United States District Court, D. Vermont
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Wayne Burwell, Plaintiff: Robin C. Curtiss, Van Dorn &
Curtiss PLLC, Orford, NH.
Frederick Peyton, Scott Moody, Kristinnah Adams, Hartford
Police Officer, in his individual capacity and as an employee
of the Town of Hartford, Defendants: James F. Carroll, Esq.,
English, Carroll & Boe, P.C., Middlebury, VT.
Glenn Cutting, Hartford Police Chief, in his individual
capacity, Hartford, Town of, Defendants: Joseph A. Farnham,
Nancy G. Sheahan, McNeil, Leddy & Sheahan, P.C., Burlington,
AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docs. 80 &
Reiss, Chief United States District Judge.
Wayne Burwell (" Plaintiff" ) brings this action
pursuant to 42 U.S.C. § 1983 and state law against the
Town of Hartford (" Hartford" ), Hartford Police
Chief Glenn Cutting (" Chief Cutting" ), and
Hartford police officers Kristinnah Adams (" Officer
Adams" ), Fredrick Peyton (" Officer
Peyton" ), and Scott Moody (" Sergeant Moody"
) (collectively, " Defendants" ) for their actions
stemming from an incident on May 29, 2010 during which the
individual officers responded to a 911 call at Plaintiff s
residence. It is uncontested that the officers pepper-sprayed
and beat Plaintiff with a baton in his own residence while
Plaintiff was experiencing a hypoglycemic event triggered by
a medical condition. It is also undisputed that the officers
responded to a call that Plaintiff's residence appeared
" ransacked" and that there was an unknown male
before the court are motions for summary judgment filed by
Defendants. (Docs. 80 & 81.) Defendants contend that they are
entitled to judgment as a matter of law in their favor on all
of Plaintiff's claims because they had probable cause to
seize Plaintiff, he was not conscious of any confinement, the
officers' use of force was reasonable and privileged, and
the individual officers are entitled to qualified and
statutory immunity. Plaintiff opposes the motions, asserting
that there are disputed issues of material fact and that
Defendants are not entitled to judgment as a matter of law.
is represented by Robin C. Curtiss, Esq., Ines C. Rousseau,
Esq., Jeffrey J. Larrimore, Esq., and Edward M. Van Dorn,
Esq. Defendants are represented by Nancy G. Sheahan, Esq.,
Kevin J. Coyle, Esq., Joseph A. Farnham, Esq., and James F.
court heard oral argument on Defendants' motions on
January 30, 2015, at which time the court ordered Defendants
to submit a transcript of an audio recording from the body
microphone of Officer Adams previously submitted as
evidence. There is a partial video recording of
the incident which was taken from the vantage point of a
police cruiser and which captures only some of the events in
question. There is no video recording depicting what
transpired in Plaintiff's residence.
8, 2015, Defendants submitted the requested transcript
prepared by a court reporter, after affording Plaintiff an
opportunity to review it. Plaintiff, however, contests the
accuracy of the transcript and proffers a competing version
of how discrepancies and inaudible portions within it may be
resolved. The parties have now submitted three versions of
proposed revisions to the transcript of the audio recording
which they apparently agree does not accurately reflect what
can be heard on the audio recording. Because the court cannot
reconcile these competing revisions without making findings
of fact, it relies primarily on the audio recording in
setting forth the relevant facts.
Second Amended Complaint asserts five claims pursuant to 42
U.S.C. § 1983: Count One against the individual officers
for excessive force; Count Two against the individual
officers for " detention and confinement" ; Count
Three against the individual officers for false arrest; Count
Four against Hartford for establishing and maintaining
customs, policies, or practices which gave rise to violations
of Plaintiff s constitutional rights; and Count Five against
Chief Cutting for supervisory liability.
