Opinion
Case No. 3:03cv2147 (SRU)(WIG) PRISONER.
July 25, 2006.
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Louis Reed, Jr. is currently incarcerated in a Florida state correctional facility. He has brought this civil rights action pro se, pursuant to 28 U.S.C. § 1915, challenging his arrest by a Hartford, Connecticut, police officer. Reed has filed two motions for summary judgment, a motion for default judgment and a motion seeking a jury trial. In response, defendant City of Hartford has filed a motion to dismiss or for summary judgment. For the reasons that follow, the City of Hartford's motion is granted and the plaintiff's motions are denied.
I. Standard of Review
The party moving for summary judgment carries the burden to establish that there are no genuine issues of material fact in dispute and that it is entitled to a judgment as a matter of law.See Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). A court should grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact. . . .'" Miner v. Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993) (citation omitted). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (quotingAnderson, 477 U.S. at 248), cert. denied, 506 U.S. 965 (1992). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When a motion for summary judgment is supported by documentary evidence and sworn affidavits, the nonmoving party must present "significant probative evidence to create a genuine issue of material fact." Soto v. Meachum, 1991 WL 218481, at *6 (D. Conn. Aug. 28, 1991). A party may not rely "on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987).
The court "resolve[s] all ambiguities and draw[s] all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2004). Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991). See also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). A party may not create a genuine issue of material fact by presenting contradictory or unsupported statements. See Securities Exchange Comm'n v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). Nor may he rest on the "mere allegations or denials" contained in his pleadings. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). See also Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (holding that party may not rely on conclusory statements or an argument that the affidavits in support of the motion for summary judgment are not credible). A self-serving affidavit that reiterates the conclusory allegations of the complaint in affidavit form is insufficient to preclude summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990). In addition, "`[t]he mere of existence of a scintilla of evidence in support of the [plaintiffs'] position will be insufficient; there must be evidence on which the jury could reasonably find for the [plaintiffs].'" Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting Anderson, 477 U.S. at 252).
Where one party is proceeding pro se, the court reads the pro se party's papers liberally and interprets them to raise the strongest arguments suggested therein. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Despite such liberal interpretation, however, a "bald assertion," unsupported by evidence, cannot overcome a properly supported motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
When cross-motions for summary judgment are presented to the court, summary judgment should not be granted "unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely in dispute." Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975).
The facts are taken from the Local Rule 56(a)1 Statement [doc. #41] filed by defendant City of Hartford with attached exhibits. On February 28, 2006, the court issued a notice [doc. #44] informing Reed of his obligation to respond to the motion for summary judgment and of the contents of a proper response. Reed has not filed a Local Rule 56(a)1 Statement in support of either of his motions for summary judgment and has not filed a Local Rule 56(a)2 Statement in response to defendant's motion. Accordingly, defendant City of Hartford's facts are deemed admitted. See D. Conn. L. Civ. R. 56(a)1 ("All material facts set forth in said statement will be deemed admitted unless controverted by the statement required to be served by the opposing party in accordance with Rule 56(a)2.").
On January 27, 2003, Hartford Police Officer Michael Allen responded to a call from Reed's wife. She informed Officer Allen that she had been granted a protective order by the court, but that Reed had taken her copy of the order. Reed's wife told Officer Allen that Reed had been shouting at her and demanding money. She stated that she was afraid of what would happen when Reed returned from work and asked Officer Allen to keep Reed from returning home. She also stated that Reed had been arrested in December 2002 for disorderly conduct, unlawful restraint and assault.
Officer Allen confirmed with the Hartford Police Department that an active protective order was in force against Reed. He then went to Reed's place of employment. He told Reed that he was investigating a complaint of harassment and asked Reed for his copy of the protective order. Reed became defensive and stated that he only was asking his wife for money. Officer Allen told Reed that he was being arrested for violating the protective order.
Reed ran down the hallway and out an emergency exit to the parking lot. Officer Allen called for police assistance but did not receive a response. He then chased Reed and ordered him to stop. Reed turned and assumed a boxing stance with clenched fists. Officer Allen struck Reed in the right forearm with his baton. He struck Reed a second time to block Reed's left arm. The second blow struck Reed on the top left portion of his head. Reed then dropped to the ground and agreed to stop fighting. He complied with Officer Allen's order to place his hands behind his back. Reed was then handcuffed and placed in Officer Allen's patrol car. Officer Allen bandaged Reed's head and brought him to St. Francis Hospital for treatment.
