Waller v. City of Middletown, No. 3:11–CV–01322 CSH.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtHAIGHT, Senior District Judge
Citation50 F.Supp.3d 171
PartiesJayrado WALLER, Marcia Waller, Plaintiffs, v. CITY OF MIDDLETOWN, Mark Del Mauro, Nicholas Puorro, William Hertler, Douglas Clark, Frank Scirpo, Defendants.
Docket NumberNo. 3:11–CV–01322 CSH.
Decision Date29 September 2014

50 F.Supp.3d 171

Jayrado WALLER, Marcia Waller, Plaintiffs
CITY OF MIDDLETOWN, Mark Del Mauro, Nicholas Puorro, William Hertler, Douglas Clark, Frank Scirpo, Defendants.

No. 3:11–CV–01322 CSH.

United States District Court, D. Connecticut.

Signed Sept. 29, 2014.

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John Louis Cordani, Jr., Maureen Danehy Cox, Carmody Torrance Sandak & Hennessey, LLP, New Haven, CT, Sirui Sherry Xia, Carmody, Torrance Sendak & Hennessey LLP, Waterbury, CT, for Plaintiff.

Allison L. Pannozzo, Melinda A. Powell, Rose Kallor LLP, Hartford, CT, for Defendant.


HAIGHT, Senior District Judge:

Attempting to apprehend the suspect of a violent crime named in an arrest warrant,

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officers of the Middletown Police Department forced entry into a small residential apartment, where they believed the suspect to be present and living. The suspect was no where to be found, and the apartment, as it turned out, was not the residence of the suspect, but the home of Plaintiff Jayrado Waller. This is an action for damages arising from that incident.

Jayrado and his conservator, Marcia Waller (collectively, “Plaintiffs”) have filed this lawsuit against Defendants City of Middletown (the “City”), detective Mark Del Mauro, detective Nicholas Puorro, officer Douglas Clark, officer William Hertler, and officer Frank Scirpo (collectively, “Officers”). In Count One of the amended complaint, which charges the Officers, and Count Two, which charges the City, Plaintiffs allege that Jayrado was deprived of his rights under the Fourth and Fourteenth Amendments to be free from unreasonable searches or seizures, in violation of 42 U.S.C. § 1983. In Count Three, Plaintiffs allege that the Officers deprived Jayrado of his parallel right to be free from unreasonable searches or seizures under Article First, § 7 of the Connecticut Constitution. In Counts Four and Five, Plaintiffs charge the Officers with trespass and intentional infliction of emotional distress, respectively. Plaintiffs charge both the Officers and the City with negligent infliction of emotional distress in Count Six. Doc. [48].

This case is before the Court on separate motions for summary judgment filed by Hertler and Scirpo (Doc. # 90), the City (Doc. # 87), and Clark, Del Mauro and Puorro (Doc. # 89) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs oppose the motions. This Ruling decides them.1


The following facts are undisputed except where otherwise noted.

On March 16, 2010, the Middletown Police Department obtained a warrant for the arrest of Shamaz Perry, who was one of five individuals believed to be involved in the robbery and violent assault of Justin Molinaro. Doc. [92–3]. The arrest warrant indicated that Perry resided at 1421 Washington Street, in Middletown. Id. On March 18, 2010, Detectives Puorro and Del Mauro proceeded to the Stop and Shop grocery store in Cromwell, where they believed Perry was working. Doc. [92–2]. The detectives learned that Perry was not scheduled to work that day, but the store manager provided the detectives with what the detectives came to believe was Perry's current address: 1189 Washington Street, Apartment D–11, Middletown. Doc. [92–2]. That address comported with information the detectives had received from Molinaro and confidential informants that Perry resided somewhere in the “Sagamore Hills (# 1151 and # 1189 Washington Street) area,” which were the addresses of the two buildings of the Sagamore Hills apartment complex. Doc. [92–2]; Doc. [106–1] Ex. C at 15. The detectives proceeded immediately to 1189 Washington Street. Doc. [92–2]. Upon arrival, they noticed a burgundy 1995 Nissan Maxima in the parking lot, which the Officers claim was registered to Perry's relative, Doris Perry. Doc. [92–2]. A car matching that description was identified in the arrest warrant for Perry as the vehicle used in

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connection with assault and robbery of Molinaro. Id.

Detectives Del Mauro and Puorro, along with Officers Clark, Hertler and Scirpo who had also been called to scene, made their way into the apartment building using keys or a pass code that had been provided to them by the management of the apartment complex. Doc. 48 at ¶¶ 17–18; Doc. [106–1] Ex. A at 45; Doc. [106–1] Ex. C at 17–20. Once inside, they proceeded to the door of what eventually proved to be Jayrado's apartment, on the fourth floor of the building. Doc. [48] at ¶ 20. They smelled marijuana and heard people speaking with each other inside the apartment unit. Doc. [92–2]; [106–1] Ex. A at 56, 67. They called out for the door to be opened, but when it became apparent that no response was forthcoming, they knocked down the door with a battering ram. Del Mauro, Puorro and Clark then entered inside to search the apartment. Hertler and Scirpo remained in the hallway. Doc. [93–10] at 54. The television was on at medium volume but no one was in the apartment.2 Doc. [99–2].

The parties dispute much of what happened next. Although both sides agree that the Officers ultimately determined that Jayrado was not the suspect they were looking for, Plaintiffs claim that the Officers reached this determination only after they patted down or searched Jayrado's person. Doc. [14] at ¶ 12; Doc. [92–15] at 5; Doc. [106–1] Ex. H at 25. Further, Jayrado, who has been diagnosed with attention deficit hyperactivity disorder, and bipolar disorder, claims that he was derided by each of the Officers for expressing to them his desire at this time to contact his mother, Marcia. Doc. [48] at ¶ 27; Doc. [106–1] Ex. H at 26–27; 46. Plaintiffs also claim that when Jayrado entered the apartment, he discovered that the Officers' search of the unit had resulted in damage to his personal property, including the destruction of certain electronic devices. Doc. [48] at ¶ ¶ 31, 61; Doc. [106–1] Ex. G at 43–44.

After the incident, Jayrado claims that his “moods shifted a lot more,” that he became “on edge” and felt unsafe in public and subject to harassment by the police. Accordingly, his health care provider increased the dosages of the medications he was taking, Ambien (for sleep) and Depakote and Risperdal (for bipolar disorder ). Doc. [106–1] Ex. H at 46–48. Marcia claims that the ordeal left her son “traumatize[d].” Doc. [106–1] Ex. I at 27.

Plaintiffs seek compensatory damages for Jayrado's emotional distress and destroyed property, punitive damages against the Defendants, and a written apology from the Officers and the City of Middletown. Doc. [48] at 11.


A motion for summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is

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entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

Summary judgment is appropriate if, after discovery, the nonmoving party “has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The burden is on the moving party ‘to demonstrate the absence of any material factual issue genuinely in dispute.’ ” Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319–20 (2d Cir.1975) ).

A dispute concerning a material fact is genuine “ ‘if evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The Court must view all inferences and ambiguities in a light most favorable to the nonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Id.

A. Officers Liability under 42 U.S.C. § 1983

Plaintiffs charge the Officers in Count One with deprivation of his right to be free from unreasonable searches under the Fourth and Fourteenth Amendments in violation of 42 U.S.C. § 1983. Section 1983 does not itself provide a source of substantive rights, but instead provides the mechanism by which a plaintiff may seek vindication of federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived him of a federal right.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). The Fourth Amendment, on which Plaintiffs' section 1983 claim is predicated, reads as follows:

The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall

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