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Case 3:08-cv-01156-DJS Document 35 Filed 06/04/13 Page 1 of 14



UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT



FERNANDO PAIS,


Plaintiff,


v.

CITY OF WATERBURY, TIMOTHY
JACKSON, and MILFORD HAYES,


Defendants.

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No. 3:08-cv-01156 (DJS)

MEMORANDUM OF DECISION AND ORDER

The plaintiff, Fernando Pais, brings this action against

the defendants — the City of Waterbury, Timothy Jackson and

Milford Hayes — alleging violations of the Fourth and Fourteenth

Amendments to the United States Constitution, of the Connecticut

Constitution, and of Connecticut common law. Jurisdiction

exists under 28 U.S.C. §§1331 and 1367(a). Now at bar is the

defendants’ Motion for Partial Summary Judgment. For the

following reasons, the Motion (doc. #33) is granted in part and

denied in part.

I.

BACKGROUND1

Fernando Pais is an individual residing in Waterbury,

Connecticut. Timothy Jackson and Milford Hayes are detectives

of the Waterbury Police Department. Mr. Pais brings this action


1

Unless otherwise indicated, the following is drawn from filings related
to the motion at bar.

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against Detectives Jackson and Hayes in their individual

capacities only.

Until he was laid off on November 14, 2007, Mr. Pais worked

as a laborer for NJR Construction Company.

On November 30, 2007 — sixteen days after Mr. Pais’

employment was terminated — NJR Construction reported that one

of its trucks was stolen. Four days later, on December 4, 2007,

Officer Daniel Stanton of the Waterbury Police Department found

the missing truck on Griggs Street in Waterbury, Connecticut.

Early the next morning, on December 5, 2007, Nick Mancini —

the owner of NJR Construction — contacted Detective Jackson

about the recovered truck. At that time, Mr. Mancini and

Detective Jackson were already personally acquainted.

Mr. Mancini explained to Detective Jackson that the truck,

at the time of its disappearance, contained $30,000.00 worth of

unspecified tools, and that these tools were missing from the

truck after its recovery. Mr. Mancini further explained that he

suspected Mr. Pais of having stolen the truck and, by

implication, the missing tools.

At approximately 9:00 a.m. that day, Detective Jackson,

accompanied by Detective Hayes, proceeded to Mr. Pais’

residence. There, without specifying the reason for their

visit, they asked Mr. Pais to voluntarily accompany them to the

Waterbury Police Department for questioning. Mr. Pais agreed.

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Upon arrival, the three men proceeded to the Detective

Bureau where Detective Jackson directed Mr. Pais to an interview

room. Detective Jackson then entered that interview room,

closed the door, and engaged Mr. Pais in discussion. Detective

Hayes, in contrast, did not enter the interview room. Rather,

he proceeded to his desk at the far end of the adjacent room and

turned his attention to other matters.

Shortly thereafter, at approximately 9:50 a.m., Detective

Jackson struck Mr. Pais in the face, causing the latter to

suffer pain and significant bleeding from his nose. Detective

Jackson and Mr. Pais offer differing accounts of their

interaction immediately preceding this incident.

After being struck, Mr. Pais was escorted to a nearby

washroom by Detectives Jackson, Hayes, and an unidentified third

Detective. There, Mr. Pais was instructed to remove his blood-

stained clothing and to wash away the blood having accumulated

on his face, chest, and hands. Mr. Pais requested medical

attention to address his injury, but none was provided.

Mr. Pais was then placed in a holding cell for

approximately six hours. Throughout this period, he continued

to bleed and to request medical attention. His requests were

disregarded. Ultimately, at 4:06 p.m., Mr. Pais was arrested by

Detective Jackson and charged with disorderly conduct and

interfering with an officer. Mr. Pais subsequently brought this

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action.

Mr. Pais’ complaint focuses on Detective Jackson’s physical

contact with him in the interview room and on his resulting

injury, on his subsequent detention and denial of medical care,

and on his arrest. Specifically, Mr. Pais alleges that

Detective Jackson’s physical contact with him in the interview

room constitutes an unreasonable use of force in violation of

the Fourth Amendment to the U.S. Constitution and of the

Connecticut Constitution (included in the First and Third Causes

of Action), and constitutes the common law torts of assault and

battery (included in the Second Cause of Action). Additionally,

he claims that the defendant Hayes, who could have interceded,

failed to do so despite having a duty to do so (included in the

First Cause of Action).

