Stephen A. Cohen v. Kyle N. Mortensen (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 109.00

I

PROCEDURAL HISTORY

This action arises out of an arrest that occurred on March 6, 2011.   The plaintiff, Stephen A. Cohen, was arrested by Kyle N. Mortensen, a police officer employed by the town of Farmington.   Mortensen and the town of Farmington are the defendants in this action.   On March 9, 2012, the plaintiff filed a two-count complaint.   The plaintiff alleges in the first count, which is against Mortensen individually, that:  (1) the arrest at issue was wanton and malicious because it was without probable cause and Mortensen knew that the plaintiff was not guilty of any crime;  (2) Mortensen searched the plaintiff's vehicle without a warrant and made no written inventory of the vehicle;  (3) despite the plaintiff informing Mortensen of his shoulder problems, Mortensen roughly treated the plaintiff causing injury;  and (4) Mortensen had the plaintiff's vehicle towed even though it could have been driven home by one of the plaintiff's family members who were present at the scene.

Count two is against the town of Farmington and therein the plaintiff alleges that:  (1) the town improperly employed, trained, supervised and instructed Mortensen such that he procured the arrest of the plaintiff wantonly, maliciously, and without probable cause;  and (2) the town has a policy regarding driving under the influence (“DUI”) such that “an inordinate emphasis is placed on making arrest, resulting [in] an unacceptable rate of false arrests.”

On March 4, 2013, the defendants filed the present motion for summary judgment along with excerpts of uncertified deposition testimony by the plaintiff; ¹  a signed affidavit by Mortensen;  a copy of general order 3.106 of the Farmington police department;  a copy of the vehicle inventory report;  and a copy of the accident report.   On April 26, 2013, the plaintiff filed his objection thereto along with a memorandum of law, but with no evidence in support.   The court heard oral argument on May 6, 2013 and ordered supplemental briefs to address the plaintiff's claim at oral argument that he is also bringing claims for excessive force and deliberate indifference to a serious medical need.   On May 20, 2013, the defendants filed a supplemental motion for summary judgment along with additional excerpts of uncertified deposition testimony.   On May 29, 2013, the plaintiff filed his reply thereto, again with no evidence in support.

II

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

The defendants argue that they are entitled to summary judgment for the following reasons:  (1) the plaintiff's claim for false arrest fails because Mortensen had probable cause for the arrest;  (2) the plaintiff's claim for unlawful search fails because the search was lawful;  (3) the plaintiff's claims are barred by the doctrine of qualified immunity;  (4) the failure to train claim fails as a matter of law;  and (5) the plaintiff's claims are barred by the doctrine of governmental immunity.   In response, the plaintiff argues:  (1) that his claims against Mortensen “are not barred by governmental immunity because [the] decision to not handcuff the defendant in front was not discretionary”;  and (2) even if Mortensen's actions were discretionary, “two exceptions” apply, namely:  “Mortensen's decision not to handcuff [the plaintiff] in front in spite of the [p]laintiff telling [Mortensen] of his shoulder problems subjected an ‘identifiable person to imminent harm’ “;  and the “plaintiff's claims against the [t]own of Farmington are not barred by governmental immunity because the town's own policy prevented its employee ․ from exercising discretion in his handcuffing of the plaintiff ․” In the alternative, the plaintiff argues that “the town is liable for discretionary acts of its employees that are not protected by [g]overnmental [i]mmunity.”

In the defendants' supplemental motion for summary judgment it is argued that the plaintiff's purported excessive force and deliberate indifference to medical treatment claims raised at oral argument fail because (1) the force used by Mortensen, if any, was reasonable;  and (2) the defendants are protected by qualified immunity.   In response, the plaintiff argues that Mortensen's refusal to cuff the plaintiff from the front was not reasonable, and that Mortensen's denial of medical treatment to the plaintiff was also unreasonable.

COUNT ONE

AArrest Without Probable Cause

The defendants argue that they are entitled to summary judgment with regard to the plaintiff's claim for false arrest because Mortensen had probable cause for the arrest.   The court agrees.

