Brenda Mazariegos et al. v. City of Stamford et al. (2013)

Memorandum of Decision on Defendant City of Stamford's Motion for Reconsideration (No. 145)

Reference is made to this court's October 17, 2013 Memorandum of Decision (No. 133.86) (“memorandum of decision”) on Defendant City of Stamford's Motion for Summary Judgment on the Eighteenth, Thirty–Ninth, Fifty–Seventh, Nineteenth, Fortieth, Fifty–Eighth, Twenty–First, and Twenty–Second Counts of the Second Revised Compliant.   In that Memorandum of Decision I granted the City of Stamford's Motion for Summary Judgment against the three named plaintiffs on Counts 18, 20, 22, 39, and 57 of the Second Revised Complaint, and denied the Motion for Summary Judgment as to Counts 19, 40, and 58.  (No ruling was entered as to Count 21, since it had been stricken by Judge Tobin on March 7, 2013 [55 Conn. L. Rptr. 775].)   On November 6, 2013 the City moved for reconsideration of the denial of summary judgment on Counts 19, 40, and 58 which are the three violation of civil rights counts brought by the named plaintiffs Brenda Mazariegos, Sandra Solis, and Nelson Solis under U.S.C. §§ 1983 and 1988, on the grounds “that the court's decision is inconsistent with the case law regarding the requirements a Monell ¹ claim asserting a violation of a policy or custom.”   On November 26, 2013, during jury selection before another judge, I entered a verbal order permitting reargument, which was confirmed in writing (No. 145.87) and reargument took place that afternoon.   The court has now reconsidered its denial of summary judgment on the three § 1983 claims against the City, and does not vacate or modify those decisions in any respect, and those decisions are reconfirmed as originally entered on October 17, 2013.

Discussion

A motion for reconsideration is governed by Practice Book § 11–12, which is entitled “Motion to Reargue.”   See, e.g. Weinstein v. Weinstein, 275 Conn. 671, 699–700, n.21. As acknowledged by the Assistant Corporation Counsel in the City's Memorandum in Support of its Motion for Reconsideration, at page 2:  “The granting of a motion for reconsideration ․ is within the sound discretion of the court ․ A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.”   (Internal quotation marks omitted.)  Magiente v. Miemiec, 98 Conn.App. 567, 575–77 (2006).  “The purpose of reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect and which has been overlooked or that there has been a misapprehension of facts ․ [A] motion to reargue not to be used as an opportunity to have a second bite at the apple or to present additional cases or briefs which could have been presented at the time of original argument.”   (Citations omitted;  internal quotation marks omitted.)   Opoku v. Grant, 63 Conn. Pp.686, 692–93, 778 A.2d 981 (2001).

