Rutledge v. Krynski

Franklin Rutledge v. Thomas Krynski

No. CV166032664S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

November 1, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE #102

PETER EMMETT WIESE, JUDGE.

I Procedural History

In an eight-count complaint dated March 3, 2016, the plaintiff Franklin Rutledge, claims various constitutional and state law violations against the defendant, Thomas Krynski. The complaint alleges the following facts. On April 13, 2015, the plaintiff was traveling on Route 72 West towards Plainville Connecticut, when his car hit a pothole causing a flat tire. The plaintiff subsequently pulled over, called for roadside assistance and activated his hazard lights. While waiting for roadside assistance, Krynski, a state trooper, arrived and informed the plaintiff to change the tire and to move his car. The plaintiff informed him that he was waiting for a tow truck. An argument ensued, during which the defendant threatened to arrest the plaintiff if he kept talking and placed his hand or finger onto the plaintiff's chest. The plaintiff also alleges that the defendant grabbed his Taser gun and pointed and/or displayed it to the plaintiff and stated that the plaintiff was being disrespectful. By this time, another trooper arrived and informed the plaintiff that he should move his car because it was in a dangerous area. During discussion with the troopers, the plaintiff conceded to drive away from the area, but was worried that driving on the fiat tire would ruin the tire rim. The plaintiff followed by the troopers, drove his car to a Kohl's parking lot, at which point he examined the tire rim and found two marks from the asphalt. Further conversation between the plaintiff and the troopers ensued, at some point the troopers left and roadside assistance arrived.

The plaintiff brings a 42 U.S.C. § 1983 action against the defendant in his individual capacity. Count one alleges excessive force in violation of the plaintiff's fourth and fourteenth amendment rights. Count two claims that the plaintiff's rights under the first and fourteenth amendments to freedom of speech and due process were also violated. The remaining six counts are state claims sounding in assault, battery, gross negligence, recklessness, intentional infliction of emotional distress and negligent infliction of emotional distress. As a result of the defendant's conduct, the plaintiff contends that he has suffered psychological harm, emotional distress and pain and suffering. The plaintiff seeks compensatory damages, attorneys fees and other just and appropriate relief.

On May 5, 2016, the defendant filed a motion to strike with supporting memorandum of law (102.00). On June 5, 2016, the plaintiff filed an objection to the motion to strike (105.00). The parties presented oral argument at short calendar on July 18, 2016.

II DISCUSSION

A. Legal Standard--Motion to Strike

" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside of complaint). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

B. Parties' Arguments

In his motion to strike, the defendant argues that counts one (excessive force), two (freedom of speech), five (gross deviation from reasonable care), six (recklessness), seven (intentional infliction of emotional distress) and eight (negligent infliction of emotional distress) should be stricken on the grounds that they fail to state a claim upon which relief can be granted. As to the excessive force allegation, the defendant asserts that displaying a Taser gun is not a use of force, and that placing a finger or hand on the plaintiff's chest does not rise to a fourth amendment violation. The defendant asserts that a freedom of speech violation requires an " actual chill" to the plaintiff's speech, which according to the complaint, did not occur. As to count five, the defendant argues that gross deviation from reasonable care as a state trooper is not an actionable claim for monetary damages. As to the recklessness claim, the defendant argues that the plaintiff failed to allege any reckless conduct. Furthermore, the defendant avers that the allegations do not constitute extreme and outrageous conduct as required for an intentional infliction of emotional distress claim. Lastly, the defendant avers that statutory immunity under General Statutes § 4-165 bars the negligent infliction of emotional distress claim.

In his opposition to the motion, the plaintiff contends that the defendant's threat to use a Taser gun and to arrest him constitutes unlawful use of force. As to the freedom of speech violation, the plaintiff argues the allegation of nonspeech injuries, such as a damaged tire rim, sustains his first amendment claim. The plaintiff also argues that the complaint alleges sufficient facts to sustain the gross deviation from reasonable care and recklessness counts. Lastly, the plaintiff asserts that the display of a Taser gun constitutes extreme and outrageous conduct.

C. Analysis

Constitutional Claims

Count One--Excessive Force

Count one, brought under 42 U.S.C. § 1983, alleges excessive force in violation of the plaintiff's fourth and fourteenth amendment rights.^[1]" To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law . These two elements denote two separate areas of inquiry the plaintiff must prove a constitutional or [federal] statutory violation and that violation must have been committed by the defendant acting under color of law." (Citations omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 38 Conn.App. 715, 719-20, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). " [Section] 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." (Internal quotation marks omitted.) Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). " In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Id., 394.

Our Appellate Court has stated: " [A]ll claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard . . . Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it . . . Because [t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application . . . its proper application requires careful attention to the facts and circumstances of each particular case . . ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Weyel v. Catania, 52 Conn.App. 292, 296-97, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).

A determination of reasonableness under the fourth amendment " requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake . . . [I]ts proper application requires 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." (Citations omitted; internal quotation marks omitted.) Graham v. Connor, supra, 490 U.S. at 396. See also Odom v. Matteo, 772 F.Supp.2d 377, 391 (D.Conn. 2011) (" 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 . . . constitutes an excessive and unreasonable use of...