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Prive v. Wells

United States District Court, D. Vermont

March 17, 2015

FABIAN PRIVE, Plaintiff,


CHRISTINA REISS, Chief District Judge.

Plaintiff Fabian Prive brings this action pursuant to 42 U.S.C. § 1983 and under state law against Defendant Newport City police officer Richard Wells. Plaintiff alleges that Defendant caused him to be arrested and charged without probable cause and that Defendant used excessive force in the course of the arrest. In addition to federal claims of false arrest and excessive force (Count One), Plaintiff asserts state law claims against Defendant for intentional infliction of emotional distress (Count Two), assault and battery (Count Three), false imprisonment (Count Four), and malicious prosecution (Count Five).

Pending before the court is Defendant's motion for summary judgment. (Doc. 26.) Defendant argues that, based upon the undisputed facts, he is entitled to judgment as a matter of law in his favor because Plaintiffs arrest and prosecution were supported by probable cause, or, alternatively, by arguable probable cause that would entitle Defendant to qualified immunity. Defendant further argues that his use of force was reasonable, or, alternatively, was objectively reasonable under the circumstances such that he is entitled to qualified immunity with regard to Plaintiffs federal claim and to dismissal of Plaintiffs state law claims of assault and battery. Plaintiff opposes the motion.

The court heard oral argument on Defendant's motion on December 23, 2014, at which time the court directed Plaintiffs attorney to submit a response to Defendant's statement of undisputed facts. Plaintiffs attorney submitted Plaintiffs response on January 2, 2015, at which time the court took the matter under advisement.

Plaintiff is represented by David C. Sleigh, Esq. Defendant is represented by Joseph A. Farnham, Esq. and Kevin J. Coyle, Esq.

I. Factual and Procedural Background.

A. Undisputed Facts.

In the late evening of August 14-15, 2012, Border Patrol Agent Christopher Chamberlain was on duty traveling on Main Street in Newport, Vermont, when he observed an "SUV come through the stoplight, " "then cross over all lanes of traffic, " and drive straight towards him on his side of the road. (Doc. 26-3 at 1-2.) Agent Chamberlain stopped his cruiser to watch the vehicle approach, pass, and stop on Main Street near the railroad tracks. Agent Chamberlain turned his cruiser around, parked behind the already-stopped vehicle, and activated his cruiser's lights. He observed a woman, later identified as Plaintiffs wife, "walking around the front of the vehicle and get[ing] into the passenger seat." (Doc. 26-3 at 2.) Agent Chamberlain approached the driver's side and observed Plaintiff in the driver's seat. As Agent Chamberlain spoke with Plaintiff, he was joined by Officer Butler of the Newport City Police Department ("NCPD") and, minutes later, Defendant.[1]

Officer Butler spoke first with Plaintiff and requested his driver's license and proof of registration and insurance. In doing so, Officer Butler detected an odor of intoxicants emanating from Plaintiff and decided to commence a DUI investigation, with which Plaintiff fully cooperated. Officer Butler asked Plaintiff to perform field sobriety tests and submit a preliminary breath test, all of which Plaintiff passed. During this time, Officer Butler described Plaintiff as "very, very calm." (Doc. 34 at 5, ¶ 17.)

Officer Butler then conferred with Agent Chamberlain, who informed him that he had seen a woman operating the vehicle as it passed his cruiser on Main Street. When confronted with this allegation, both Plaintiff and, his wife, Laura Prive, asserted that Plaintiff had been driving. Officer Butler then decided to commence a DUI investigation of Laura Prive. At approximately this point, the events are captured by videotape.[2]