To some extent this motion for consideration runs contrary to those rules.   Counsel at oral argument stressed that the main purpose of seeking reargument was to emphasize to the court, first, that the Supreme Court in Monell held that “a municipality cannot be held liable [under § 1983] solely because it employs a tortfeasor, or, in other words, a municipality cannot be held liable under § 1983 on a respondent superior theory.”   The second emphasis on reargument was that, faced with the previous complaints against Officer Zach in 2007 and the summary of his previous abusive misconduct in a memo from his supervisor Sergeant Chris Weed to Lieutenant Dohmann, the court might have been under a misapprehension that the City took no action whatsoever against Officer Zach, whereas the City did take action in 2007 when at the suggestion of the Internal Affairs Division Officer Zach was reassigned to the front desk area of police headquarters for six weeks and ordered to engage in a number of “interactive conversations” with the Chief of Police.   Counsel argued the significance of that punishment in that, having taken “some action” in response to the Weed memo, the City could not be guilty of the “deliberate indifference” required under Monell and its progeny, and that the effectiveness or propriety of the action taken was not relevant provided only that the City took some action.²  The Third point of emphasis was that the record showed no awareness by a policy-making official of the City or the Police Department of Officer Zach's complaint history of abusive conduct toward persons he encountered on patrol, especially women.   All three of these concerns were misplaced.   The court was very much aware of the holding of the U.S. Supreme Court in Monell, and decisions of the various U.S. Courts of Appeal applying and interpreting the rule of Monell.  Monell and at least eight U.S. Court of Appeals decisions are cited in the court's memorandum of decision.   The argument about taking “some action” being all that is required to avoid “deliberate indifference” is simply wrong on a factual level and as a legal proposition.   The court was very much aware of the punishment meted out to Officer Zach in 2007 and recited it in the memorandum of decision.³  In any event, the taking of just “some action” or “any” action is not as a matter of law sufficient to avoid deliberate indifference.   As the court said in the memorandum of decision, quoting from Cash v. County of Erie, 654 F.3d 324, 334 (2 Cir.2011):  “Thus, deliberate indifference may be inferred where the need for more or better supervision was obvious, but the policymaker failed to make meaningful efforts to address the risk of harm to the plaintiffs.”   (Emphasis added.)   The third concern of reargument was that the court may have failed to take account of the City's position that Officer Zach's history of abusive conduct never came to the attention of a policy-making official.   But, as the record shows, and the court noted, Chief of Police Nivakoff, obviously a policy-making official of the Stamford Police Department, is the official who assigned the penalty of six weeks at the Front Desk and “interactive conversations” with the Chief.   As Chief Nivaokoff later said to Officer Zach:  “I put you there based on a letter that was written by Sgt. Weed ․” (Transcript of March 16, 2010 Pro Forma Hearing, Ponvert Affidavit, Ex. L, seventh page.)

Other than those three “concerns” the reargument consisted of counsel's “second bite at the apple” challenge to the court's conclusion that there was enough of an evidentiary predicate as to the issue whether or not City's remedial action following the 2007 incidents was sufficient to avoid deliberate indifference, and whether or not deliberate indifference can be inferred in this case from an obvious need for more or better supervision of Officer Zach. The court remains convinced that the October 17, 2013 decision was correct, and that the jury should decide those issues.   Counsel points out once again that the earlier incidents did not involve personal violence, and the punishment was appropriate and effective, given that there were no repeat incidents or complaints for a period of about two years.   But the earlier incidents did involve abusive anger—rage—directed against citizens whom a police officer should serve with respect.   And they were not entirely limited to verbal misconduct.   In the case of one complainant the record reflects that he physically entered her vehicle from the passenger side and leaned across the driver's eight-year-old son to scream obscenities at her in a loud voice before slamming the car door as he left, causing her son to cry and later suffer emotional distress.   A jury could reasonably find that his conduct called for more aggressive remedial action than an assignment to the front desk for six weeks where he would have been in full view and almost certainly under constant video surveillance, and therefore on his best behavior.   Counsel also argues that the two-year period of no complaints points to the effectiveness of the remedial action,⁴ but the court remains convinced that there is a genuine issue of fact as to that point.   Counsel has directed the court to two additional federal decisions decided in 1986 and 1995, and therefore available at the time of initial briefing and argument on the Motion for Summary Judgment.   The court has nonetheless reviewed the cases:  Purcell v. Coughlin, 790 F.2d 263 (2 Cir.1986) and Jermosen v. Coughlin, 878 F.Sup. 444 (Northern District of New York, March 14, 1995).   Both are Section 1983 cases brought by prison inmates.   Mr. Purcell had alleged, inter-alia, that prison officials had interfered with his incoming and outgoing mail.   The District Court summarily dismissed all his complaints.   The Second Circuit reversed as to the mail interference count based on Washington v. James, 782 F.2d 1134 (2d Cir1986) saying, “In Washington, we held that even two alleged instances of mail interference were sufficient to suggest a continuing activity ․” Id., 265.   Here, there was evidence of three, and even a fourth [withdrawn] complaint of abuse by Officer Zach in 2007.   Since that would be suggestive of a continuing activity, a reasonable inference could be drawn that six weeks at the front desk was not sufficient remediation to halt a pattern of continuing activity.  Jermosen is cited for the proposition that:  “Moreover, verbal threats will not violate the Fourteenth Amendment unless accompanied by physical force or the present ability to effectuate the threat ․ Plaintiff has made no showing of uninvited physical contact ․” (Citations omitted.)  Id., 449.   But, although there is no record of any complaint against Officer Zach involving physical assault or violence to the person, it was undisputed that there was uninvited physical contact in connection with the fourth [withdrawn] complaint in 2007 (Ponvert Affidavit, Ex. E),and, as previously mentioned, based on the evidence in the record there is a basis for reasonable inference that there was uninvited physical contact in the “leaning across the eight-year-old child” incident.   These newly cited cases do not amount to “Some decision or some principle of law which would have a controlling effect and which has been overlooked.”  Opoku v. Grant, supra.

