have probable cause to arrest her for violation of
[T]hat the question of whether an arrest is legal or illegal (i.e. whether there is probable cause therefor) is usually a very difficult factual question; that the prior rule [allowing the use of force to resist an illegal arrest] invites violence; and that it is better social policy to require the arrestee to submit and challenge the arrest in court, rather than to permit him to use force at the place of arrest subject to a later judicial determination of the legality of the arrest.
Id. (quoting Privitera, 1 Conn.App. at 720, 476 A.2d 605). Therefore, Odom was not justified in resisting Maffeo’s attempt to arrest her even assuming that the arrest was illegal.
Nevertheless, the Court concludes that there remain issues of material fact which render summary judgment on Odom’s false imprisonment claim inappropriate. In
Davis,
the Connecticut Supreme Court made clear that, although a person may
The Court also noted that a person is not guilty of violating
6. Summary
In summary, Maffeo’s motion for summary judgment is DENIED in its entirety. The claims asserted against Maffeo for negligence (First Count), assault and battery (Third Count), willful/wanton assault and battery (Fifth Count), violation of
B. Pendleton and Waterford’s Motion for Summary Judgment
1. Negligence
Pendleton and Waterford first move for summary judgment as to the Thirteenth Count asserting negligent supervision and training. Pendleton and Waterford argue that they are entitled to summary judgment because Maffeo did not act negligently and therefore they cannot be held liable for failure to train or supervise him. However, the Court has already held that Odom has presented sufficient evidence for a reasonable jury to conclude that Maffeo’s use of force was excessive and unreasonable. See supra Section III.A.1. Based upon the same evidence, the jury could also conclude that Maffeo acted negligently. Therefore, this argument is unavailing.
Nevertheless, the Court holds that Odom has failed to raise any genuine issue of material fact regarding her negligence claim against Pendleton and Waterford. The Amended Complaint alleges that Pendleton was negligent in that he adopted a policy which allowed Maffeo to carry and use a Taser that he was not properly trained to use, failed to supervise Maffeo’s actions as they related to his carrying and use of a Taser, failed to adequately train Maffeo in determining a suspect’s health condition before deploying a Taser, failed to ensure that Maffeo would only discharge a Taser in accordance with Connecticut and Town of Waterford policies and procedures, and failed to adopt proper policies regarding the use of Tasers. Odom has not proffered any evidence to support these allegations. Instead, in response to the factual assertions made by the Defendants, Odom admits in her Local
Moreover, Odom has failed to raise a genuine issue of material fact regarding Pendleton and Waterford’s entitlement to governmental immunity as to her negligence claim against them. The standards governing a municipal official’s entitlement to governmental immunity are outlined above in Section III.A.3. The Connecticut legislature codified the tort liability of municipalities in
As discussed previously in the context of Maffeo’s motion for summary judgment, Pendleton and Waterford’s entitlement to governmental immunity must be analyzed separately from that of Maffeo, because Maffeo is alleged to have directly caused harm to Odom while Pendleton and Waterford are alleged to be liable as a result of their negligent training and supervision. See supra Section III.A.3. With respect to the negligent training and supervision claim, the Court found in its Memorandum of Decision on Pendleton and Waterford’s Motion to Dismiss that Odom may potentially fall within a foreseeable class of victims who are particularly susceptible to harm from being tasered as a result of a preexisting medical condition, thereby abrogating Pendleton and Waterford’s entitlement to governmental immunity for discretionary acts. Odom, 2010 WL 466000, at *7. In so holding, however, the Court specifically noted that it “may well prove that the facts as developed through discovery challenge the Plaintiffs assertions” regarding her particularized susceptibility to harm from being tasered and Pendleton and Waterford’s failure to properly train Maffeo. Id. at *7.
It is clear that the possibility recognized by the Court in its earlier Memorandum of Decision has come to fruition. As an initial matter, Odom’s memorandum in opposition to Pendleton and Waterford’s motion for summary judgment entirely ignores and fails to address their argument that they are entitled to governmental immunity. Likewise, Odom’s Local
Furthermore, while the evidence in the record shows that Odom suffered a brain injury in an automobile accident on June 6, 2004, there is no evidence that Odom’s brain injury rendered her particularly susceptible to harm from being tasered. Following her accident, Odom was diagnosed with concussion, mild traumatic brain injury, and excessive sleepiness. However, there is no medical evidence that Odom suffers from photosensitivity or seizure activity, as she alleges in her Amended Complaint. To the contrary, Odom now admits in her Local
2.