As Ms. Prive stood next to the passenger door, Plaintiff asked why the officers were speaking to her. Plaintiffs tone of voice appears loud, confrontational, and agitated, even when considered in the light most favorable to him. After Ms. Prive appeared to speak to Plaintiff through the open passenger window, Officer Butler ordered her to step away from the vehicle. She complied and walked to the rear of the vehicle, stating, "I know I've had enough to drink.... Just give me the DWI." (Ex. H-1 at 00:09-00: 15.) She explained to Officer Butler that Plaintiff had been driving and that they had been arguing. Officer Butler informed her that Agent Chamberlain saw her driving, to which she responded, "go ahead and charge me, " but continued to insist that Plaintiff had been driving, had stopped during their argument, and had "jumped out" of the vehicle. (Ex. H-1 at 00:38.) When Officer Butler asked how much she had to drink that night, she admitted to having three drinks and that "I know I've had enough. I know I'm over the limit." (Ex. H-1 at 00:50-01:03.) When asked by Officer Butler if she would submit to a preliminary breath test, she agreed she would do so. Defendant then asked her if she was "going to refuse to do the dexterities, " to which she responded: "I will do whatever the hell you want. He already said he was driving." (Ex. H-1 at 01:22-01:34.) As Defendant directed Laura Prive to stand in the street on "solid" ground in order to perform the dexterities, she stated to Defendant, "you don't like us." (Ex. H-1 at 01:35.)

At this juncture, Plaintiff exited the driver's side of the vehicle and approached the officers. He took approximately eight steps before stopping at the rear of his vehicle. Laura Prive and the officers were standing in close proximity to the rear of the vehicle. After Defendant issued one command to Plaintiff to get back in his vehicle, Ms. Prive responded, "no, he's staying out here, " and Plaintiff responded: "No. I just told you guys I was driving the rig." (Ex. H-1 at 01:40-01:45.) Again, Plaintiffs tone ofvoice appeared loud and confrontational. Defendant told Plaintiff: "I'm going to tell you one more time to get back in the vehicle." (Ex. H-1 at 01:45.) Plaintiffyelled: "I just told you I was driving the rig." (Ex. H-1 at 01:46.) Defendant ordered Plaintiff a third time to "get back in [the] vehicle, " while Laura Prive twice stated, "Fabian get in." (Ex. H-1 at 01:47-01:50.)

While ordering Plaintiff to get back in his vehicle, Defendant made "soft hand control contact with Plaintiffs chest, " (Doc. 26-2 at 5, ¶ 26), depicted on the videotape as akin to a light "shove[]." (Doc. 34 at 7, ¶ 26; see also Ex. H-2 at 00:18.) After Defendant did so, Plaintiff "made contact with" Defendant with both hands. (Doc. 26-2 at 5, ¶ 28; Doc. 34 at 7, ¶ 28.) From the videotape, it appears as ifPlaintiffattempted to push Defendant back with both of his hands. As Defendant stepped toward Plaintiff, Plaintiff raised his right arm and pointed at Defendant, while yelling, "Don't touch me. Don't touch me." (Ex. H-1 at 01:50; Ex. H-2 at 00:18-00:20.)

Defendant then pushed Plaintiff into the side of Plaintiffs vehicle and, holding Plaintiffs right wrist, moved Plaintiff away from it. The four officers then grappled with Plaintiff, with one officer also attempting to control Laura Prive, who struck and pushed the officers while yelling obscenities at them. During this time, Plaintiff stated, "That's f***ing harassment. That's f***ing harassment. That's harassment." (Ex. H-2 at 00:20-00:25.)

As the officers attempted to physically control both Plaintiff and Ms. Prive, Defendant twice ordered Plaintiff: "Go down or you're going to be tased." (Doc. 26-2 at 5-6, ¶ 31; see also Ex. H-2 at 00:25-00:32.) Another officer also ordered, "Go down." (Ex. H-2 at 00:30.) Plaintiff did not comply. Almost immediately after Defendant's second command, Defendant tased Plaintiff in the back, and Plaintiff fell to the ground. As Plaintiff lie on the ground, Defendant ordered Plaintiff twice to put his hands behind his back. Approximately twelve to fourteen seconds elapsed between Defendant's first contact with Plaintiff and Defendant's deployment of his taser.