“The validity of a warrantless arrest hinges on the existence of probable cause.”  Washington v. Blackinore, 119 Conn.App. 218, 221, 986 A.2d 356 (2010), citing State v. Lamme, 216 Conn. 172, 178, 579 A.2d 484 (1990).   “The issue of whether an arresting officer had probable cause to arrest can be determined as a matter of law if the pertinent events and knowledge of the officers are not in dispute ․” Hunter v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 97 0344157 (June 4, 2004, Dewey, J.).   “Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.”  (Internal quotation marks omitted.)  State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991).  “It is a flexible common sense standard that does not require the police officer's belief to be correct or more likely true than false ․ Probable cause for an arrest is based on the objective facts available to the officer at the time of arrest, not on the officer's subjective state of mind.”  (Citation omitted;  internal quotation marks omitted.)  Washington v. Blackmore, supra, 119 Conn.App. 221.   As our Supreme Court noted, “[w]hile probable cause requires more than mere suspicion ․ the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances ․ The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.”  (Citations omitted;  internal quotation marks omitted.)  State v. Trine, 236 Conn. 216, 237, 673 A.2d 1098 (1996).

The documents submitted by the defendants, including the deposition of the plaintiff (Def.Ex. A);  the affidavit of Mortensen (Def.Ex. B);  and Mortensen's police report (Def.Ex. 2), establish the following undisputed facts.   On March 6, 2011, at approximately 2:00 a.m., the plaintiff attempted to drive a group of friends home from a bar after consuming at least two to three beers.  (Def. Ex. A, Cohen Depo. 22, 26.)   After stopping at a red light, “at least half of [the plaintiff's] vehicle was over the white line.”   (Id., 39.)   Thereafter, when the plaintiff made a subsequent left hand turn, he failed to use his turn signal.  (Id., 40.)   Mortensen observed the vehicle swerving within its own lane of travel.  (Def.Ex. B, ¶ 8.)   Mortensen then pulled the plaintiff over, had a discussion with him, and checked his eyes for nystagmus.  (Def. Ex. A, Cohen Depo. 33–34.)   Mortensen could smell the odor of alcohol on the plaintiff's breath.  (Def.Ex. B, ¶ 12.)   Thereafter, Mortensen asked the plaintiff to step out of the vehicle to perform a field sobriety test, which the plaintiff failed.  (Def. Ex. A, Cohen Depo. 34–35.)

Even after reading the evidence in the light most favorable to the plaintiff, the evidence demonstrates that Mortensen had personal knowledge sufficient to warrant a person of reasonable caution to conclude that there was probable cause for the plaintiff's arrest.   The plaintiff introduced no evidence to rebut this.   Accordingly, the court finds that probable cause existed as a matter of law and the motion for summary judgment is granted with respect to the false arrest claim.

B

Unlawful Search

The defendants argue that the plaintiff's claim for unlawful search of his vehicle fails as a matter of law.   Specifically the defendants argue that the present matter clearly falls into three of the recognized situations in which a warrantless search of a car is reasonable:  (1) the search was made incident to a lawful arrest;  (2) the search was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime;  and (3) the search was conducted pursuant to an inventory of the vehicle's contents.   The plaintiff failed to address the defendants' arguments in his brief in opposition.   The court agrees that Mortensen conducted a lawful search of the vehicle pursuant to a valid inventory following arrest.

“It is a basic principle of constitutional law that [t]he fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents.   A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions.”  (Internal quotation marks omitted.)  State v. Vallejo, 102 Conn.App. 628, 638, 926 A.2d 681 (2007).   “There are four recognized situations in which a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or state constitutions.   They are that the search was:  (1) made incident to a lawful arrest;  (2) conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime;  (3) based upon consent;  or (4) conducted pursuant to an inventory of the car's contents incident to impounding the car.”   Id., 638 n.6.

“An inventory search is a well-defined exception to the warrant requirement.”  (Internal quotation marks omitted.)  State v. Whealton, 108 Conn.App. 172, 179, 947 A.2d 965, cert. denied, 288 Conn. 909, 953 A.2d 655 (2008).  “United States v. Opperman, [428 U.S. 364, 366, 96 S.Ct. 3092 (1976) ], mandates that an inventory search be conducted using a standard inventory form pursuant to standard police procedures.   The reason for requiring such procedures is to avoid arbitrary determinations by police with respect to an inventory search.”  (Internal quotation marks omitted.)  State v. Nelson, 17 Conn.App. 556, 573, 555 A.2d 426 (1989).

