Decker v. Fish

Decision Date25 October 2000
Docket NumberNo. 2:99-CV-238.,2:99-CV-238.
Citation126 F.Supp.2d 342
PartiesWade DECKER, Plaintiff, v. Michael FISH, individually and in his capacity as a Colchester police officer; Matthew Hill, individually and in his capacity as a Colchester police officer; and the Town of Colchester, and as individuals, each of them, Defendants.
CourtU.S. District Court — District of Vermont

Robert Andres, Burlington, VT, for Plaintiff.

Nancy Goss Sheahan, Kevin John Coyle, McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendants.


SESSIONS, District Judge.

Plaintiff Wade Decker ("Decker") brought this action for damages against police officers Michael Fish ("Fish") and Matthew Hill ("Hill") and the Town of Colchester ("Colchester") arising from two incidents of alleged police misconduct occurring on August 2 and August 9, 1997, in Colchester, Vermont. In his complaint, Decker alleges numerous violations of his civil rights under the United States Constitution and state law. The defendants have moved for summary judgment on all of Decker's claims, dismissal for failure to prosecute or to render a default judgment against Decker. Meanwhile, Decker has moved for reconsideration of an order by this Court to exclude testimony from his expert witnesses.

For the reasons set forth below, the Defendant Colchester's motion for summary judgment is granted, Defendants Fish and Hill's motion for summary judgment is granted in part and denied in part, and Decker's motion for reconsideration is denied. Defendants' motions for failure to prosecute or to render a default judgment against Plaintiff are denied.

I. Facts

For purposes of the two motions for summary judgment, the following facts are undisputed or taken in the light most favorable to Decker, the nonmoving party.

On August 2, 1997, responding to a noise complaint, but without a warrant or permission of the occupants, Defendant Michael Fish entered the dwelling at 16 Heritage Drive in Colchester, Vermont, where Decker was attending a party. Once inside, Fish encountered Decker in the basement of the house, at which point Decker asked Fish how he got in the house and demanded that he leave. Fish responded by suggesting that he and Decker "settle things outside," and threatening to take Decker into custody. Decker remained inside, however, and Fish eventually left without further incident.

One week later, on August 9, 1997, Officer Fish, this time accompanied by co-defendant Officer Hill, returned to the residence at 16 Heritage Drive, responding to another noise complaint. Like the previous week, Decker was present attending a party. Fish again entered the residence without a warrant or permission of any of its occupants. Once inside, Fish arrested one of the partygoers, Joshua Dewey, and proceeded to escort Dewey to his police cruiser.

As Fish was escorting Dewey to the cruiser, Decker came out of the house and asked Fish why Dewey was being arrested. Fish did not respond. Decker repeated his question several times until Fish, apparently in an attempt to arrest Decker as well, grabbed Decker and a struggle ensued. During this struggle, which lasted at least several minutes, Fish threw Decker to the ground, sprayed him with mace repeatedly, and hit his head against a car. Officer Hill, attempting to help Fish gain control of Decker, used his baton to choke and strike Decker. Once the officers had Decker subdued and in handcuffs, they sprayed him again with mace and hit him again with a baton.

Decker was eventually prosecuted for two counts of aggravated assault and one count of hindering arrest. After a two-day trial, a jury convicted him on the hindering charge and acquitted him on both of the assault charges.

Brian Lafond, one of the occupants of the house where these incidents took place, testified at Decker's criminal trial that several years before the events that gave rise to this lawsuit, Lafond was repeatedly pulled over by Defendant Officer Fish. In response, Lafond filed two harassment complaints (presumably with the Town of Colchester). To Lafond's knowledge, no action was ever taken on those complaints.1

II. Discussion
A. Summary Judgment standard

Summary judgment should be granted when there is no dispute as to material facts, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact remains for trial. See Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993). The evidence of the nonmoving party should be taken as true, and all justifiable inferences should be drawn in its favor. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). If, upon examination of the record, the Court finds that any material issue remains in dispute, the motion for summary judgment must be denied. See Gibson v. American Broadcasting Companies, 892 F.2d 1128, 1132 (2d Cir.1989).

B. Defendant Colchester's motion for summary judgment

1. Decker's federal claims

Decker seeks to hold Colchester vicariously liable for the actions of Officers Fish and Hill on a theory of respondent superior. With regard to Decker's § 1983 claim,2 however, municipal liability may not be based on respondent superior alone. See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Powell v. Gardner, 891 F.2d 1039, 1045 (2d Cir.1989). In order to hold Colchester liable, Decker must show that Colchester had an official policy or custom which deprived Decker of a federal right. See Zahra, 48 F.3d at 685. Furthermore, a single act taken by a municipal employee below the policymaking level cannot generally be used to infer the existence of an unconstitutional policy or custom. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Moreover, there must be a direct causal link between the municipal policy or custom and the alleged constitutional deprivation; i.e., the plaintiff must demonstrate that the municipality was the "moving force" behind his claimed injury. See Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

In this case, there has been no evidence presented that would allow the Court to conclude that Colchester had an official policy or custom of permitting or encouraging its police officers (or any of its employees for that matter) to violate its citizens' federal rights. While a municipal policy may be inferred from the informal acts or omissions of supervisory municipal officials, such as the persistent failure to discipline subordinates who violate persons' civil rights, see Zahra, 48 F.3d at 685 (internal citations omitted), the evidence presented here is grossly insufficient to justify any such inference. The only evidence Decker has offered in support of his claims against Colchester is the testimony of an acquaintance who, several years ago, made two complaints about a single police officer who allegedly pulled him over repeatedly in an effort to harass him. Such evidence cannot support an inference that Colchester had a policy or custom which directly caused the alleged constitutional violations in this case. Colchester's motion for summary judgment with respect to Decker's federal law claims is therefore GRANTED.

2. Decker's state law claims

To the extent that Decker's complaint encompasses state law claims against Colchester in addition to his § 1983 claim, those claims are defeated by the defense of municipal immunity. In Vermont, as in most jurisdictions, municipalities can only be held liable for injuries arising from their proprietary, as opposed to governmental, duties. Atkinson v. Town of Westmore, 38 F.Supp.2d 338, 341 (D.Vt.1999) (citing Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446, 447 (1997)). While the proprietary/governmental distinction has often been criticized as very difficult to apply, see, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Clain v. City of Burlington, 202 F.2d 532, 533 (2d Cir.1953), there can be little question that police work is a quintessential governmental function. See Clain, 202 F.2d at 533 (categorizing "protection against violence and fire" as non-proprietary (i.e., governmental) functions of municipalities); see also 18 Eugene McQuillin, The Law of Municipal Corporations § 53.51 (3d ed. 1993) ("For those jurisdictions subscribing to the dichotomy between governmental and proprietary functions it is firmly established that the operation of a police department is a governmental function, and that acts or omissions [of the police] ordinarily do not give rise to liability on the part of the municipality.").3 As such, municipalities are immune from state law claims arising from injuries caused by the operation of their police departments.

Thus, to the extent that Decker has asserted state law claims against the Town of Colchester because of the actions of its police officers, such claims cannot survive Colchester's motion for summary judgment, and that motion is GRANTED.

C. The individual defendants' motions for summary judgment

1. Decker's trespass claims

One of the claims upon which Decker bases this lawsuit is that Defendant Fish trespassed upon the premises of 16 Heritage Drive in Colchester, Vermont, on August 2 and August 9, 1997. Decker's trespass claims, however, must fail, because he does not have standing to assert any such claims. Therefore, Fish and Hill's motions for summary judgment on these claims are GRANTED.

In order for a party to assert a trespass claim in Vermont, that party must have either legal...

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