Laura Prive continued to scream and curse at the officers during this time period, telling the officers to get off of her, while Plaintiff repeatedly advised his wife not to continue this activity. Thereafter, one officer restrained Ms. Prive while two officers handcuffed Plaintiff. The officers were then able to bring Plaintiff to a standing position. Laura Prive continued to scream and curse at the officers, prompting Plaintiff to again ask her to stop. She responded, "Fabian, they're a**holes, " and he replied, "Don't worry about it." (Ex. H-1 at 03:10-03:15.) The officers replaced Plaintiffs eyeglasses on his face. Plaintiff stated: "Gosh guys." (Ex. H-1 at 03:20.) The officers then escorted Plaintiff, who remained handcuffed, to a cruiser.

The officers resumed their investigation ofLaura Prive, who refused to perform field sobriety exercises, and when asked whether she would refuse to take a preliminary breath test, responded, "Yeah. F**k you all." (Ex. H-1 at 04:18-04:20.) After being told that she was under arrest, Ms. Prive said she would take the tests, but Defendant told her it was too late. Defendant then handcuffed Ms. Prive, and Officer Butler called for a tow truck for the Prives' vehicle. Laura Prive was charged with Negligent Operation and participated in a court diversion program.

Plaintiff was subsequently charged with disorderly conduct, in violation of 13 V.S.A. § 1026, and impeding a public officer, in violation of 13 V.S.A. § 3001. All charges against Plaintiff were eventually dismissed.[3]

Fallowing the incident in question, Plaintiff sought medical treatment, which he explained in his answer to Defendant's interrogatories as follows:

Went to North Country Hospital, was knocked down, glasses were knocked off my face. Handcuffs were extremely tight, cutting off circulation on arm. Sprained near thumb area and scrapes on arm. Marks on wrist from handcuffs being too tight.

(Doc. 26-2 at 11, ¶ 75; see also Doc. 26-24.) At the time of the incident, the NCPD had in effect a "Response to Resistance Policy" (the "Policy") that listed certain "Force Options." (Doc. 26-12.) Regarding "Soft Empty Hand Control, " the Policy stated: "Officer's use of hands on the subject to direct the subject's movement; Techniques that have a low potential of injury to the subject." Id. Regarding "Electronic Control Devices, " the Policy provided: "Where subject exhibits some level of active resistance/active aggression an officer may use an electronic control device to temporarily incapacitate the subject." Id. To determine "the appropriate level of response to a subject's resistance, " the Policy directed an officer to consider: (1) "How serious is the offense the officer suspected at the time the particular force used?"; (2) "What was the physical threat to the officer or others?"; (3) "Was the subject actively resisting or attempting to evade arrest by flight?" Id.

In 2012, Defendant was certified as a full time law enforcement officer by the Vermont Criminal Justice Training Council and had received training at the Vermont Police Academy and the NCPD regarding the use of force. Defendant was also certified to carry and use the taser he deployed against Plaintiff, which was the Taser International X2 taser. This type oftaser can be deployed in two different manners: "drive stun mode where the device is held against the subject's person, without skin penetration and without a set duration of electrical charge, or tase mode, which involves probes that are shot into the subject's body, with a duration of five seconds of electrical charge." (Doc. 26-2 at 6, ¶ 34) (internal quotation marks omitted). "Drive stun mode is intended to cause pain without incapacitating the subject" and "causes significant localized pain in the area touched by the device but does not have a significant effect on the subject's central nervous system." (Doc. 26-2 at 6, ¶¶ 35, 36.)

The tasing of Plaintiff occurred in drive stun mode. Senior Officer Royce Lancaster of the NCPD, who is certified and trained in the use of tasers and is the NCPD's taser instructor, reviewed the "function, electrical charge and duration" of the deployment of the taser in this case and estimated the drive stun applied to Plaintiff was "a single event of approximately 1.3 seconds." (Doc. 26-2 at 9-11, ¶¶ 66-74.)

B. Disputed Facts.

Agent Chamberlain testified that he saw Laura Prive operating the Prives' vehicle when it passed his cruiser on Main Street and that the Prives' vehicle stopped on its own on Main Street "pretty much right on the railroad tracks." (Doc. 26-3 at 2.) After the Prives' vehicle was stopped, Agent Chamberlain asserts that he saw the female who had been operating the ...

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