Kucera v. Tkac

Decision Date17 November 2014
Docket NumberCase No. 5:12-cv-264
CourtU.S. District Court — District of Vermont


Case No. 5:12-cv-264


November 17, 2014


Plaintiff Dennis Kucera ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 and under state law against Defendants Michael Tkac, Glenn Cutting, and Leonard Roberts (collectively, "Defendants"). Plaintiff alleges that Defendant Michael Tkac ("Detective Tkac") caused him to be arrested, detained, and arraigned without probable cause. Plaintiff further alleges that in Detective Tkac's affidavit in support of probable cause (the "Affidavit"), he knowingly included false statements and withheld exculpatory information. In addition to claims of false arrest, false imprisonment, and malicious prosecution, Plaintiff asserts various state law causes of action against Defendants arising out of their handling of his state criminal case, including abuse of process, negligence, intentional infliction of emotional distress, defamation, and private nuisance.

Pending before the court is a motion for summary judgment filed by Defendants. (Doc. 64.) Defendants argue that based upon the undisputed facts, they are entitled to judgment as a matter of law in their favor because Plaintiff's arrest and prosecution were supported by probable cause. In the alternative, they assert that they are entitled to

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qualified immunity, as well as immunity provided to elected municipal officials pursuant to Vermont law. Plaintiff opposes the motion.

The parties waived oral argument. Plaintiff is represented by Christopher A. Dall, Esq. Defendants are represented by Joseph A. Farnham, Esq. and Nancy G. Sheahan, Esq.

I. The Undisputed Facts.

A. The September 10, 2010 Incident and Its Aftermath.

In September 2010, Plaintiff and his girlfriend, Monica Therrien, resided together in Room 130 at the Shady Lawn Motel in Hartford, Vermont. At the time, they had lived together for approximately two years.

At 9:24 p.m. on September 10, 2010, Ms. Therrien made a 911 call to the Hartford Police Dispatch ("Dispatch"). She advised that her boyfriend, whom she identified as Plaintiff, was "trying to beat her up" and that she was hurt "a little bit." (Doc. 64-5 at 1, ¶¶ 5-6.) She stated that she did not want to get Plaintiff in trouble or arrested but that she needed help and wanted law enforcement to come to speak with him. Dispatch advised her to enter the bathroom and lock the door. Ms. Therrien replied that she was already in the bathroom but that she could not lock the door.

Hartford Police Officers Christopher O'Keeffe, Stewart Rogers, and Jon Adams responded to Ms. Therrien's 911 call after being advised by Dispatch that the call involved potential domestic violence, that there was alcohol involved, that Ms. Therrien's boyfriend "Dennis" might be armed with knives, and that he was now in the room. Upon their arrival at the Shady Lawn Motel, the officers determined that the 911 call originated from Room 130 and not Room 230.

The officers entered Room 130 through an open door and encountered Plaintiff and Ms. Therrien. Officer Adams spoke with Plaintiff, who denied assaulting Ms. Therrien. When asked what was going on, Plaintiff responded that Ms. Therrien was "way, way over the limit" and that she had a "severe" alcohol problem. (Doc. 64-7 at 05:22-05:50.)

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Officer O'Keeffe spoke with Ms. Therrien, who appeared to be intoxicated and admitted, when asked, that she was drunk, stating, "Monica is always drunk." (Doc. 64-7 at 04:42-05:00; Doc. 64-8 at 02:28-02:34.) She also stated that "she doesn't deserve to get beaten and hurt" and that she did not want Plaintiff hurting her. (Doc. 64-7 at 05:00-5:08; Doc. 64-8 at 2:34-2:40.) When asked about a visible injury, Ms. Therrien stated she had done it to herself. Ms. Therrien then told Officer O'Keeffe that Plaintiff had grabbed her by both arms and shoved her against a waist-high dresser along a wall in their room, and she pointed towards the dresser to indicate where she had been shoved. On a scale of one to ten, she ranked her pain at an eight. She told Officer O'Keeffe that she had hidden in the bathroom to keep away from Plaintiff. She asked the officers whether they could tell Plaintiff to "behave." (Doc. 64-7 at 10:00-10:05.) She showed Officers O'Keeffe and Adams her arms, asking, "[w]ould I do this to myself?" (Doc. 64-19 at 1, ¶ 3.) The officers saw no marks on Ms. Therrien's arms. After Officers O'Keeffe and Adams told Ms. Therrien several times that they could not see any evidence of an injury, Ms. Therrien became confrontational and raised her voice. Officer Adams threatened to arrest her if she continued to yell at him, and she responded, "fine, take me to jail . . . I don't want him hurting me." (Doc. 64-7 at 10:32-11:09.)

