Atwood v. Town of Ellington

• Decision Date: 30 March 2006
• Docket Number: No. 3:04 CV 207(JBA).,3:04 CV 207(JBA).
• Court: U.S. District Court — District of Connecticut
• Parties: Heather ATWOOD, Plaintiff, v. TOWN OF ELLINGTON, et al., Defendants.

Page 136

427 F.Supp.2d 136

Heather ATWOOD, Plaintiff, v. TOWN OF ELLINGTON, et al., Defendants.

No. 3:04 CV 207(JBA).

United States District Court, D. Connecticut.

March 30, 2006.

COPYRIGHT MATERIAL OMITTED

Pamala J. Favreau, Willimantic, CT, William H. Paetzold, Moriarty & Paetzold, Glastonbury, CT, for Plaintiff.

Andrew M. Dewey, Claudia A. Baio, Baio & Associates, Rocky Hill, CT, Susan Boyan, Courtney Boyan & Foran, Vernon, CT, Cheryl E. Johnson, Elliot B. Spector, William C. Berry, Noble, Spector, Young & O'Connor, Stephen Richard Sarnoski, Attorney General's Office, Hartford, CT, for Defendants.

RULING ON TOWN OF ELLINGTON'S MOTION FOR SUMMARY JUDGMENT [Doc. # 531

ARTERTON, District Judge.

Plaintiff Heather Atwood ("Atwood") has filed an eight-count Second Amended Complaint [Doc. # 41] against Michael Nieliwocki ("Nieliwocki"), a former Ellington constable, and the Town of Ellington ("Town"),¹ arising from an alleged sexual assault committed by Nieliwocki against Atwood in the early morning hours of February 9, 2002. Counts One through Five allege, respectively, that Nieliwocki violated Atwood's right of substantive due process, used unreasonable force in violation of the Fourth Amendment, committed common law assault and battery, and committed negligent and intentional infliction of emotional distress. Counts Six and Seven allege that the Town must pay damages for which Nieliwocki is found liable under Connecticut General Statutes §§ 7-465 and 7-101a. Count Eight alleges a Monell claim that the Town failed to adequately screen, train and supervise Nieliwocki in the course of his duties.²

The Town moves for summary judgment on Counts Six through Eight on the basis that Nieliwocki's alleged assault was outside the scope of his employment and therefore the Town cannot be held statutorily liable for damages incurred, and that plaintiff has not proffered any factual evidence to support her claim of negligent hiring, training and supervision. For the reasons that follow, the Town's motion will be granted.

I. FACTUAL BACKGROUND

For purposes of this motion, the facts of the case are essentially undisputed. The only real factual dispute is whether plaintiff was sexually assaulted by Nieliwocki or whether she consented to sexual contact with him. This factual dispute, however, is not implicated in the Town's Motion for Summary Judgment. The summary judgment record reveals the following.

A. Events of February 8-9, 2002

On the night of February 8, 2002, plaintiff and her sister, Megan Atwood, and Megan's boyfriend Justin Saucier, were celebrating Megan's 21st birthday. They started at Megan and Justin's apartment, where plaintiff drank a few beers. Atwood Dep., Def. Ex. E, at 56.³ Then they went to Cioppino's Bar & Grill, located in Ellington, Connecticut, where plaintiff had "a couple of shots and a couple of drinks." Id. at 57. At some point during the night, plaintiff was so intoxicated that she fell in the bar and decided to have Justin drive her home. Id. at 63, 70; Atwood Internal Affairs Investigation Stmt., Pl.Ex. 1, at 3. As she left, she accidentally took another woman's jacket and an altercation ensued, in which Megan became involved. Atwood Stmt. at 3; Atwood Dep. at 60. Megan then became angry with plaintiff for leaving the bar with Justin. Id. During a fight between plaintiff and her sister, shortly after 1:00 a.m., Ellington Constables Michael Nieliwocki and Joseph Grayeb, State Trooper Robert Palmer, and State Trooper trainee Louis Kmon arrived. See Internal Affairs Report at 8-11.

Plaintiff was so "severely intoxicated" and "she was swaying so bad[ly] that she had to lean up against the [police] vehicle to keep from falling." Grayeb Stmt. to Vernon Police, Internal Affairs Report, Ex. 11, at 2. Plaintiff was "standing in very close proximity to Nieliwocki and was touching him and at one point attempted to hug him." Internal Affairs Report at 8.

Nieliwocki determined that the argument between the sisters was only verbal and "it didn't look like there was anything criminal," but that they could not go home together because they were arguing and they could not drive because they were intoxicated. Nieliwocki Stmt., Def. Ex. F, at 2. Grayeb took Megan home and Nieliwocki took Heather to a Holiday Inn in the town of Vernon. Id. Nieliwocki checked plaintiff into the hotel by asking her for her credit card and driver's license, and then having her sign the credit card slip. Id. at 12. The night clerk at the motel described plaintiff to the Vernon Police Department as "being loud with slurred speech." Internal Affairs Report at 12. Atwood does not remember anything after that, except waking up the next morning wearing only her socks. Atwood Dep. at 82; Atwood Stmt. to Vernon Police at 2.

