Leona R. McCulley v. Town of Darien (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (129.00)

I. Background

The plaintiff Leona McCulley, representing herself;  sues the Town of Darien and a Darien police officer, Sergeant Jeremiah Johnson, claiming she was subjected to excessive force and false arrest when police, responding to a call, arrived at a Darien residence, Apartment 412, 137 Hollow Tree Ridge Road on August 5, 2006, where McCulley was staying.   The facts appearing in the record are not all that complex, but the procedural history of this case and an earlier case, since withdrawn, are tortuous.

McCulley initially served a complaint against the Darien police department and two police officers, including Johnson, on May 23, 2009.   McCulley v. Darien Police Dept., CV 09 5011925.   She then filed an amended complaint.   The complaint was dismissed as against the police department, and a motion to strike filed by the two officer defendants was granted by Judge Tierney in early September 2009 with the proviso that McCulley could replead “after discovery.”   Defs. Memorandum, May 1, 2013 Ex. B (Dkt. Entry 131.00).   However, McCulley commenced this case by serving a new complaint against the Town of Darien and Officer Johnson only, dated September 19, 2009.   In February 2010 McCulley filed a withdrawal of the claims against the second police officer in the first action (CV 095011925).   That withdrawal also purportedly withdrew this action (CV 095012886).   In September 2010 Johnson moved for a judgment of non-suit in the first action based on the plaintiff's failure to provide requested discovery.   This motion was granted by Judge Mottolese who noted that no further compliance would be achieved by giving McCulley a further opportunity to comply.   The judgment has not been re-opened.

In her complaint in this case, McCulley alleges that Darien police officers, including Johnson, responded to a 911 call about a domestic dispute at 137 Hollow Tree Ridge Road, Apartment 412 at about 9:30 p.m. on August 5, 2009.   She alleges that Johnson acted negligently, and caused her injury when, apparently in the course of handcuffing the plaintiff, his knee “pushed in” her back and knee.   McCulley alleges excessive force was used because she was arrested on a minor charge, did not attempt to flee or resist arrest, and was surrounded by three police officers.   She alleges she incurred a “tiny tear to her spine” and a bruised right knee.

The defendants have moved for summary judgment dismissing the complaint in its entirety.   The grounds for dismissal are several:  (1) that the plaintiff has withdrawn her claims;  (2) the case should be dismissed on the basis of the prior pending action doctrine;  (3) dismissal is warranted on the basis of res judicata;  (4) the statutes of limitations bars the action;  (5) qualified immunity protects Johnson's alleged actions;  (6) the Town of Darien did not have a policy or custom sanctioning wrongful acts by its employees.   The defendants' motion is supported by a memorandum of law, an affidavit of Johnson and copies of documents mainly from the court records of the two cases commenced by McCulley.

The plaintiff opposes the motion and has filed an unsworn written statement apparently aimed at refuting some factual conclusions presented by the defendants.   Appended to plaintiff's statement were certain documents (marked as Exhibits 1 through 10) including police, emergency services and hospital reports.   Dkt. Entry 133.00.

II. Discussion

A. Withdrawal of Case. The defendants contend that the Form JD–CV–41 withdrawal signed by McCulley (Ex. C to defendants' summary judgment memorandum) entitles them to summary judgment.   The court disagrees.   The court is not aware of the circumstances surrounding the filing of that document, but is convinced that it did not signify that McCulley intended to withdraw her claim against the defendants.   Nor does it appear the defendants, who continued to actively litigate the case, did either.

B. Prior Pending Action.   Defendants contend that this case “should ․ have been dismissed pursuant to the prior pending action doctrine.”   Defs. Memo, 8. They apparently are referring to a period of time when the two similar cases were pending.   However, no motion to dismiss was filed at that time;  the first action has been dismissed, and there is presently no pending prior action.

C. Res Judicata.   Defendants contend that the dismissal of the first action against Johnson should act as res judicata barring the litigation of this case.   The court is aware of certain situations when a dismissal is entered as a final sanction against a party may be deemed a resolution on the merits that can act as a bar to another case on the same claim.   The court does not believe this is such a case.

D. Statute of Limitations.   Next, the defendants urge that summary judgment should be granted because this action is barred by the applicable statutes of limitation:  General Statutes §§ 52–587 (torts, three years) and 7–465 (personal injury action against municipality and municipal employee, two years).   An action is commenced when the summons and complaint are served on the defendant.   In the plaintiff's first action (CV 09 5011925) the summons and complaint were served on May 22, or 23, 2009.   Def. Memo., Ex. D. The second summons and complaint (CV 09 5012886) appears to have been mailed to counsel for the defendants in September 2009.   Because the first action was commenced within three years, and it is unclear from the record whether the second complaint was really intended to be in response to Judge Tierney's order, the court declines at this time to grant summary judgment on statute of limitations grounds.

E. Qualified Immunity.   Sergeant Johnson contends that he is immune from suit by reason of the qualified immunity recognized by the United States Supreme Court to apply to cases brought pursuant to 42 U.S.C. § 1983 (“Every person who” under color of law “subjects” another person “to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ․”).¹  A local official performing a discretionary function has qualified immunity from suit, provided his conduct does not violate clearly established federal statutory or constitutional rights which a reasonable person should have known of.   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).   Claims that police officers have used excessive force are to be judged by the Fourth Amendment's objective reasonableness standard;  i.e. “From the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and without reference to the officer's motivation.  Graham v. Connor, 490 U.S. 386, 396–97 (1989).   State courts facing qualified immunity issues in Section 1983 cases follow federal precedent.  Weyel v. Catania, 52 Conn.App. 292, 296, cert. denied, 248 Conn. 922 (1999).