The more appropriate legal precedent continues to be Vann v. New York, 72 F.3d, supra, discussed in the court's memorandum of decision.  “A Section 1983 plaintiff injured by a police office may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference.”   (Emphasis added;  citation omitted.)  73 F.3d at 1049.   The similarities between the misconduct record of Officer Morrison (in Vann ) and Officer Zach (in this case) giving rise to a permissible inference of reckless indifference are striking:

On April 30, 1984[Dr.]   Knout resumed his interview of Morrison.   He found Morrison to be a very rigid, defensive somewhat passive-aggressive individual who had a great deal of difficulty adequately handling and expressing his feelings of anger and resentment, and, as a result, his behavior could, on occasion, lead to the escalation of initially minor situations.

72 F.3d at 1043.

In both cases, Officer Zach's border line over aggressiveness and inability to deescalate the situations as well as his demeanor during the investigation has raised my level of concern to where I no longer feel verbal counseling him will be adequate.   His latest choices to insistently pursue even the slightest transgression with almost antagonistic zealous (sic.)culminating in arrests for interfering with police leaves me to question not only his judgment but his motivation.

Sgt. Weed Memo, Ponvert Affidavit, Ex. D.

Conclusion and Order

For the foregoing reasons the Defendant City of Stamford's Motion for Reconsideration has been granted, but the relief requested is denied.

So Ordered.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Monell v. New York City Dept. of Social Services, 463 U.S. 658, 664, 98 S.Ct 2018 (1978), which is the seminal case on the elements of a Section 1983 civil rights action against a municipality..  FN1. Monell v. New York City Dept. of Social Services, 463 U.S. 658, 664, 98 S.Ct 2018 (1978), which is the seminal case on the elements of a Section 1983 civil rights action against a municipality.

FN2. No transcript of the November 26 oral reargument has been made available to the court.   This recitation of the City's position is based on the court's written notes and listening to the official digital recording of the entire argument..  FN2. No transcript of the November 26 oral reargument has been made available to the court.   This recitation of the City's position is based on the court's written notes and listening to the official digital recording of the entire argument.

FN3. The court did state at page 19 of the memorandum of decision that “There is no evidence that Lt. Dohmann [the named recipient of the Weed memo] responded in any way to Sgt. Weed's memo.”   That being so, however, the court is and was aware of the punishment imposed on Officer Zach by the Internal Affairs Division and the Chief of Police.   There was no misapprehension that no action had been taken in response to the Weed memo..  FN3. The court did state at page 19 of the memorandum of decision that “There is no evidence that Lt. Dohmann [the named recipient of the Weed memo] responded in any way to Sgt. Weed's memo.”   That being so, however, the court is and was aware of the punishment imposed on Officer Zach by the Internal Affairs Division and the Chief of Police.   There was no misapprehension that no action had been taken in response to the Weed memo.

FN4. A similar argument was made but was not found to be determinitive in Vann v. City of New York, 72 F.3d 1040, 1044 (2 Cir.1995).  (One-year post-remediation period without incidents.).  FN4. A similar argument was made but was not found to be determinitive in Vann v. City of New York, 72 F.3d 1040, 1044 (2 Cir.1995).  (One-year post-remediation period without incidents.)

Jennings, Alfred J., J.T.R.