Mr. Pais also alleges that his subsequent prolonged

detention and denial of medical care violated his rights under

the U.S. Constitution and the Connecticut Constitution (included

in the First and Third Causes of Action). He further alleges

that his arrest and prosecution violated his rights under the

U.S. Constitution and Connecticut law. (included in the First,

Second, and Third Causes of Action). He also generally alleges

that Detectives Jackson and Hayes engaged in extreme and

outrageous conduct for the purpose of inflicting emotional

distress upon him in violation of Connecticut common law

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(included in the Second Cause of Action) and conspired with each

other to deprive him of his constitutional rights (included in

the First Cause of Action).

Mr. Pais alleges that the City of Waterbury developed and

maintained policies or customs resulting in the violation of his

constitutional rights (Fourth Cause of Action). Finally, he

alleges that the City is statutorily obliged to indemnify

Detectives Jackson and Hayes for any liability arising from

their conduct (Fifth Cause of Action). Detectives Jackson and

Hayes and the City now move for summary judgment as to some of

these claims.2

II. GOVERNING STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides

that “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Thus, on a motion for summary judgment,

the Court must “determine whether, as to any material issue, a

genuine factual dispute exists.” Kaytor v. Electric Boat Corp.,

609 F.3d 537, 545 (2d Cir. 2010); Anderson v. Liberty Lobby,


2

The motion at bar offers no challenge to the claims against Detective
Jackson related to his physical contact with Mr. Pais in the interview
room, or to the claims against Detectives Jackson and Hayes related to
their subsequent denial of Mr. Pais’ requests for medical attention.
(Doc. #33, p. 1, n.1). The motion also does not address the plaintiff’s
claim that the defendants inflicted emotional distress upon Mr. Pais in
violation of Connecticut common law.

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Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it

“might affect the outcome of the suit under the governing law,”

and a dispute as to a material fact is “genuine” if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Liberty Lobby, 477 U.S. at 248;

Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712,

720 (2d Cir. 2010). The Court must also determine whether the

undisputed material facts, if any, entitle the movant to

judgment as a matter of law under the controlling substantive

standards. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); Kaytor, 609 F.3d at 545.

In making these determinations, “the court should review

all of the evidence in the record.” Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 150 (2000); Kaytor, 609

F.3d at 545. In so doing, “the court must draw all reasonable

inferences in favor of the nonmoving party, and . . . may not

make credibility determinations[,] weigh the evidence,” or

otherwise “resolve disputed questions of fact.” Reeves, 530

U.S. at 150; Kaytor, 609 F.3d at 545.

III. ANALYSIS

A.

Abandoned Claims

“[G]rounds alleged in the [plaintiff’s] complaint but not

relied upon in summary judgment are deemed to be abandoned.”

Ferraresso v. Town of Granby, 646 F. Supp. 2d 296, 305 (D. Conn.

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2009); see also Garbinski v. Nationwide Mutual Insurance Co.,

Civil Action No. 3:10cv1191 (VLB), 2012 U.S. Dist. LEXIS 102707,

at *46 (D. Conn. July 24, 2012)(where a plaintiff’s response to

a summary judgment motion does not oppose arguments addressing

certain of the plaintiff’s claims, the “court may deem the

claims abandoned and grant summary judgment”).



