Burwell v. Peyton

• Decision Date: 14 September 2015
• Docket Number: Case No. 5:12–cv–166.
• Citation: 131 F.Supp.3d 268
• Court: U.S. District Court — District of Vermont
• Parties: Wayne BURWELL, Plaintiff, v. Hartford Police Officer Fredrick PEYTON in his individual capacity and as an employee of the Town of Hartford, Hartford Police Officer Scott Moody in his individual capacity and as an employee of the Town of Hartford, Hartford Police Officer Kristinnah Adams in her individual capacity and as an employee of the Town of Hartford, Hartford Police Chief Glenn Cutting in his individual capacity, and Town of Hartford for the negligence of Emily Leinoff and Martha Morse, Defendants.

131 F.Supp.3d 268

Wayne BURWELL, Plaintiff,

v.Hartford Police Officer Fredrick PEYTON in his individual capacity and as an employee of the Town of Hartford, Hartford Police Officer Scott Moody in his individual capacity and as an employee of the Town of Hartford, Hartford Police Officer Kristinnah Adams in her individual capacity and as an employee of the Town of Hartford, Hartford Police Chief Glenn Cutting in his individual capacity, and Town of Hartford for the negligence of Emily Leinoff and Martha Morse, Defendants.

Case No. 5:12–cv–166.

United States District Court, D. Vermont.

Signed Sept. 14, 2015.

Ines C. Rousseau, Esq., Edward M. Van Dorn, Robin C. Curtiss, Van Dorn & Curtiss PLLC, Orford, NH, Jeffery J. Larrimore, Esq., The Law Offices of Jeffrey J. Larrimore, Cardiff by the Sea, CA, for Plaintiff.

James F. Carroll, Esq., English, Carroll & Boe, P.C., Middlebury, VT, Joseph A. Farnham, Esq., Kevin J. Coyle, Esq., Nancy G. Sheahan, Esq., McNeil, Leddy & Sheahan, P.C., Burlington, VT, Robin C. Curtiss, Van Dorn & Curtiss PLLC, Orford, NH, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

CHRISTINA REISS

, Chief Judge.

Plaintiff Wayne Burwell ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983

and state law against the Town of Hartford ("Hartford"), Hartford Police Chief Glenn Cutting ("Chief Cutting"), and Hartford police officers Kristinnah Adams ("Officer Adams"), Fredrick Peyton ("Officer Peyton"), and Scott Moody ("Sergeant Moody") (collectively, "Defendants") for their actions stemming from an incident on May 29, 2010 during which the individual officers responded to a 911 call at Plaintiff's residence. It is uncontested that the officers pepper-sprayed and beat Plaintiff with a baton in his own residence while Plaintiff was experiencing a hypoglycemic event triggered by a medical condition. It is also undisputed that the officers responded to a call that Plaintiff's residence appeared "ransacked" and that there was an unknown male inside.

Pending before the court are motions for summary judgment filed by Defendants. (Docs. 80 & 81.) Defendants contend that they are entitled to judgment as a matter of law in their favor on all of Plaintiff's claims because they had probable cause to seize Plaintiff, he was not conscious of any confinement, the officers' use of force was reasonable and privileged, and the individual officers are entitled to qualified and statutory immunity. Plaintiff opposes the motions, asserting that there are disputed issues of material fact and that Defendants are not entitled to judgment as a matter of law.

Plaintiff is represented by Robin C. Curtiss, Esq., Ines C. Rousseau, Esq., Jeffrey J. Larrimore, Esq., and Edward M. Van Dorn, Esq. Defendants are represented by Nancy G. Sheahan, Esq., Kevin J. Coyle, Esq., Joseph A. Farnham, Esq., and James F. Carroll, Esq.

I. Procedural Background.

The court heard oral argument on Defendants' motions on January 30, 2015, at which time the court ordered Defendants to submit a transcript of an audio recording from the body microphone of Officer Adams previously submitted as evidence.¹ There is a partial video recording of the incident which was taken from the vantage point of a police cruiser and which captures only some of the events in question. There is no video recording depicting what transpired in Plaintiff's residence.

On May 8, 2015, Defendants submitted the requested transcript prepared by a court reporter, after affording Plaintiff an opportunity to review it. Plaintiff, however, contests the accuracy of the transcript and proffers a competing version of how discrepancies and inaudible portions within it may be resolved. The parties have now submitted three versions of proposed revisions to the transcript of the audio recording which they apparently agree does not accurately reflect what can be heard on the audio recording. Because the court cannot reconcile these competing revisions without making findings of fact, it relies primarily on the audio recording in setting forth the relevant facts.

Plaintiff's Second Amended Complaint asserts five claims pursuant to 42 U.S.C. § 1983

: Count One against the individual officers for excessive force; Count Two against the individual officers for "detention and confinement"; Count Three against the individual officers for false arrest; Count Four against Hartford for establishing and maintaining customs, policies, or practices which gave rise to violations of Plaintiff's constitutional rights; and Count Five against Chief Cutting for supervisory liability.