Violation of
Next, Pendleton and Waterford argue that they are entitled to summary judgment on the Fifteenth Count, which alleges violation of
In her Amended Complaint, Odom alleges that Pendleton “adopted policies regarding the use of force by police officers and the use of Taser guns which he knew would increase the level of police violence in Waterford and said policies were maintained and continued with force despite this knowledge.” [Doc. # 23-2 ¶ 29]. Odom further alleges that Waterford is liable under
This does not end the inquiry, however, because municipality liability does not attach only where the official policy at issue is itself unconstitutional.
See Amnesty America v. Town of West Hartford,
361 F.3d 113, 126 (2d Cir.2004). “Where a city’s official policy is constitutional, but the city causes its employees to apply it unconstitutionally, such that the unconstitutional application might itself be considered municipal policy, the city may be held liable for its employees’ unconstitutional acts.”
Id.
Where, as here, a subordinate municipal official is alleged to have committed the constitutional violation, the plaintiff must establish that the subordinate’s conduct is attributable to the acts or omissions of officials with final policymaking authority.
Id.
at 126. “Thus, where a policymaking official exhibits deliberate indifference to constitutional
In this case, Odom has asserted that municipal liability may lie because Maffeo was not properly trained in the use of a Taser. Inadequate training can be a basis for municipal liability “in limited circumstances.”
City of Canton,
489 U.S. at 387, 109 S.Ct. 1197. “Only where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under
“In order to establish that a failure to train constitutes deliberate indifference to the constitutional rights of the public, a plaintiff must establish (1) that the policymaker knows ‘to a moral certainty’ that his employees will confront a given situation; (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or there is a history of employees mishandling the situation; and finally (3) that the wrong choice by the city employee will frequently cause the deprivation of a citizen’s constitutional rights.” Wilson v. City of Norwich, 507 F.Supp.2d 199, 210 (D.Conn.2007) (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992)).
In addition to establishing that the purported failure to train occurred under circumstances that could constitute deliberate indifference, City of Canton requires that the plaintiff also identify a specific deficiency in the city’s training program and establish that the deficiency is “closely related to the ultimate injury,” such that it “actually caused” the constitutional violation. 489 U.S. at 391, 109 S.Ct. 1197. Thus, a plaintiff must establish that “the officer’s shortcomings ... resulted from ... a faulty training program” rather than from the negligent administration of a sound program or other unrelated circumstances. Id. at 390-91, 109 S.Ct. 1197. Further, it is not sufficient to show that only a particular officer is unsatisfactorily trained, because “the officer’s shortcomings may have resulted from factors other than a faulty training program.” Id. at 391-92,109 S.Ct. 1197.
Here, Odom has proffered no evidence regarding Waterford’s training program for police officers in general or Maffeo’s training in particular, nor has she advanced any theory as to how a training-deficiency caused Maffeo to use excessive force against her. Instead, Odom’s failure to train theory appears to be based solely on evidence that Maffeo attempted to forcibly remove her from her vehicle and then tasered her three times without warning. However, as a matter of law, this is insufficient to support municipal liability. As the Second Circuit has explained,
“City of Canton
unequivocally requires ... that the factfinder’s inferences of inadequate training and causation be based on more than the mere fact that misconduct occurred in the first place.”
Amnesty America,
361 F.3d at 130. Odom cannot prevail on her claim that Waterford’s training program was inadequate without any evidence as to
Odom also argues that municipal liability attaches because Pendleton failed to adequately supervise Maffeo. The Second Circuit has held that a plaintiff injured by a police officer’s use of excessive force may establish a basis for municipal liability by showing that the municipality’s policymakers were “knowingly and deliberate indifferent to the possibility that its police officers were wont” to violate the constitutional rights of arrestees. Fiacco v. City of Rensselaer, 783 F.2d 319, 326-27 (2d Cir.1986). In this context, Odom must demonstrate Pendleton’s deliberate indifference by showing that “the need for more or better supervision to protect against constitutional violations was obvious,” but that Pendleton made “no meaningful attempt” to forestall or prevent the unconstitutional conduct. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). An obvious need may be shown through proof of repeated complaints of civil rights violations that are followed by no meaningful attempt to investigate or forestall further incidents on the part of the municipality, or through expert testimony that a particular practice condoned by the municipality presented an unusually high risk that constitutional rights would be violated. Id.
Odom further contends that Pendleton is personally liable for failing to supervise Maffeo. Supervisory liability is a concept distinct from municipal liability, and is “imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates.”