In his response to the defendants’ motion for partial

summary judgment, Pais expressly states that “[t]he plaintiff

does not contest defendants’ motion with respect to the

[following] claim[s:] . . . the claim against the City of

Waterbury[,] . . . the claim of false arrest, malicious

prosecution and false imprisonment[,] . . . his Fifth Amendment

claim[, and] . . . the claim of unreasonable force or assault

and battery against defendant Hayes.” (Doc. # 34, pp. 1-2). The

plaintiff also did not oppose the defendants’ argument regarding

statutory indemnification pursuant to Connecticut General

Statutes §7-465 and §7-101a.3 The Court deems these claims

abandoned and grants the defendants’ motion with respect to the

claim against the City of Waterbury (Fourth Cause of Action),

the claims of false arrest, malicious prosecution and false


3 The Court notes that “Conn. Gen. Stat. §7-101a does not provide a direct
cause of action against a municipality. Moreover, Conn. Gen. Stat. §7-465
requires an allegation that the employee’s conduct was not wanton or
willful.” Karbowicz v. Borough of Naugatuck, 921 F. Supp. 77, 78 (D. Conn.
1995)(citations omitted). Here, the plaintiff has alleged that “Defendants
Jackson and Hayes acted intentionally, wantonly, and/or unlawfully . . . .”
(Doc. # 1, p. 5, ¶26).

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imprisonment (included in the Second and Third Causes of

Action), the claim of unreasonable force or assault and battery

against the defendant Hayes (included in the First, Second, and

Third Causes of Action), the claim seeking statutory

indemnification pursuant to General Statutes §7-465 and §7-101a

(Fifth Cause of Action), and the Fifth Amendment claim.4

B.

Failure to Intercede

Detective Hayes seeks summary judgment with respect to the

allegation that he personally failed to intercede on behalf of

Mr. Pais as to Detective Jackson’s excessive use of force. In

response, Mr. Pais confines his failure to intervene claims to

the constitutional violations arising from his “subsequent

detention, denial of medical treatment, [and] denial of access

to an attorney[.]” (Doc. #34-3, p. 5). Mr. Pais concedes,

however, that Detective Hayes “was not in the room when the

assault happened,” and that he “may not have been able to

intervene in the initial attack[.]” (Id. at pp. 5, 8).

Accordingly, the motion at bar, to the extent it seeks summary

judgment with respect to the allegation that Detective Hayes

personally failed to intercede on behalf of Mr. Pais as to

Detective Jackson’s excessive use of force, is granted.




4 Although the plaintiff’s complaint does not expressly raise a Fifth Amendment
claim, the defendants address a Fifth Amendment claim in their motion for
summary judgment based on a factual allegation in the complaint.

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C.

Conspiracy

Detectives Jackson and Hayes seek summary judgment with

respect to the allegation that they conspired to violate Mr.

Pais’ constitutional rights. Although the plaintiff’s complaint

does not specify a basis for the claim of a conspiracy, for

purposes of the summary judgment motion both the defendants and

the plaintiff address the conspiracy claim in terms of 42 U.S.C.

§ 1985(3)5(“§ 1985(3)”) (Doc. # 33-3, p. 22; Doc. # 34-3, p. 8).

In order to make out a claim under § 1985(3), a plaintiff must

allege and prove that “the conspiracy [was] motivated by some

racial

or

perhaps

otherwise

class-based,

invidious

discriminatory animus behind the conspirators’ action.” Robinson

v. Allstate Insurance Co., 11-4348-cv, 2013 U.S. App. LEXIS

1412, at *5 (2d Cir. Jan. 22, 2013)(internal quotation marks

omitted). Here the plaintiff has provided no evidence, nor has

he alleged, that the purported conspiracy was motived by racial

or otherwise class-based animus. For that reason, his conspiracy

claim fails and the motion is granted as to that claim.

The Court further notes that a plaintiff pursuing a claim

that defendants conspired to deprive him of his constitutional

rights “must provide some factual basis supporting a meeting of

the minds, such that defendants entered into an agreement,


5 42 U.S.C. § 1985(3)prohibits “two or more persons [from] . . . conspir[ing]
. . . for the purpose of depriving . . . any person or class of persons of
the equal protection of the laws, or of equal privileges and immunities under
the laws . . . .”

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express or tacit, to achieve the unlawful end.” Id. The Court

finds that the plaintiff has not provided a factual basis

supporting a meeting of the minds, which is an additional reason

why his conspiracy claim cannot succeed.

D.

Qualified Immunity

Finally, Detectives Jackson and Hayes seek summary judgment

with respect to Mr. Pais’ constitutional claims on qualified

immunity grounds. Specifically, they argue that their actions

towards Mr. Pais were objectively reasonable.

Qualified immunity “protects government officials from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks

omitted). As such, “[q]ualified immunity balances two important

interests — the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Id.

