Doutel v. City of Norwalk

• Decision Date: 03 July 2013
• Docket Number: CIVIL ACTION NO. 3:11-CV-01164 (VLB)
• Court: U.S. District Court — District of Connecticut
• Parties: BARBARA C. DOUTEL, PLAINTIFF, v. CITY OF NORWALK, HARRY W. RILLING, THOMAS MATERRA, JAMES WALSH, JARED ZWICKLER, WILLIAM CURWEN, JEREMY SALLEY, KENNETH FLUDD, and FRANK REDA, DEFENDANTS.

BARBARA C. DOUTEL, PLAINTIFF,

v. CITY OF NORWALK, HARRY W. RILLING,THOMAS MATERRA, JAMES WALSH, JARED ZWICKLER,WILLIAM CURWEN, JEREMY SALLEY, KENNETH FLUDD,and FRANK REDA, DEFENDANTS.

CIVIL ACTION NO. 3:11-CV-01164 (VLB)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Dated: July 3, 2013

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT / MOTION TO DISMISS

[Dkts. 26, 27]

I. Introduction

The Plaintiff, Barbara C. Doutel ("Plaintiff" or "Mrs. Doutel"), brings this action against the Defendants City of Norwalk, Chief of the Norwalk Police Department Harry W. Rilling, and police officers Thomas Materra, James Walsh, Jared Zwickler, William Curwen, Jeremy Salley, Kenneth Fludd, and Frank Reda, in recompense for alleged deprivations of Plaintiff's constitutional rights stemming from a search of Plaintiff's home in her absence and a seizure of firearms allegedly owned by her. Plaintiff alleges a violation of her right to be free from unreasonable search and seizure pursuant to the 4th Amendment, a deprivation of her right to procedural due process in contravention of the 14th Amendment, municipal liability against the City based on a theory of failure to train, and a violation of Plaintiff's right to keep and bear arms under both the 2ndAmendment to the U.S. Constitution and Article 1, section 15 of the Connecticut constitution. Currently pending before the Court is Defendants' Motion to Dismiss and Motion for Summary Judgment. For the reasons that follow, the Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part, and the Defendants' Motion to Dismiss is GRANTED.

II. Factual Background

As an initial matter, the Court notes that Fed. R. Civ. P. 56(c)(1) requires that

[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact.

Rules 56(c)(2) and (c)(3) declare that a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence" and that "[t]he court need consider only the cited materials, but it may consider other materials in the record." Additionally, "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . [or] grant summary judgment if the motion and supporting materials - including the facts considered disputed - show that the movant is entitled to it . . ." Fed. R. Civ. P. 56(e)(2), (e)(3).

Further, this district's Local Rule 56 requires that a party filing a summary judgment motion annex a "concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried." D. Conn. L. Civ. R. 56(a)(1). "All material facts set forth in said statement and supported by the evidence will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party. . ." Id. Local Rule 56(a)(2) requires that the papers opposing a motion for summary judgment shall include a document which states "whether each of the facts asserted by the moving party is admitted or denied" and must also include a "list of each issue of material fact as to which it is contended there is a genuine issue to be tried." Each statement of material fact in a Local Rule 56(a)(1) or Local Rule 56(a)(2) statement, as well as each denial in a summary judgment opponent's Local Rule 56(a)(2) statement, "must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial." D. Conn. L. Civ. R. 56(a)(3).

Here, Defendants have submitted a Local Rule 56(a)(1) statement with specific citations to evidence in the record. Plaintiff, however, has failed to include any citation to evidence in the record in her 56(a)(2) denials of facts alleged to be undisputed by the Defendants. In her own list of allegedly disputed facts, Plaintiff has improperly cited to entire exhibits - some of which are full deposition transcripts - rather than to specific portions thereof.

Thus, the Court will consider the facts presented in the Defendants' 56(a)(1) statement and the admissible evidence to which they cite to be controlling where adopted by Plaintiff, or where Plaintiff has objected to such facts but has failed to support her objection with any admissible evidence in the record and where the record itself does not support Plaintiff's denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (holding that Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'"). Where a fact has been adequately disputed or is supported by the record in this case, the Court has noted such.

In February 2011 Duane Doutel, Plaintiff Barbara Doutel's husband, had been a patient at the office of Dr. Igal Staw, who was his primary care physician, for approximately eight years. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶1; Dkt. 57-3, Duane Doutel Depo. p. 47]. On February 7, 2011 Mr. Doutel attended an appointment with Dr. Staw for a pre-operative physical examination and blood testing, some of which had been requested by his surgeon, Dr. Altman, prior to scheduled rotator cuff surgery. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶2; Dkts. 57-3, 57-4, Duane Doutel Depo. pp. 48, 50, 53, 70].

