Belanger v. City of Hartford

578 F.Supp.2d 360

David BELANGER, Plaintiff, v. CITY OF HARTFORD and Garth Perri, Defendants.

Civil Action No. 3:07-cv-52 (VLB).

United States District Court, D. Connecticut.

June 19, 2008.

COPYRIGHT MATERIAL OMITTED

David M. Poirot, Gary R. Gold, Gold & Levy, Hartford, CT, for Plaintiff.

John Rose, Jr., Corporation Counsel, Joseph W. McQuade, Kainen, Escalera & Mchale, PC, Hartford, CT, for Defendants.

MEMORANDUM OF DECISION AND ORDER DENYING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Doc. # 24] AND DENYING THE DEFENDANTS' MOTION TO STRIKE [DOC. # 28]

VANESSA L. BRYANT, District Judge.

The plaintiff, David Belanger, brought this excessive force case against the defendants, the City of Hartford ("the city") and police officer Garth Perri, asserting claims of assault, negligence, recklessness and/or wanton misconduct, and violation of his Constitutional rights pursuant to 42 U.S.C. § 1983 against Perri, and indemnification against the city pursuant to Connecticut General Statutes § 7-465. Presently pending before the court are the defendants' motion for summary judgment and motion to strike certain portions Belanger's affidavit offered in opposition to the motion for summary judgment. For the reasons set forth below, the defendants' motions are DENIED.

I. Facts

The following facts relevant to the defendants' motion for summary judgment are undisputed unless otherwise noted. On the night of December 23, 2004, Belanger, Chris Mason, and Ryan Krawfsky went to the Brickyard Café, a bar in downtown Hartford, Connecticut. The trio parked the car in an outdoor lot across the street from the bar. After leaving the bar, the friends retrieved the car from the parking lot. Krawfsky drove. Mason sat in the front passenger's seat. Belanger sat in the back seat on the passenger's side. While waiting in a line of cars to exit the lot, Krawfsky's car was bumped from behind by another vehicle, instigating a confrontation.

Krawfsky exited his car first, approached the other car, and began arguing with and then punching the driver, Edgar Diaz, through the open window. Krawfsky then pulled Diaz out of the car and fought with him on the ground. Mason exited Krawfsky's car second. He approached the passenger's side of Diaz's car and began punching the front seat passenger, Jesus Aguilera, through the front passenger's side window. Belanger then exited the car and approached the second vehicle. When the altercation began, Perri was standing down the block from the parking lot monitoring traffic flow. Upon hearing the altercation, he and two other officers approached to intervene.

At this point, Belanger and Perri's versions of the facts diverge. Belanger claims that he followed Mason to the passenger's side of Diaz's car and tried to restrain Mason from punching Aguilera. He stepped between Mason and Aguilera, placing his left hand on Aguilera's chest and his right hand on Mason's shoulder. Belanger felt Mason drop to the ground with his right hand that was on Mason's shoulder. Belanger rotated his upper torso to the right to see what caused Mason to fall. At that point, Perri struck Belanger in the face with his baton. Belanger never saw Perri.

Belanger claims the rear bumper of Krawfsky's car and the front bumper of Diaz's car were pressed together allowing no room to walk between the vehicles. He did not hear any verbal warnings from the police. He did not feel any police officer make any physical contact with him prior to being struck in the face.

Perri claims that when he first saw the altercation, Belanger and Krawfsky were on the driver's side of Diaz's car and only Mason was on the passenger's side. Perri first approached Mason on the passenger's side and pushed him to the ground. Perri observed Belanger and Krawfsky on the driver's side first standing side by side punching Diaz through the window and later kicking him in the head while on the ground. After pushing Mason down, Perri observed his fellow officers fighting with Krawfsky while Belanger continued kicking Diaz in the head. At this point, Perri alleges having a clear passage of about two feet of space between the front of Diaz's car and the back of Krawfsky's car. He walked directly between the vehicles and approached Belanger. Perri identified himself as a police officer and issued orders to stop. Belanger ignored the verbal commands. Fearing for Diaz's safety, Perri struck Belanger in the left shoulder or biceps area with his baton. Belanger turned towards Perri with clenched fists and his knees bent in a fighter's stance. Perri again swung his baton at shoulder height. Belanger either stumbled over Diaz or ducked, and, as a result, was struck in the left side of the face. Perri also notes that at some point one of the other officers deployed O.C.—"pepper"— spray, affecting his breathing and burning his eyes. Belanger suffered a detached retina, requiring surgery.

On January 11, 2007, Belanger commenced this action against Perri and the city. [Doc. # 1] On December 17, 2007, the defendants moved for summary judgment on all claims. [Doc. # 24] Belanger filed his opposition to that motion on January 7, 2008, including an affidavit in support of his opposition. [Docs. # 25, 26] On January 22, 2008, the defendants moved to strike certain paragraphs of Belanger's affidavit. [Doc. # 28]

II. Motion to Strike

The defendants' motion to strike seeks to preclude portions of Belanger's affidavit that mention Perri striking Belanger's face because Belanger testified at his deposition that he never saw Perri. The motion is DENIED for two reasons. First, Belanger's affidavit describes the circumstances surrounding the baton strike and not Perri's actions themselves. Belanger does not attempt to describe Perri's physical characteristics while swinging the baton, only the fact that Perri struck him. There is no statement in the affidavit about Perri's posture, form, stance, facial expression or demeanor, which Belanger admittedly did not see. Second, Perri admits striking Belanger in the face.

The court notes that the disposition of the motion to strike has no bearing on the outcome of the motion for summary judgment. The facts asserted by the defendants in their own affidavits and exhibits are both material and disputed, thereby warranting denial of the motion for summary judgment for the reasons stated below.

III. Motion for Summary Judgment

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." Fed.R.Civ.P. 56(c). "The substantive law governing the case will identify those facts that are material, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The moving party bears the burden of showing that no genuine issues exist as to any material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). "If the party moving for summary judgment demonstrates the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor." Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir.2002).

"The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal quotations and citations omitted). A party also may not rely on conclusory statements or unsupported allegations that the evidence in support of the motion for summary judgment is not credible. Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993).

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 nonmoving party, summary judgment must be denied." Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir. 2006).

A. 42 U.S.C. § 1983

Belanger claims Perri violated his Constitutional rights as guaranteed by the Fourth, Fifth, Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Perri asserts in the motion for summary judgment that he is shielded from liability based on qualified immunity.

"The doctrine of qualified immunity shields police officers acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their actions violate clearly-established rights of which an objectively reasonable official would have known." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). "This is a doctrine that seeks to balance the twin facts that civil actions for damages may `offer the only realistic avenue for vindication of constitutional guarantees,' and that such suits nevertheless `can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.'" Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.2006) (quoting Anderson v. Creighton, 483 U.S. 635,...