Second Amended Complaint asserts four claims against
Hartford: Count Six for the negligence of the individual
officers; Count Seven for the negligence of Chief Cutting;
Count Eight for negligent training, retention, and
supervision; and Count Twelve for the negligence of Emily
Leinoff and Martha Morse (Hartford's
911 dispatchers on call the date of the incident). Because
Plaintiff did not oppose Defendants' request for
dismissal of Counts Eight and Twelve, the court dismissed
those counts at oral argument and Ms. Leinoff and Ms. Morse
are no longer defendants in this lawsuit. (Doc. 111.)
Plaintiff's Second Amended Complaint asserts three state
law claims against the individual officers and Hartford:
Count Nine for intentional infliction of emotional distress;
Count Ten for negligent infliction of emotional distress; and
Count Eleven for assault and battery.
The Undisputed Facts.
Plaintiff's Prior Medical
to the incident in question, on March 28, 2010, the Hartford
Fire Department and emergency medical services were
dispatched to Plaintiff's residence to resolve " a
blood sugar issue."  (Doc. 98-3 at 26, ¶ 144.)
Plaintiff was found in the bedroom of his residence supine,
salivating, and unresponsive, with a blood sugar level of 24.
(Doc. 98 5 at 1.) The emergency medical technicians ("
EMTs" ) who responded, Alan Beebe and Robert Robishaw,
were unable to administer glucose orally and observed that,
at the time, Plaintiff could not stand or " take
anything orally" and that Plaintiff " was not
fighting back" while being treated. (Doc. 98-34 at 2;
Robishaw Dep. at 26:4-13.) The EMTs gave Plaintiff a shot of
glucagon and intravenous fluids (an " IV" ), after
which Plaintiff became " alert" and "
responsive" but was still " confused" and had
difficulty recalling what had occurred that day. (Doc. 98-5
at 1; Doc. 98-42 at 2-3.) Plaintiff was then able to take
glucose orally, but Plaintiff needed assistance standing and
Robishaw testified in deposition that on that occasion
Plaintiff " was in an unconscious state responding only
to painful or loud stimuli," and he opined that
generally a person with a blood sugar reading of 24 and an 8
Glasgow Coma Scale would be in an unconscious state. (Doc.
98-34 at 3-4; Robishaw Dep. at 27:22-28:2.) After the
EMT's initial treatment, Plaintiff was transported to the
The Housekeepers' Report to the
afternoon of May 29, 2010, Hartford dispatcher Emily Leinoff
(the " Dispatcher" ) received a transfer of a 911
call from an agent in Williston, Vermont. The call agent
advised the Dispatcher that she had received a call from an
employee of a cleaning service who had entered a client's
residence at 34 Stony Creek in Wilder, Vermont with another
housekeeper. The call agent further advised that the
housekeepers reported that they found the place "
ransacked," and that when they opened the door to the
upstairs bathroom, they saw a person in the bathroom who
" does not belong to the residence" and who "
was just sitting on the toilet." (Doc. 98-8, Ex. 5 at
the two housekeepers, Holly Thomas, subsequently spoke
directly with the Dispatcher. Ms. Thomas explained
that she rang the doorbell of the residence in question,
opened the door and said " hello" a couple times,
and that no one responded. Ms. Thomas stated that the two
housekeepers then went upstairs where she smelled something
burning and observed an overturned lamp and alarm clock there
were " burning into something." (Doc. 98-8, Ex. 5
at 01:24-01:32.) The housekeepers picked up the lamp which
was no longer smoking. Ms. Thomas further reported that the
other housekeeper opened the door to the bathroom, where the
lights were off, and saw a person sitting on the toilet. She
described the person as a " black male" who did not
say anything to them or look at them when they opened the
bathroom door. (Doc. 98-8, Ex. 5 at 05:30-06:10.) Ms. Thomas
told the Dispatcher: " [W]e don't know if it's
the person that owns the house, that . . . may be sick or
something, or . . . what's going on." (Doc. 98-8,
Ex. 5 at 01:39-01:45.) The Dispatcher did not hear this
statement at that time, although she conceded in her
deposition that the statement can be heard on the recording
of the 911 call. ( See Doc. 84-1 at 15-16, Leinoff
Dep. at 28:14-29:4.)