In Saucier v. Katz, 533 U.S. 194 (2001), the U.S. Supreme

Court set forth a mandatory two-step inquiry to ascertain the

availability of the qualified immunity defense. First, the

Court must decide whether “the facts alleged show the officer’s

conduct violated a constitutional right[.]” Id. at 201. Where

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the plaintiff satisfies this first step, the court must decide

“whether the right was clearly established” at the time of the

defendant’s alleged misconduct. Id. This two-step process is

still considered “beneficial,” but is no longer mandatory.

Pearson, 555 U.S. at 236; Hilton v. Wright, 673 F.3d 120, 126-27

(2d Cir. 2012).

At the summary judgment stage, defendants will only be

entitled to qualified immunity where “no reasonable jury,

looking at the evidence in the light most favorable to, and

drawing all inferences most favorable to, the plaintiff[ ],

could conclude that it was objectively unreasonable for the

defendant[s] to believe that [they were] acting in a fashion

that did not clearly violate an established federally protected

right.” Farid v. Ellen, 593 F.3d 233, 244 (2d Cir. 2010)

(internal quotation marks omitted).

Here, a reasonable jury could conclude, based on record

evidence interpreted in the light most favorable to Mr. Pais,

that Detective Jackson unexpectedly punched him in the face

without provocation and fabricated a pretext to justify his act.

A reasonable jury could further conclude, based on record

evidence interpreted in the light most favorable to Mr. Pais,

that Detectives Jackson and Hayes subsequently concealed his

resulting injury, needlessly prolonged his detention, and denied

him access to necessary medical attention. Given these

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circumstances, a reasonable jury could conclude that it was

objectively unreasonable for Detectives Jackson and Hayes to

believe that their conduct did not clearly violate Mr. Pais’

Fourth and Fourteenth Amendment rights. See Mickle v. Morin, 297

F.3d 114, 122 (2d Cir. 2002) (explaining that a reasonable jury

could credit the plaintiff’s version of the pertinent facts and

conclude that a police officer’s use of force “without warning

or provocation” was excessive in violation of the Fourth

Amendment and that “no reasonable police officer could

objectively have believed otherwise”); Weyant v. Okst, 101 F.3d

845, 856 (2d Cir. 1996) (recognizing that the denial of a

pretrial detainee’s needs for medical care can constitute a

Fourteenth Amendment violation). Accordingly, the motion at

bar, to the extent it seeks summary judgment on qualified

immunity grounds, is denied.

IV. CONCLUSION



For the foregoing reasons, the defendants’ Motion for

Partial Summary Judgment (doc. #33) is GRANTED IN PART and

DENIED IN PART. Specifically, the motion is granted insofar as

it seeks summary judgment with respect to: (1) the Section 1983

claim against the City of Waterbury (Fourth Cause of Action);

(2) the claims of false arrest, malicious prosecution and false

imprisonment against the defendants Hayes and Jackson (included

in the Second and Third Causes of Action); (3) the Fifth

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Amendment claim against the defendants Hayes and Jackson; (4)

the unreasonable use of force and assault and battery claims

against the defendant Hayes (included in the First, Second, and

Third Causes of Action); (5) the claim seeking statutory

indemnification pursuant to Connecticut General Statutes § 7-465

and § 7-101a (Fifth Cause of Action); (6) the failure to

intercede claim against the defendant Hayes relating to the

defendant Jackson’s alleged use of excessive force (included in

the First Cause of Action); and (7) the conspiracy claims

against the defendants Hayes and Jackson (included in the First

Cause of Action).

This case will proceed as to the following claims:

(1) the unreasonable use of force and assault and battery

claims against the defendant Jackson (included in the

First, Second, and Third Causes of Action);

(2) the claims against the defendants Hayes and Jackson

that the plaintiff’s prolonged detention and denial of

medical care violated his rights under the U.S.

Constitution and the Connecticut Constitution

(included in the First and Third Causes of Action);

(3) the intentional infliction of emotional distress







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claims against the defendants Hayes and Jackson

(included in the Second Cause of Action).









SO ORDERED this 4th day of June, 2013.





____/s/ DJS______________________________

DOMINIC J. SQUATRITO

UNITED STATES DISTRICT JUDGE










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