Clay v. Conlee,
815 F.2d 1164, 1170 (8th Cir.1987). “It is well-settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
The only evidence Odom proffers in support of her failure to supervise theory is a newspaper article describing a prior incident in which Maffeo used excessive force against a suspect during a traffic stop. [Doc. # 65-3]. The article, published in The Day on July 7, 2006, reported that Maffeo pulled a gun on a man named Kiribaka Tucker after a pursuit at speeds of 35 miles per hour.
Id.
Tucker drove away from the scene after Maffeo pulled the gun on him.
Id.
Maffeo received a written reprimand signed by Pendleton as a result of the incident.
Id.
Pendleton was quoted in the article as stating that Maffeo’s actions were unwarranted and violated the Waterford Police Department’s Use of Force policy.
Id.
Maffeo filed a grievance regarding the reprimand, which was denied by the Police Commission.
Id.
Odom argues that, based upon evidence of
Odom’s argument is unavailing. As an initial matter, newspaper articles offered for the truth of the matters asserted therein are inadmissible hearsay that may not be considered by the Court in deciding a motion for summary judgment. See Allen v. City of New York, 480 F.Supp.2d 689, 720 (S.D.N.Y.2007) (finding that newspaper article reporting that inmates at Rikers Island had been routinely beaten and that correctional officers had taken steps to conceal these assaults was inadmissible hearsay and could not be used to demonstrate an unconstitutional policy, custom, or practice); Gonzalez v. City of New York, 354 F.Supp.2d 327, 347 n. 29 (S.D.N.Y.2005) (finding newspaper articles offered in support of plaintiffs’ pattern and practice claims to be “inadmissible hearsay and unusable to defeat summary judgment”); United States v. Difeaux, 163 F.3d 725, 729 (2d Cir.1998) (holding that newspaper articles alleging improper motivations of prosecutor’s office were impermissible hearsay).
Even were the Court to consider the newspaper article, however, it does not support a claim that Pendleton was deliberately indifferent to or otherwise personally involved in the violation of Odom’s constitutional rights. The incident recounted in the newspaper article did not involve Maffeo’s use of a Taser on a person with a medical condition, which is the crux of Odom’s allegations in the instant case. Also, contrary to Odom’s contentions, Pendleton took appropriate action in response to Maffeo’s excessive use of force during that earlier incident. Following the incident, the Waterford Police Department investigated the relevant facts and circumstances. Pendleton Aff. ¶ 5. Pendleton gave Maffeo a written reprimand, and Maffeo was also required to participate in additional police training on the Department’s Pursuit Driving policy and Use of Force policy.
Id.
¶¶ 6-8. These facts contradict Odom’s conclusory allegations of deliberate indifference.
See Zahra v. Town of Southold,
48 F.3d 674, 685 (2d Cir.1995) (affirming dismissal of
Finally, Odom contends that she cannot adequately respond to the Defendants’ arguments regarding municipal and supervisory liability because the Defendants did not provide her with certain material during discovery, including the Waterford Police Department’s directives
Moreover, Odom has not satisfied the standard for modifying a scheduling order pursuant to
As the record of this case reflects, Odom was continually represented by counsel in this matter and had more than one year to conduct discovery. This action was filed on September 18, 2008, and was removed to this Court on October 14, 2008. [Doc. # 1]. Attorney Bush and his colleague Attorney Taalman each filed a notice of appearance on behalf of Odom on October 10, 2008. [Doc. ## 9, 10]. On November 26, 2008, the Court entered a scheduling order setting a discovery deadline of September 15, 2009 as proposed by the parties in their
On July 17, 2009, the Court granted Maffeo’s motion to extend the discovery deadline until November 2, 2009. [Doc. # 37]. Discovery in this matter therefore expired on November 2, 2009, without motion for a further extension by either party. Thereafter, on December 12, 2010, Attorney Bush filed a motion on behalf of Odom seeking an extension of the dispositive motions deadline, which at the time was set for December 21, 2009. [Doc. # 50]. In the motion, Attorney Bush explained that Attorney McNamara, who had been serving as lead counsel for Odom, had unexpectedly passed away, and that an extension of time was needed to arrange for Odom to retain new lead counsel and arrange the appropriate transfer of files from Attorney McNamara’s office as well as to provide the parties with.an opportunity to complete Odom’s deposition.
Id.