Reed complained to medical personnel of a laceration to his scalp where he had been struck by the baton, visual changes and confusion. Reed did not complain of back pain. After the laceration was cleaned and bandaged, Reed was discharged in a wheelchair to the custody of the police. At that time, Reed was not cooperative. He was yelling and screaming and trying to fall out of the wheelchair. He slid forward in the wheelchair and dropped from the chair to the floor holding his head so that the head wound would hit the ground. That exacerbated the head injury and required treatment with staples. A CT scan showed no abnormalities.
After discharge, Reed was taken to the Hartford Police Department and processed on charges of violation of a protective order, attempt to assault a police officer and interfering with a police officer. On June 23, 2003, Reed pled guilty on a substitute information to the charge of violation of a protective order. He was sentenced to a one-year term of imprisonment.
III. Discussion
The remaining defendants are the City of Hartford and Police Officer Drew, who Reed identified as Officer Drew Johnson on the service papers. The City of Hartford was served and has appeared. The U.S. Marshal was unable to effect service on defendant Drew. In its motion, the City of Hartford has presented evidence that no police officer named Drew or Drew Johnson has ever worked for the Hartford Police Department.
A. Reed's Motions for Summary Judgment [docs. ##23, 48] and Judgment [doc. #33]
Reed has filed two motions for summary judgment. Rule 56(a)1, D. Conn. Loc. Civ. R., provides: "There shall be annexed to a motion for summary judgment a document entitled `Local Rule 56(a)1 Statement,' which sets forth in separately numbered paragraphs a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried." Reed has not filed a Local Rule 56(a)1 Statement with either motion. This is sufficient ground to deny Reed's summary judgment motions [docs. ##23, 48].
More significantly, Reed has not presented evidence from which a reasonable jury could find in his favor on a claim against any named defendant. For the reasons discussed below, Reed cannot set forth a claim against the City of Hartford, and Reed now acknowledges that the police officer who arrested him has not been named as a defendant in this case. The evidence that Reed does present, namely that he was arrested and suffered a head injury during the arrest, is insufficient to sustain a judgment against the named individual defendant, who was not the arresting officer. Accordingly, both of Reed's motions for summary judgment [docs. ## 23, 48] are denied.
In the second of his summary judgment motions, Reed requests a firm date for a jury trial. Because I have determined in this ruling that the City of Hartford's motion for summary judgment should be granted and all other claims dismissed, the request for jury trial is denied.
Reed also has filed a motion for judgment in which he asks the court to enter judgment in his favor in the amount of $8,000,000.00 because the remaining defendants did not timely respond to his first motion for summary judgment or file their own motion for summary judgment. Although not captioned as such, Reed seeks entry of a default judgment. Because the court never entered a default against the remaining defendants, the motion is premature. Reed's motion for judgment [doc. #33] is denied.
B. City of Hartford's Motion to Dismiss or for Summary Judgment [doc. #42]
I am treating the City of Hartford's motion as a motion for summary judgment and the clerk has notified Reed of his obligations when responding to a motion for summary judgment.
The City of Hartford argues that judgment should enter in its favor because Reed fails to allege any actions taken by the City of Hartford and, even if the court were to deem the allegations against the Hartford Police Department to be against the city, Reed fails to state a claim for municipal liability.
In Monell v. Department of Social Services, 436 U.S. 658, 691 (1978), the Supreme Court set forth the test for municipal liability. To establish municipal liability for the allegedly unconstitutional actions of a municipal employee, Reed must "plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A municipality cannot be held liable under 42 U.S.C. § 1983 solely on a theory of respondeat superior.See 436 U.S. at 694-95. Reed must demonstrate "a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Reed has alleged no facts to suggest the existence of a municipal policy or custom in this case. The incident he describes appears to be an isolated occurrence. See Stengel v. City of Hartford, 652 F. Supp. 572, 574 (D. Conn. 1987) (noting that a claim of municipal policy or custom requires allegations consisting of more than a single isolated incident). Because he has not alleged facts suggesting that this practice occurred at other times as well, Reed fails to state a claim against the City of Hartford.
Reed also names defendant Drew in his official capacity. Any claim against a municipal official or employee in his official capacity is considered to be a claim against the municipality.See Hafer v. Melo, 502 U.S. 21, 25 (1991). Because Reed fails to state a claim against the City of Hartford, he also fails to state a claim against defendant Drew in his official capacity. The City of Hartford's motion for summary judgment is granted with respect to all claims against the City and any police officer in his official capacity.