Thereafter, Ms. Therrien attempted to walk away from the officers, which led to a physical altercation between Ms. Therrien and Officer Adams. Ms. Therrien sustained an injury to her head and was arrested. An officer requested an ambulance for the "open wound" on Ms. Therrien's forehead because "her face was the first thing to hit the ground" during her arrest. (Doc. 64-7 at 12:06-12:48; 17:35-17:45.) He reported she was "semi-conscious," id. at 12:40-12:48, and despite numerous attempts from the officers to converse with her, she was initially non-responsive. After an ambulance arrived, emergency medical technicians ("EMTs") attended to Ms. Therrien, who continued to struggle with the EMTs and the officers. Ms. Therrien was then transported to the hospital to receive further treatment.

The officers did not immediately arrest or issue a citation to Plaintiff. Officer Adams, the senior officer at the scene, stated that he did not think they could arrest or cite

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Plaintiff for a "domestic" because, among other things, Ms. Therrien did not have "any marks" on her. (Doc. 64-8 at 23:15-23:50; see also Doc. 64-7 at 25:58-26:07.) The officers also decided that although Ms. Therrien had been "violent" and "tumultuous," (Doc. 64-8 at 23:17-23:50), they were not going to press charges against her.

On September 20, 2010, Hartford Chief of Police Glenn Cutting ("Chief Cutting") learned that Ms. Therrien had been re-admitted to the hospital on September 12 for injuries that allegedly included broken ribs and a bruised lung. Chief Cutting was informed that these injuries were allegedly caused by the Hartford police officers involved in Ms. Therrien's arrest. In response, Chief Cutting asked the Vermont State Police ("VSP") to investigate whether the responding officers used excessive force in restraining and arresting Ms. Therrien. After VSP's investigation was completed, the Vermont Office of the Attorney General reviewed the investigation file and determined that the Hartford police officers did not use excessive force.

Chief Cutting assigned Detective Tkac to conduct an internal investigation of the September 10, 2010 incident. As part of his internal investigation, Detective Tkac reviewed Ms. Therrien's 911 call and the mobile recording devices used by Officers Adams and Rogers.1 He also spoke with Officer O'Keeffe, who informed Detective Tkac of Ms. Therrien's statements to him during his September 10 interview wherein she stated that Plaintiff grabbed her and pushed her against a dresser in their room. Officer O'Keefe further advised that Ms. Therrien had told him that she hid in the bathroom with the door closed in an effort to keep Plaintiff away.

With the assistance of another Hartford police officer, Detective Tkac interviewed several residents of the Shady Lawn Motel, many of whom had not witnessed the September 10 incident. Ralph Diaz, who was in Room 130 with Plaintiff and Ms. Therrien prior to the officers' arrival, informed Detective Tkac that he observed Ms. Therrien yelling and throwing things and that he did not witness Plaintiff assault Ms. Therrien. Mr. Diaz further advised that he left Room 130 before Ms. Therrien's 911 call.

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For this reason, Detective Tkac "did not find him to be a particularly significant witness." (Doc. 64-10 at 4, ¶ 20.) David Nestle, who resided in an adjoining room that shared a common wall with Room 130, advised that prior to the officers' arrival, he heard "noises like banging around and furniture moving against the wall." (Doc. 64-2 at 6, ¶ 37; Doc. 64-10 at 3-4, ¶ 16.)

Four other individuals, some of whom were not present during the September 10 incident, also provided Detective Tkac with information. Michael Hackney told Detective Tkac that he had previously seen bruises on Ms. Therrien's arms which he believed Plaintiff caused. Bethany Duval likewise informed Detective Tkac that she was aware that, in the past, Plaintiff had grabbed Ms. Therrien's arms and shaken her. Two additional individuals, Crystal Butler and Brenda Hutchins, witnessed an officer kneeling on Ms. Therrien's back while handcuffing her. Ms. Butler thought the pressure the officer used when kneeling on Ms. Therrien's back did not look "abnormal," and Ms. Hutchins stated that the officer did not "jump on" Ms. Therrien. (Doc. 64-2 at 7, ¶¶ 38-39; Doc. 64-10 at 4, ¶¶ 17-18.) Ms. Hutchins also told Detective Tkac that she had witnessed Ms. Therrien showing the officers the alleged bruises on her back and hip and further witnessed the responding officers stating that they saw no marks. Susan Heyes gave Detective Tkac photographs of the alleged bruising to Ms. Therrien's back, which were taken a few days after the September 10 incident and which reveal visible marks on Ms. Therrien's back, arms, shoulder, and hip. Detective Tkac concluded that these photographs appeared to be consistent with Ms. Therrien's allegation that Plaintiff had pushed her against a waist-high dresser.

As a result of his investigation, Detective Tkac drafted the...

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