The motion further indicated that Attorney Bush’s firm had no active involvement
Subsequently, on February 16, 2010, Attorney Ankrom filed a notice of appearance on behalf of Odom. [Doc. # 53]. Two days later, on February 28, 2010, Attorney Ankrom filed a motion for extension of time to file dispositive motions on the basis that he needed additional time to review the case materials obtained from Attorney McNamara’s office. [Doc. # 54]. The motion further indicated that the parties had agreed to continue Odom’s deposition until early April to afford Attorney Ankrom adequate time to prepare, but it made no mention of any other outstanding discovery matters. Id. The Court granted the motion on February 22, 2010, and extended the dispositive motions deadline until May 6, 2010 as requested. [Doc. # 56]. The Defendants filed their respective motions for summary judgment on May 4, 2010. [Doc. ## 57, 58]. On May 17, 2010, Odom moved to extend the deadline for filing a response to the motions for summary judgment, arguing, for the first time, that the Defendants had refused to comply with belated discovery requests made by Attorney Ankrom after expiration of the discovery deadline. [Doc. # 60]. The motion invoked Attorney McNamara’s unexpected passing as a reason for Odom’s attempt to seek discovery months after expiration of the discovery deadline, but did not state why Attorney Bush did not pursue production or invoke the Court to resolve a discovery dispute. Id. The Court notes that under its Chambers Practices, which are electronically served on the parties and are also available on the District of Connecticut’s website, the Court makes itself available every Friday afternoon for telephonic discovery dispute resolution. See http://www.ctd.uscourts.gov/vlb.html. By order dated May 21, 2010, the Court denied the motion, explaining that an additional extension of time to permit Odom to conduct discovery such a late juncture was not warranted in light of the fact that Odom was continually represented by Attorney Bush throughout this litigation and that permission to appear in a limited noticing capacity was neither sought by Attorney Bush nor granted by the Court. [Doc. # 63]. The order further noted that the Court had taken the delay caused by Attorney McNamara’s passing into account by granting a sixty extension of the dispositive motions deadline as previously requested by Odom. Id.
Based upon the foregoing case history, it is clear that Odom has not satisfied the “good cause” standard and is therefore not entitled to additional discovery in order to oppose the instant motions for summary judgment. Odom was allowed until November 2, 2009 to conduct discovery in this matter, more than one year after the case was filed. During that entire period, she was represented both by Attorney McNamara as well as by Attorney Bush and Attorney Taalman, yet the materials that she now seeks from the Defendants were never requested. Following Attorney McNamara’s unfortunate passing, the Court granted two extensions of the dis-positive motions deadline to enable Odom to obtain new lead counsel and to afford that counsel, Attorney Ankrom, additional time to review the discovery materials that had been compiled by Attorney McNamara and to prepare for Odom’s deposition. Nevertheless, at no point prior to the filing of the instant motions for summary judgment did Attorney Bush, Attorney Taalman, or Attorney Ankrom advise the Court of any outstanding discovery mat
Accordingly, Odom has failed to raise any genuine issue of material fact with respect to Pendleton and Waterford’s liability under
3. Indemnification
Finally, Waterford seeks the entry of summary judgment in its favor on the Second, Fourth, Sixth, Eighth, Tenth, Twelve, Fourteenth, and Sixteenth Counts, each of which seeks indemnification for the acts of the individual defendants, Pendleton and Maffeo, pursuant to
Any town, city or borough ... shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty....
“
The Court has denied Maffeo’s motion for summary judgment in its entirety. Therefore, genuine issues of material fact remain regarding Odom’s claims against Waterford for indemnification for Maffeo’s alleged torts under Connecticut General Statute
In summary, Pendleton and Waterford’s motion for summary judgment is GRANTED IN PART and DENIED IN PART. The claims asserted against Pendleton and Waterford for negligent training and supervision (Thirteenth Count) and violation of
IV. CONCLUSION
Based upon the foregoing reasoning, defendant Maffeo’s motion for summary judgment is DENIED, and defendants Pendleton and Waterford’s motion for summary judgment is GRANTED IN PART and DENIED IN PART as stated, above. This case will proceed to trial on the surviving claims asserted in the Amended Complaint as set forth in the Court’s Scheduling Order dated December 14,2010. [Doc. #68].
IT IS SO ORDERED.
Notes
. The Plaintiff‘s Amended Complaint identifies the defendant as “Gilbert Matteo.” His correct name is actually Gilbert Maffeo, and the correct spelling of his name will be used in this Memorandum of Decision.
. The Plaintiff‘s Amended Complaint identifies the defendant as “City of Waterford.” The defendant’s proper name, “Town of Waterford,” will be used in this Memorandum of Decision.
. This statute provides, in pertinent part, that a police officer “is justified in using physical force upon another person when and to the extent that he or she reasonably believes such
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.”
. This statute provides, in pertinent part: “Peace officers ..., in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others.... Members of any local police department ..., when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest....”