In the present case, the defendants have submitted a copy of the general orders of the Farmington police department;  (Def.Ex. 1);  which states that it is the policy of the Farmington police department to inventory impounded vehicles.   Additionally, the affidavit of Mortensen states that, “Farmington Motor Sports responded to the scene and removed the Dodge van Stephen Cohen was operating.   Prior to its removal, all passengers were separated from the vehicle and I completed a motor vehicle inventory consistent with Farmington Police Department policy.”  (Def.Ex. B, ¶ 30.)   A copy of that inventory is also attached to the motion for summary judgment.  (Def.Ex. 2.) The plaintiff offers no evidence in response.   In light of the aforementioned evidence, the defendants have met their burden in establishing that they are entitled to judgment as matter of law under the inventory search exception to the warrant requirement, and that no questions of material fact remain regarding whether an inventory search was conducted using a standard inventory form pursuant to standard police procedures.   The motion for summary judgment is granted as to the unlawful search claim.

C

Rough Treatment

The defendants argue that they are entitled to summary judgment with regard to the plaintiff's claim of rough treatment because the claim is barred by qualified immunity.   The court disagrees and finds that the plaintiff's claim is not barred because issues of material fact exist concerning the imminent harm exception.

“When a municipal employee is sued, he or she may assert qualified immunity as a common-law defense.”  Spears v. Garcia, 263 Conn. 22, 37, 818 A.2d 37 (2003).  “Over the years ․ [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees ․ Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.”  (Citation omitted.)  Id., 36.  “A municipal employee's immunity for the performance of discretionary acts is, however, qualified by three recognized exceptions:  [ (1) ] where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ [ (2) ] where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and [ (3) ], where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.”   (Internal quotation marks omitted.)  Id.

The plaintiff argues that the identifiable person subject to imminent harm exception applies to the present case because Mortensen refused to comply with the plaintiff's request to be handcuffed in the front even after the plaintiff informed Mortensen of his shoulder problems.   Additionally, even though it is not briefed, the plaintiff's complaint, through its use of “wanton and malicious,” appears to be insinuating that the defendants' actions fall within the third exception to governmental immunity as well.

“[The imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state ․ Our courts have applied the exception when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ By its own terms, this test requires three things:  (1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ․ The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception.”  (Citations omitted;  internal quotation marks omitted.)  Merritt v. Bethel Police Dept., 120 Conn.App. 806, 812, 993 A.2d 1006 (2010).

“Use of excessive force by a police officer in a situation which subjected a plaintiff to harm which was significant, foreseeable, and of limited duration has been found to raise an issue for a jury in connection with the identifiable person/imminent harm exception.   See Balogh v. Shelton, Superior Court, judicial district of Ansonia/Milford, Docket No. CV 99 0067521S (March 18, 2002, Alander, J.) (31 Conn. L. Rptr. 566).   Likewise, in another case involving allegations of assault by a police officer, the court stated, ‘there is no reason that the person subject to imminent harm cannot be a person whom the officer is dealing with directly.’   Castorina v. Stewart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0324487 (June 3, 1998, Skolnick, J.) (22 Conn. L. Rptr. 1).”   Santana v. Rohan, Superior Court, judicial district of Hartford, Docket No. CV 04 0830569 (June 7, 2005, Shapiro, J.) (39 Conn. L. Rptr. 461, 464);  see also Roguz v. Walsh, United States District Court, Docket No. 09–1052 (D.Conn. December 5, 2012) (“[P]laintiff was a clearly identifiable individual to [the officer], and it is undisputed that [the officer] purposefully hit and swung his baton at plaintiff.   Plaintiff was put at risk of imminent harm from [the officer's] hits and baton swings ․ Based on the undisputed facts and the entirety of the record before the Court, [the officer] is not entitled, at the summary judgment stage, to governmental immunity for the claims of assault and battery or negligent infliction of emotional distress as a result of the exceptions to the immunity doctrine”) (collecting other cases).

In the present case, the plaintiff testified at his deposition that he told Mortensen that his shoulder would dislocate if his arm was placed behind his back and, accordingly, asked to be handcuffed in the front.  (Def.'s Ex. H, Cohen Depo. 49.)   The plaintiff further testified that Mortensen disregarded the request and proceeded to handcuff the plaintiff from behind thus dislocating his shoulder.  (See id.)   In Mortensen's affidavit, the officer admits that “Cohen complained ․ of shoulder problems” and that, in response, he eventually “used two sets of handcuffs to ease the strain on [Cohen's] shoulders.”  (Def.'s Ex. B, ¶ 28.)