Thomas repeatedly informed the Dispatcher she had never seen
or met the owner of the residence, and she further stated
that she did not know the resident's name. ( See,
e.g., Doc. 98-8, Ex. 5 at 06:18; see also Doc.
98-6 at 2, Thomas Dep. at 16:3-5.) She also stated that she
had not seen the male leave the residence. When asked by the
Dispatcher if the house was ransacked, Ms. Thomas replied
that " it looked messy on the first floor."
(Doc. 98-8, Ex. 5 at 04:13-04:25.) When asked if the
housekeepers had keys to the condominium, Ms. Thomas replied
that her boss had keys, that the residence was unlocked, and
that she did not know " if they left it unlocked or if
someone broke in to it." (Doc. 98-8, Ex. 5 at
Moody was present when the Dispatcher
received the 911 call. The Dispatcher informed Sergeant Moody
that the call reported a person inside a residence at Stony
Creek, that the cleaning crew did not know " who the
person [was]," that there was smoke inside this
residence, and that the residence looked "
ransacked." (Doc. 84-1 at 17, Leinoff Dep. at 32:13-17;
see also Doc. 84-3 at 4, Moody Dep. at 7:4-9.) The
Dispatcher reported to Sergeant Moody that the cleaning crew
believed the unidentified man " may have broken
in." (Doc. 84-3 at 5, Moody Dep. at 12:13-22.) The
Dispatcher did not report to Sergeant Moody that Ms. Thomas
thought the man they observed in the bathroom might be "
sick or something" because she had not heard that
statement. (Doc. 84-1 at 18-20, Leinoff Dep. at 34:18-36:11.)
Although she was aware that Ms. Thomas did not know the owner
of this residence or his name, she did not report this
information to Sergeant Moody because she did not think this
information was relevant. Sergeant
Moody stated that if he had been told that Ms. Thomas
reported she did not know who lived there and the man in the
bathroom may be sick, he " may" have responded
differently by attempting " to determine who lived there
maybe from the neighbors" before entering the residence.
(Doc. 98-11 at 9-10, Moody Dep. at 17:23-18:12.) He also
conceded that he may have been able to discover that a black
male lived in the residence if he asked questions outside the
residence prior to entering it. ( See Doc. 98-11 at
19-20, Moody Dep. at 50:18-51:6.)
Adams and Peyton were in the squad room at the Hartford
police station when Sergeant Moody informed them that
Dispatch had received a 911 call regarding a burglary in
progress. Officer Adams was told that " the house looks
ransacked and that they believe he's still in the
house." (Doc. 84-8 at 3, Adams Dep. at 14:7-19.) Because
Officer Adams was not told that a housekeeper made the 911
call, she assumed that the call had been made by the owner or
resident reporting an unidentified person in his or her
residence. Officer Peyton was told that " a cleaning
lady inside the building . . . didn't recognize an
individual inside the building and that the place may be . .
. burglarized at this time." (Doc. 84-5 at 5, Peyton
Dep. at 8:11-16.)
the officers prepared for the call and were en route to the
scene, the Dispatcher was still on the 911 call. She spoke
with the owner of the housecleaning service, Jennifer Dean,
who stated that she planned to enter the residence to
ascertain what had happened because she did not want to get
in " trouble" and lose the " job." (Doc.
98-8, Ex. 5 at 06:50-07:03.) She stated that she did not know
why her crew had not waited for her arrival before calling
911. (Doc. 98-8, Ex. 5 at 06:50-07:03.) The Dispatcher told
her, " Do not go in right now," to which Ms. Dean
replied, " I don't even know why they called
you." (Doc. 98-8, Ex. 5 at 08:01-08:19.) Ms. Dean
informed the Dispatcher that she knew the owner of the
residence and that his name was " Wayne." (Doc.