Plaintiff's Second Amended Complaint asserts four claims against Hartford: Count Six for the negligence of the individual officers; Count Seven for the negligence of Chief Cutting; Count Eight for negligent training, retention, and supervision; and Count Twelve for the negligence of Emily Leinoff and Martha Morse (Hartford's 911 dispatchers on call the date of the incident). Because Plaintiff did not oppose Defendants' request for dismissal of Counts Eight and Twelve, the court dismissed those counts at oral argument and Ms. Leinoff and Ms. Morse are no longer defendants in this lawsuit. (Doc. 111.)

Finally, Plaintiff's Second Amended Complaint asserts three state law claims against the individual officers and Hartford: Count Nine for intentional infliction of emotional distress; Count Ten for negligent infliction of emotional distress; and Count Eleven for assault and battery.

II. The Undisputed Facts.

A. Plaintiff's Prior Medical Crisis.

Prior to the incident in question, on March 28, 2010, the Hartford Fire Department and emergency medical services were dispatched to Plaintiff's residence to resolve "a blood sugar issue."² (Doc. 98–3 at 26, ¶ 144.) Plaintiff was found in the bedroom of his residence supine, salivating, and unresponsive, with a blood sugar level of 24. (Doc. 98–5 at 1.) The emergency medical technicians ("EMTs") who responded, Alan Beebe and Robert Robishaw, were unable to administer glucose orally and observed that, at the time, Plaintiff could not stand or "take anything orally" and that Plaintiff "was not fighting back" while being treated. (Doc. 98–34 at 2; Robishaw Dep. at 26:4–13.) The EMTs gave Plaintiff a shot of glucagon

and intravenous fluids (an "IV"), after which Plaintiff became "alert" and "responsive" but was still "confused" and had difficulty recalling what had occurred that day. (Doc. 98–5 at 1; Doc. 98–42 at 2–3.) Plaintiff was then able to take glucose orally, but Plaintiff needed assistance standing and getting dressed.

Mr. Robishaw testified in deposition that on that occasion Plaintiff "was in an unconscious state responding only to painful or loud stimuli," and he opined that generally a person with a blood sugar reading of 24 and an 8 Glasgow Coma Scale would be in an unconscious state. (Doc. 98–34 at 3–4; Robishaw Dep. at 27:22–28:2.) After the EMT's initial treatment, Plaintiff was transported to the hospital.

B. The Housekeepers' Report to the Dispatcher.

In the afternoon of May 29, 2010, Hartford dispatcher Emily Leinoff (the "Dispatcher") received a transfer of a 911 call from an agent in Williston, Vermont. The call agent advised the Dispatcher that she had received a call from an employee of a cleaning service who had entered a client's residence at 34 Stony Creek in Wilder, Vermont with another housekeeper. The call agent further advised that the housekeepers reported that they found the place "ransacked," and that when they opened the door to the upstairs bathroom, they saw a person in the bathroom who "does not belong to the residence" and who "was just sitting on the toilet." (Doc. 98–8, Ex. 5 at 00:40.)

One of the two housekeepers, Holly Thomas, subsequently spoke directly with the Dispatcher.³ Ms. Thomas explained that she rang the doorbell of the residence in question, opened the door and said "hello" a couple times, and that no one responded. Ms. Thomas stated that the two housekeepers then went upstairs where she smelled something burning and observed an overturned lamp and alarm clock there were "burning into something." (Doc. 98–8, Ex. 5 at 01:24–01:32.) The housekeepers picked up the lamp which was no longer smoking. Ms. Thomas further reported that the other housekeeper opened the door to the bathroom, where the lights were off, and saw a person sitting on the toilet. She described the person as a "black male" who did not say anything to them or look at them when they opened the bathroom door. (Doc. 98–8, Ex. 5 at 05:30–06:10.) Ms. Thomas told the Dispatcher: "[W]e don't know if it's the person that owns the house, that ... may be sick or something, or ... what's going on." (Doc. 98–8, Ex. 5 at 01:39–01:45.) The Dispatcher did not hear this statement at that time, although she conceded in her deposition that the statement can be heard on the recording of the 911 call. (See Doc. 84–1 at 15–16, Leinoff Dep. at 28:14–29:4.)

Ms. Thomas repeatedly informed the Dispatcher she had never seen or met the owner of the residence, and she further stated that she did not know the resident's name. (See, e.g., Doc. 98–8, Ex. 5 at 06:18; see also Doc. 98–6 at 2, Thomas Dep. at 16:3–5.) She also stated that she had not seen the male leave the residence. When asked by the Dispatcher if the house was ransacked, Ms. Thomas replied that "it looked messy on the first floor."⁴ (Doc. 98–8, Ex. 5 at 04:13–04:25.) When asked if the housekeepers had keys to the condominium, Ms. Thomas replied that her boss had keys, that the residence was unlocked, and that she did not know "if they left it unlocked or if someone broke in to it." (Doc. 98–8, Ex. 5 at 05:05–05:20.)

Sergeant Moody⁵ was present when the Dispatcher received the 911 call. The Dispatcher informed Sergeant Moody that the call reported a person inside a residence at Stony Creek, that the cleaning crew did not know "who the person [was]," that there was smoke inside this residence, and that...