The evidence before the court includes Johnson's affidavit, police and hospital reports and McCulley's unsworn statement.   From these sources, the court gleans the following uncontested facts.   Sergeant Johnson states he was called to Apartment 412 at 137 Hollow Tree Ridge Road where McCulley was present with her daughter, a younger woman, and two young children.   The daughter, Butler, had a torn shirt and blood flowing from her nose.   Both children and Butler were crying.   Johnson Aff. ¶¶ 1–6.   It was reported to Johnson that McCulley was intoxicated.   McCulley was ordered to get on the ground;  she initially refused, but after another officer displayed his taser gun, she threw herself on the ground yelling “shoot me ․ I'm black.”   While on the ground, McCulley kept moving her arms and legs which Johnson perceived to be an effort to avoid handcuffs.   Another officer put his knee on her back, and she was handcuffed.   McCulley admitted to have been drinking at an earlier party.  Id., ¶¶ 7–9, 11.   McCulley was charged with four criminal offenses and transported to Stamford Hospital.   Emergency Medical Services was called to transport her because of her repeated statements that she wanted to die.   Id., ¶ 10.   When she reported in to the police station the next day she was released on a promise to appear.  Id. 12.

Other documents before the court support the statements in Johnson's affidavit.   McCulley's answers to interrogatories state she told the police at the apartment that she had been drinking.   Ex. D., p.10 to defendants' motion for non-suit in CV 09 5011925 which is attached to Def. Memo as Exhibit F. McCulley's state of intoxication the night of August 5, 2009 was noted in exhibits submitted by McCulley in opposition to summary judgment.   Pl. Opp. (Dkt. Entry 133.00) Exhs. 1 (Darien EMS report) 3, 7, 9 (Stamford Hospital report).   Her aggressive behavior that evening was also noted.  Id. Exhs. 1, 2, 3, 7 and 9. According to an investigative report by the Darien Police Department, McCulley stated the police officer's knee was removed from her back when the officer was informed she had a bad back.  Id., Ex. 6.

McCulley's opposition papers do not take issue with the facts set forth in Johnson's affidavit and other exhibits before the court.   Specifically, she does not contradict that a physical altercation occurred with her daughter which apparently prompted the call to the police, and are reported on the Department of Children and Families report attached as Exhibit 3 to her opposition.   Indeed, in Exhibit D to defendants' memorandum (the initial complaint in CV 09 5011925) McCulley recounts the altercation with her daughter and the entire incident in some detail, and this recounting, a judicial admission, is not materially at odds with Johnson's affidavit or the other evidence.

The court concludes that there are no material facts at issue, and that Sergeant Johnson was performing a discretionary function in dealing with McCulley and her family on August 5, 2006 and his conduct did not violate McCulley's federal statutory or constitutional right that an objective and reasonable police officer would have been aware of.   Specifically, under the circumstances apparent in the record, including the plaintiff's intoxication, the occurrence of a physical altercation, all in the presence of two young children, neither the arrest nor the handcuffing was an exercise of excessive force or a readily apparent violation of federal rights.   The United States Supreme Court has stated:

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

Graham v. Connor, supra, 490 U.S. 396–97 (1989).   The court determines that Johnson is entitled to qualified immunity from suit by McCulley over the August 5, 2009 arrest.

Turning to the claim against the Town of Darien, the court recognizes that the qualified immunity available to Johnson is not available to Darien.  Owen v. City of Independence, 445 U.S. 622 (1980).   Therefore, it does not necessarily follow that Darien is not liable because Johnson has immunity.   Local governing bodies can be sued directly under Section 1983 for money damages resulting from unconstitutional action that implements or executes a policy, ordinance, regulation or custom adopted or promulgated by the town or other local municipal body.  Monell v. Department of Social Services of New York, 436 U.S. 658, 690 (1978).   The Town of Darien may not be held vicariously liable for Section 1983 violations by its employees under a theory of respondeat superior, but only when the acts of employees were the product of a municipal policy or custom.  Id., 693–94.

In this case, McCulley makes no factual allegation that her injuries resulted from the implementation or recognition of any policy, ordinance, regulation or custom of the Town of Darien.   Nor is there any evidence or allegation that Darien was deliberately indifferent to certain police activities, pursued a policy of inadequate training or supervision or in any other fashion permitted, allowed or ignored unconstitutional actions by its police officers.   Indeed, the thoughtful letter of Lieutenant Anderson, submitted by McCulley in support of her opposition to summary judgment, indicates just the opposite.   Pl. Obj, Ex. 6.

In a recent federal case in the District of Connecticut, Beckford v. City of New Haven, 3:11–cir.498 (VLB) (D.Conn.2011), Judge Bryan found that the lack of the necessary allegations pertaining to municipal policy, custom etc., supported dismissing a complaint against New Haven for failure to state a claim upon which relief could be granted.  2011 WL 6153183.   Here, McCulley's complaint not only fails to make the necessary allegations required by Monell and subsequent cases, but she has failed to offer any evidence that ties Darien to the allegedly offending conduct.

III. Conclusion

For the reason stated herein summary judgment is granted dismissing the claims against the Town of Darien and the Police Officer Sergeant Johnson.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. McCulley's complaint makes no reference to Section 1983;  nevertheless, that statute is the primary means of seeking legal compensation for allegedly wrongful acts committed by local or state entities and employees.   Indeed McCulley's opposition makes reference to cases applying, or not, the doctrine of qualified immunity under Section 1983..  FN1. McCulley's complaint makes no reference to Section 1983;  nevertheless, that statute is the primary means of seeking legal compensation for allegedly wrongful acts committed by local or state entities and employees.   Indeed McCulley's opposition makes reference to cases applying, or not, the doctrine of qualified immunity under Section 1983.

Adams, Taggart D., J.T.R.