Nieliwocki then returned to his office, where he and Grayeb completed some paperwork, and Nieliwocki told Grayeb that plaintiff had tried to make a "pass" at him in the motel room. Nieliwocki Stmt. at 4; Grayeb Stmt. at 3. At approximately 3:00 a.m., after completing his shift, Nieliwocki went back to the motel, ostensibly to return plaintiff's keys, which she had left in the police cruiser; but when Grayeb asked him, he told Grayeb that he was not going back to the motel, because "basically it was my own personal business." Id.

Grayeb "got this gut feeling that Mike [Nieliwocki] was going back to the hotel for something" and went to check on him. Grayeb Stmt. at 3. He found Nieliwocki in the hotel parking lot, where Nieliwocki said he was returning plaintiff's keys. Id. at 3-4. Nieliwocki then went inside and Grayeb drove away, but Grayeb "didn't feel right so [he] turned around and went back to the hotel." Id. at 4. When he arrived he saw Nieliwocki speaking on the phone at the front desk. Nieliwocki gave plaintiff's keys to the manager and then Grayeb and Nieliwocki went outside, Where Grayeb told Nieliwocki, "let's get out of here," and warned him "not to go up to the room alone because she was really `bombed.' Mike [Nieliwocki] said that it was OK, that her keys were at the front desk. He further said, `Besides, I'm off duty."' Id.

Atwood remembers nothing about those few hours in the hotel, only that when she awoke she "knew something was not right, because she felt soreness in her vaginal area and had a lot of bruises on her legs and inner thighs." Atwood Stmt. to Vernon Police at 2.

On February 9, 2002, plaintiff went to a hospital for an examination, and later made a report to the Vernon Police Department, which was investigated but concluded with no criminal charges brought against Nieliwocki. See Letter from Asst. State's Attorney Sedensky to Sgt. William Konieczny, 11/7/02, Pl.Ex. 13. The State Police initiated an internal affairs investigation, which concluded that Nieliwocki was guilty of "conduct unbecoming an officer." Internal Affairs Report at 22. As a result, Nieliwocki was discharged by the Ellington Board of Selectmen on October 15, 2003. Letter from Stupinski to Nieliwocki, 10/16/03, Ex. 14 to Stupinski Dep., Pl.Ex. 9.

B. Training and Supervision of Ellington Constables

The elected Ellington First Selectman in February 2002 was Michael Stupinski, who in that capacity was also the Town's Chief of Police. Stupinski Dep., Pl.Ex. 9, at 8. At that time Ellington had a "Resident Trooper Agreement" with the State Police for Ellington's public safety services. The resident trooper oversaw the town constables, who were only part-time. Id. at 15, 24-25. The Resident Trooper Agreement provided:

The Town shall delegate to the Division of State Police the authority to supervise and direct the law enforcement operations of appointed constables and police in the Town. All town police officers/constables shall be subject to the applicable provisions of the current Administration and Operations Manual of the Department of Public Safety.

Pl.Ex. 12 at § I. The Agreement further provided that the "Town shall retain administrative responsibility for its personnel, including but not limited to, ensuring compliance with POST [Police Officer Service and Training] requirements regarding hiring, lateral entry appointments, and in-service training responsibilities." Id. at § II. Stupinski interpreted this section to mean that the Town had responsibility for ensuring that the constables met State Police training and administrative requirements, but that the Town itself was not required to provide such training, and in fact, the Town delegated all required training of its constables to the State Police. Stupinski Dep. at 30.

While it was foreseeable to Stupinski that Ellington constables would likely come in contact with intoxicated female citizens during the course of their employment, the Town did not "have any policy at all regarding any procedures that should be used when. . . male constables came into contact with intoxicated females." Id. at 27. State Police policies governed such issues, and Stupinski would have "deferred to their expertise." Id. at 28.

The Resident Trooper Agreement requires that "Town police officers shall conform to applicable A & 0 Manual and other department directives" and that "[o]rders and directives issued by the town shall not conflict with the department A & 0 Manual, general orders, or special orders." Pl.Ex. 12 at § 15.3.2(e)((e)). The record contains no evidence of any policies and procedures in the State Police A & 0 Manual applicable to officer interactions with intoxicated female citizens, nor the contents of the required training provided by the State Police to Ellington constables, including Nieliwocki, nor whether that training addressed procedures for dealing with intoxicated females with whom officers came in contact in the course of their duties.

Plaintiff claims that the Town has Morrell liability to her for Nieliwocki's assault because it renewed Nieliwocki's constable appointment in November 2001, notwithstanding Nielikowki's misconduct toward two...