At the time of this appointment with Dr. Staw Duane Doutel possessed a permit issued by the state of Connecticut allowing him to carry a handgun. [Dkt. 57-4, Duane Doutel Depo. p. 60; Dkt. 57-9, Zwickler Depo. p. 56]. On February 7, 2011, Mr. Doutel carried to his appointment a loaded handgun in a holster on hiship and inside the waistband of his pants. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶6; Dkt. 57-4, Duane Doutel Depo. p. 57]. In the examination room, Mr. Doutel disrobed partially for his physical exam, placed his handgun on the counter, and placed the brimmed hat he had been wearing over the gun, completely encompassing the weapon. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶9; Dkt. 57-4, Duane Doutel Depo. p. 57, 58]. According to Mr. Doutel, he had placed his pistol and hat in similar fashion on prior visits to Dr. Staw's office. [Dkt. 57-4, Duane Doutel Depo. p. 58]. When Dr. Staw entered the room he casually moved Mr. Doutel's brimmed hat and saw the gun in its holster under the hat and on top of Doutel's pile of clothing. [Id. at 59; Dkt. 28, Ds' 56(a)(1) Stmt. ¶10]. Doutel testified that Dr. Staw then said, "Oh, what's this?" to which Doutel replied "Well, you've seen this before. . . I am permitted to carry this and it is - I carry it for self-defense." [Dkt. 28, Ds' 56(a)(1) Stmt. ¶¶12, 14; Dkt. 57-4, Duane Doutel Depo. p. 60]. Mr. Doutel and Dr. Staw have both testified that, on one or more prior occasions, Dr. Staw was aware that Mr. Doutel had carried a handgun into his office. [Dkt. 57-4, Duane Doutel Depo. p. 60; Dkt. 36-1, State. v. Doutel transcript 8/22/11, at pp. 7-8].

On February 9, 2011, Mr. Doutel received a call from Dr. Staw's office notifying him that the results of some of the blood tests performed at his appointment on February 7 were "out of bounds" and needed to be repeated. [Dkt. 57-4, Duane Doutel Depo. p. 53]. Specifically, Doutel was informed that he needed to repeat his hemoglobin A1C and cholesterol tests, which had not been ordered by Dr. Altman, but were routine tests that Dr. Staw had drawn allegedly without first notifying Duane Doutel and which related to Doutel's diabeticcondition. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶17; Dkts. 57-3, 57-4, Duane Doutel Depo. pp. 48-50, 53]. On this call, Mr. Doutel became annoyed and requested that Dr. Staw call him at his home to discuss this request. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶17; Dkt. 57-4, Duane Doutel Depo. p. 54]. Dr. Staw returned Doutel's call to discuss his test results, at which point Doutel informed Dr. Staw that he no longer wished to remain a patient at Staw's practice and instructed that his medical records be sent to Dr. Altman. [Dkt. 28, Ds' 56(a)(1) Stmt. ¶18; Dkt. 57-4, Duane Doutel Depo. p. 54].

On the evening of February 15, 2011, Mr. Doutel called Dr. Staw's office after hours and left the following message on the office's voicemail:

Hi, this is Duane Doutel, a former patient of Dr. Staw's. Uh, I paid at my last visit for an EKG and a CBC which were pre-op and they have not been forwarded, despite several requests, to the surgeon. He will provide those because I paid for them up front. I want them forwarded. If I haven't heard within forty-eight hours that those results have been forwarded to Dr. Altman, I will be walking into the office, and it will not be pretty, do you understand me? I paid for those up front. You will provide them. I will see to it that a valid A1C is done, not the botched one that Dr. Staw ran without fasting. Thank you.

[Dkt. 28, Ds' 56(a)(1) Stmt. ¶19; Dkt. 40-4, D. Doutel voice message 2/15/11 (manually filed as audio recording)].

At about 9:56 the following morning, February 16, 2011, Sandy Staw - Dr. Staw's wife and office employee - called the Norwalk Police Department and reported to the dispatcher that a "dissatisfied" patient had called and left a "very threatening message." [Dkt. 28, Ds' 56(a)(1) Stmt. ¶20; Dkt. 40-5, Sandy Stawpolice call (manually filed...