98-8, Ex. 5 at 08:02.) After several minutes of conversation
between the Dispatcher and Ms. Dean, the officers arrived at
Plaintiff's condominium complex. The Dispatcher did not
update the officers regarding the resident's name or that
Ms. Thomas reported that the bedroom was no longer smoking.
The Hartford Officers' Response at the
Peyton arrived first on the scene and encountered Ms. Thomas,
Ms. Dean, and an unidentified male standing outside
Plaintiff's residence which is located in a condominium
complex. Officer Peyton spoke with Ms. Thomas, who reported
that " there's a man in the building, I don't
know who he is, the place looks ransacked[,] and I'm
scared." (Doc. 84-5 at 10, Peyton Dep. at 21:14-19.)
Officer Peyton spoke with Ms. Thomas for approximately twenty
seconds. He did not ask Ms. Thomas who owned or lived in the
residence or ask for a description of the
homeowner or resident. He knew, however, that Ms. Thomas did
not reside there. In deposition, Officer Peyton acknowledged
that it would be " important" to know who lived in
the residence. (Doc. 98-13 at 8-9, Peyton Dep. at
38:20-39:1.) While Ms. Thomas never stated that she believed
the man in the residence was a burglar, Officer Peyton "
surmised" he was based on Ms. Thomas's description
that the residence was " a mess" and " looked
ransacked." (Doc. 84-5 at 12-13, Peyton Dep. at
Moody, the second Hartford officer to report to
Plaintiff's residence, did not speak with Ms. Thomas.
Officer Peyton, however, relayed to Sergeant Moody that Ms.
Thomas advised that she was part of a cleaning crew for the
residence and did not know the male inside. Sergeant Moody
knew that Ms. Thomas was not the owner or resident, but he
" assume[d] that if she cleans there she knows who lives
there." (Doc. 98-11 at 12, Moody Dep. at 30:11-16.)
While he was not sure if Ms. Thomas reported that it looked
like a burglary, he was aware that Ms. Thomas had told
Officer Peyton that " [i]t looks like somebody broke in
or [it] was ransacked." (Doc. 98-11 at 12, Moody Dep. at
30:19-20.) Sergeant Moody did not ask who lived in or owned
the residence, did not ask for a description of that person,
and did not ask the bystanders if they knew the resident or
owner. ( See Doc. 84-3 at 7, Moody Dep. at 16:1-20.)
Adams arrived on the scene thereafter. She did not speak with
the three individuals standing outside Plaintiff's
residence. Officer Adams had " no idea" who Ms.
Thomas was (Doc. 98-16 at 4), but she assumed that Ms. Thomas
lived at the residence and that Ms. Thomas " must know
who belonged in there and who didn't[.]" (Doc. 84-8
at 4, Adams Dep. at 17:15-22.) Officer Adams testified that
she did not believe the circumstances warranted further
Dean was standing outside with Ms. Thomas when the officers
arrived. None of the officers asked Ms. Dean if she knew who
owned or lived at the residence. The officers also did not
speak with any of the other residents of the condominium
complex or bystanders regarding whether they knew the
occupant, although the video recording depicts various
bystanders watching the incident unfold.
Peyton drew his firearm and proceeded to walk up the steps to
a small landing in front of the front door to Plaintiff's
residence. Officer Adams approached the stairs behind him,
confirmed with Ms. Dean and Ms. Thomas that the unidentified
man was upstairs, and instructed Ms. Dean, Ms. Thomas, and
other male individual to calm down and to remain outside.
Officer Adams then drew her firearm, prompting either Ms.
Dean or Ms. Thomas to ask, " Why do you have a gun
out?" (Tr. at 3:5.) Officer Adams testified that she
was not surprised by the question because people ask her
" that all the time" and " people innately can
be threatened just by the presence of the gun." (Doc.