C. Claims Against Defendant Police Officer Drew
Reed alleges that Police Officer Drew used excessive force in effecting the arrest. Reed later completed service forms for an Officer Drew Johnson. Defendant City of Hartford has provided the affidavit of Colleen Kenton, the Personnel Manager for the Hartford Police Department. Ms. Kenton states that personnel records reveal that no person with the last name Drew or named Drew Johnson ever worked for the Hartford Police Department. The City of Hartford also has provided copies of arrest records and police reports indicating that the arresting officer was Michael Allen. In his second motion for summary judgment, Reed acknowledges that he was arrested by Officer Allen.
The Kenton affidavit does not dispel the possibility that someone named Andrew Johnson worked as a Hartford police officer. For the reasons stated below, however, that possibility is immaterial.
Reed objects to the affidavits and documents as inadmissible hearsay. The affidavits establish that Susan Comstock and Colleen Kenton are employed by the Hartford Police Department as the Records Manager and the Personnel Manager, respectively. They are the keepers of the business records referenced in their affidavits. The statements of Ms. Kenton are admissible as an exception to the hearsay rule for the absence of an entry in records kept in the ordinary course of business and the statements of Ms. Comstock and the documents attached to her affidavit are admissible as an exception to the hearsay rule for records of regularly conducted activity. See Fed.R.Evid. 803(6) (7). Accordingly, Reed's objections to consideration of the affidavits and documents are overruled.
Reed has presented no evidence indicating that Police Officer Drew exists and, if he did, that he was the police officer who arrested Reed on January 27, 2003. Accordingly, all claims against defendant Drew are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as lacking an arguable factual basis.
Although Reed identified the police officer as Officer Drew a/k/a John Doe, that does not preserve his claims. Rule 4(m), Fed.R.Civ.P., requires that service be effected within 120 days after the filing of the complaint. The rule also provides, however, that if service is not effected within that time, the court may dismiss the claims or order that service be effected within a specified time. Clearly, service on defendant Officer Drew a/k/a John Doe was not effected within 120 days. Further, because Reed never properly identified that defendant, an order that service now be effected would be futile.
Naming another defendant in place of Officer Drew would necessitate that Reed amend his complaint. The incident underlying the complaint occurred on January 27, 2003, about 3½ years ago. Because the three-year limitations period has passed, Reed would be able to pursue claims against the newly identified defendant only if the amended complaint would relate back to the date of the original complaint. See Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994) (holding that, in Connecticut, the general three-year personal injury statute of limitations set forth in Connecticut General Statutes § 52-577 is the appropriate limitations period for civil rights actions asserted under 42 U.S.C. § 1983); James W. Moore, MOORE'S FEDERAL PRACTICE § 15.19(3)(a) at 15-84 (3d ed. 1997) ("Rule 15 is the only vehicle available for a plaintiff to amend the complaint to change or add a defendant after the statute of limitation has run.").
Pursuant to Rule 15(c), an amendment in a pleading relates back to the date of the original pleading where "the amendment changes the party or naming of the party against whom a claim is asserted" and
within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Fed.R.Civ.P. 15(c)(3). "Mistake" is not restricted to cases of misnomer. The court should permit "an amendment to relate back to add a defendant that was not named at the outset, but was added later when plaintiff realized that the defendant should have been named. . . ." MOORE'S FEDERAL PRACTICE § 15.19(3)(d) at 15-90. In a motion to amend, plaintiff must allege a reason for the mistake in omitting the proposed additional defendant from the original pleading.
Here, the only reason Reed could offer for failing to identify properly defendant Officer Drew a/k/a John Doe, is that he was unaware of his identity. Lack of knowledge, however, is not a mistake for which an amended pleading is allowed to relate back to the date of the original pleading. See Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 469-70 (2d Cir. 1995),op'n mod'd and aff'd, 74 F.3d 1366, 1367 (2d Cir. 1996) (Rule 15(c) does not permit an amendment to relate back where new defendants were not added to the original complaint because the plaintiff did not know their identities; lack of knowledge cannot be characterized as mistake).
Thus, even if Reed were to amend his complaint to add Officer Allen as a defendant, his claim against Officer Allen would be time-barred. Because Reed has not properly named any individual police officers, the court need not reach the merits of his claims of false arrest and use of excessive force.
IV. Conclusion
Reed's Motion for Summary Judgment [ doc. #23], Motion for Judgment [ doc. #33] and Motion for Summary Judgment and an Order to Proceed to a Firm Jury Trial [ doc. #48] are DENIED. Defendant City of Hartford's Motion to Dismiss and/or for Summary Judgment [ doc. #42], which the court has construed as a motion for summary judgment, is GRANTED. All claims against defendant Police Officer Drew are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The Clerk is directed to enter judgment and close this case.
SO ORDERED