The evidence before the court creates a genuine issue of material fact regarding whether the identifiable person subject to imminent harm exception applies.

In light of the above, the defendants' motion for summary judgment on the basis of qualified immunity is denied pursuant to the imminent harm exception.   Additionally, because summary judgment is denied, the court does not need to consider the plaintiff's other arguments against immunity, e.g., whether Mortensen's actions were ministerial, or whether his actions were wanton or malicious.

D

Improper Towing

Although the defendants move for summary judgment as to the entire complaint, their motion for summary judgment never addresses the plaintiff's allegation of improper towing.   Consequently, the court must deny the motion for summary judgment as to this cause of action.

E

Excessive Force

The defendants argue that any force used by Mortensen was reasonable as a matter of law.   The court disagrees.

“[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 ․ however, its 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;  emphasis omitted;  internal quotation marks omitted.)  Weyel v. Catania, 52 Conn.App. 292, 296–97, 728 A.2d 512, cert. denied, 248 Conn. 922 (1999).   The Fourth Amendment to the United States constitution is made applicable to the states through the Fourteenth Amendment.  State v. Vallejo, supra, 102 Conn.App. 638.

“Under [Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ], the reasonableness inquiry in an excessive force case is an objective one:  the question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”  (Internal quotation marks omitted.)  Ferraresso v. Granby, 646 F.Sup.2d 296, 306 (D.Conn.2009).   “While reasonableness is traditionally a question of fact for the jury, defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force[ ] was objectively reasonable under the circumstances.”  (Internal quotation marks omitted.)  Id. For example, “[in] evaluating the reasonableness of handcuffing, a[c]ourt is to consider evidence that:  (1) the handcuffs were unreasonably tight;  (2) the defendants ignored the [plaintiff's] pleas that the handcuffs were too tight;  and (3) the degree of injury to the wrists.”  (Internal quotation marks omitted.)  Id.

In the present case, the plaintiff testified that after he told Mortensen that his shoulder would dislocate if his arm was placed behind his back, Mortensen nevertheless proceeded to place the plaintiff's arm behind his back thereby causing the shoulder to dislocate.   Whether or not ignoring the plaintiff's plea was unreasonable under the circumstances is an issue of material fact for the fact-finder to decide.   Consequently, the defendants' motion for summary judgment as to excessive force is denied.

F

Denial of Medical Care

Next, the defendants argue that the record in the present case does not support a claim that Mortensen acted with deliberate indifference to a serious medical need.   The court disagrees.

Denying a plaintiff medical care at the time of his arrest must be evaluated under the Fourth Amendment standard.  Arum v. Miller, 331 F.Sup.2d 99, 111 (E.D.N.Y.2004);  see also Quint v. Dunaj, United States District Court, Docket No. 3:02 CV 2053 (D.Conn. January 20, 2006) (same).  “Under the Fourth Amendment standard, the [c]ourt needs only to decide, interpreting the evidence in the manner most favorable to [p]laintiff, whether the asserted denial of medical treatment was objectively unreasonable.   This objective standard requires the [c]ourt to focus[ ] on the circumstances confronting the police at the time of the arrest without regard to their underlying motives or attitude towards the suspect.”  Arum v. Miller, supra, 331 F.Sup.2d 111.   The Fourth Amendment to the United States constitution is made applicable to the states through the Fourteenth Amendment.  State v. Vallejo, supra, 102 Conn.App. 638.

Claims for the unconstitutional denial of medical care arising in the course of a pretrial arrest and detainment are evaluated under the Due Process Clause of the Fourteenth Amendment.   See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996);  see also Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009).   “There are two elements to a claim of deliberate indifference to a serious medical condition:  [The plaintiff] must show that she [or he] had a ‘serious medical condition’ and that it was met with ‘deliberate indifference.’   “ (Internal quotation marks omitted.)  Caiozzo v. Koreman, supra, 581 F.3d 72.

In the present case, the plaintiff testified that he told the officer that he “had problems with [his] shoulder”;  (Def.'s Ex. H, Cohen Depo. 43);  and that once he was handcuffed from behind that, “[his] shoulder ․ dislocated ․” (Id., 46.)   The plaintiff also testified that he “asked at least three times to go to the hospital” over the course of the arrest and subsequent processing.  (Id., 54.)

The evidence before the court raises a genuine issue of material fact with regard to whether Mortensen demonstrated a deliberate indifference to a serious medical condition.   Consequently, the defendants' motion for summary judgment is denied.

COUNT TWO

Because the court finds that Mortensen is not entitled to qualified immunity in light of the imminent harm exception, the town of Farmington will also be responsible for any possibly successful claims against Mortensen pursuant to General Statutes § 7–465.  Section 7–465 provides in relevant part:  “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, 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 physical damages to person ․ 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 ․”

The court now turns to any separate and direct claims against the town of Farmington.

A

Improper Training

The defendants move for summary judgment with regard to count two on the basis that “there exists no competent evidence in this case [that] the defendant officer was negligently supervised, instructed and/or trained.”   The plaintiff does not respond to this argument in his brief nor has he presented any evidence to raise a genuine issue of material fact with regard to the claim.

Courts in Connecticut consistently have held that hiring, supervising, training and firing police officers are discretionary duties protected by governmental immunity.   See, e.g. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179–80, 544 A.2d 1185 (1988) (“[T]he great weight of authority [is] that the operation of the police department is a discretionary governmental function”);  Doe v. Nunes, Superior Court, judicial district of New Britain, Docket No. 463832 (April 15, 1995, Handy, J.) (granting motion to strike complaint alleging negligent hiring, supervising and firing of officer because such actions are discretionary duties protected by governmental immunity).   Accordingly, the alleged acts and omissions alleged in the complaint involve the performance of the typical functions of a police officer as well as law enforcement training and supervision of officers.   These actions are inherently discretionary activities as a matter of law, to which governmental immunity applies.   As a result, the defendants' motion for summary judgment is granted as to any alleged failure to train.

B

Illegal Policy

Finally, the defendants move for summary judgment on the ground that there exists “no competent evidence that the [t]own has a policy regarding arrests for DUI placing an inordinate emphasis on making an arrest.”   The plaintiff alleges in his complaint that the town of Farmington “has a policy regarding [d]riving under the [i]nfluence arrests such that an inordinate emphasis is placed on making arrest, resulting in an unacceptable rate of false arrests.”

As an initial matter, the court notes that the plaintiff has inadequately briefed this issue.   See, e.g., Gorman v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV 08 5004455 (September 28, 2011, Cobb, J.) [52 Conn. L. Rptr. 654], citing Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned”).   Nevertheless, even if the court were to assume that such an arrest policy existed, it would be irrelevant in the present case because the court previously determined that there is no genuine issue of material fact that Mortensen had probable cause to arrest the defendant.   See, e.g., Beinhorn v. Saraceno, 23 Conn.App. 487, 490–91, 582 A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991) (lack of probable cause essential element in claim of false arrest).

Consequently, the defendants' motion for summary judgment is granted as to the illegal policy claim.

III

CONCLUSION

For the aforementioned reasons, the defendants' motion for summary judgment is denied with regard to the plaintiff's claims in count one sounding in:  (1) rough treatment/excessive force;  (2) deliberate indifference to medical treatment;  and (3) improper towing.   With regard to count two, the motion for summary judgment is denied as to the town of Farmington only insofar as the town may be liable for any successful claims against Mortensen.

The defendants' motion for summary judgment is granted with regard to the plaintiff's claims in count one sounding in:  (1) arrest without probable cause;  and (2) unlawful search.   With regard to count two, the defendants' motion for summary judgment is granted as to the claims against the town of:  (1) improper training;  and (2) an illegal DUI arrest policy.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. It is well established that “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   In the present case, the plaintiff's deposition testimony was not certified as it was not signed or dated by the notary public.   If uncertified deposition transcripts are submitted and there is no objection thereto, the court may, however, in its discretion, consider them.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Here, the plaintiff did not object to the inclusion of the deposition in support of the defendants' motion.   Accordingly, the court will consider the otherwise inadmissible portions of the deposition that are relevant in reaching its decision..  FN1. It is well established that “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   In the present case, the plaintiff's deposition testimony was not certified as it was not signed or dated by the notary public.   If uncertified deposition transcripts are submitted and there is no objection thereto, the court may, however, in its discretion, consider them.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Here, the plaintiff did not object to the inclusion of the deposition in support of the defendants' motion.   Accordingly, the court will consider the otherwise inadmissible portions of the deposition that are relevant in reaching its decision.

Wiese, Peter E., J.