84-8 at 6-7, Adams Dep. at 19:16-20:5.) Officer Peyton
replied: " It's just that I don't know who the
hell this guy is. . . . I don't know this guy." (Tr.
Moody retrieved a service rifle from his vehicle and
thereafter joined Officers Adams and Peyton on the front
landing. The three officers conferred and agreed that the man
might still be in the upstairs bathroom. There was no sign
from the front of Plaintiff's residence of a forced
the officers entered Plaintiff's residence, Bob McKaig,
Plaintiff's neighbor, emerged from his residence. As he
stood on his own landing adjacent to Plaintiff's landing,
he asked the officers if they were " trying to get
Wayne?" (Tr. at 3:18.) Ms. Thomas can be heard stating:
" We went in there. We were scared." (Tr. at 3:20.)
As the officers opened Plaintiff's front door, a fire
alarm can be heard emanating from inside Plaintiff's
residence. Mr. McKaig told the officers: " They found
him in -- a couple weeks ago unconscious upstairs. You might
want to check the bedroom." (Tr. at 3:23 25.) Ms. Thomas
can be heard stating: " We got scared, see. . . . We got
scared. When we got in there, it looked ransacked." (Tr.
at 4:5-6.) None of the officers attempted to speak with Mr.
McKaig before entering Plaintiff's residence. They
provided varying accounts regarding whether they heard him
advise them of Plaintiff's prior medical event.
officers entered Plaintiff's residence with their guns
drawn at a low ready position. On the second floor, it was
smoky, fire alarms were going off, there was a pan with
burned food in the kitchen, and the kitchen faucet was
running. (Doc. 84 at 9, ¶ ¶ 60, 62.) One officer
removed the pan from the stove. There were " no threats
visible on the second floor," (Doc. 98-33 at 3), "
no visible fire," (Doc. 84 at 9, ¶ ¶ 63, 65),
and nothing was " actively burning." (Doc. 98-3 at
9-11, ¶ ¶ 60, 63, 65.) Officer Adams believed the
second floor looked " messy," but not ransacked,
and that the mess she observed was common and not out of the
ordinary for a residence. (Doc. 84-8 at 11, Adams Dep. at
officers proceeded to the third floor of Plaintiff's
residence, which was also smoky. Officer Peyton believed the
smoke was coming from another room because he did not see
anything on fire or smoldering in the master bedroom, which
was Plaintiff's bedroom. Officer Peyton described the
master bedroom as " a little messy" with some
clothes on the floor and an unmade bed. (Doc. 98-13 at 13,
Peyton Dep. at 46:1-17; accord Doc. 98-33 at 4.) In
contrast, Officer Adams described Plaintiff's bedroom as
" a very messy room, clothes just thrown everywhere,
garbage everywhere, drawers pulled open," with "
stuff' that was " hanging out of drawers[.]"
(Doc. 84-8 at 12-13, Adams Dep. at 27:22-28:3.) Officers
Adams did not observe a fire in Plaintiff's bedroom and
could not locate " the source of smoke." (Doc. 84-8
at 13, Adams Dep. at 28:4-8.)
Moody entered another bedroom on the third floor which was
Plaintiff's daughter's room. Sergeant Moody described
this room as " messy and in disarray" with "
things on the floor and clothing on the floor" like
" somebody had gone through things." (Doc. 84-3 at
14, Moody Dep. at 36:3-21.) In deposition, he agreed that the
room's appearance would not be unusual for a child's
bedroom if the officers had known that at the time. Apart
from the " disarray" on the second and third
floors, the officers did not observe any weapons or drugs,
any tools associated with burglary, or other evidence
consistent with a burglary, such as belongings collected and
prepared to be removed from the residence. (Doc. 98-11 at 13,
Moody Dep. at 34:6-23; accord Doc. 98-13 at 14-15,
Peyton Dep. at 47:17-48:8.)
Peyton approached Plaintiff's third floor bathroom, where
the officers had been told the man was located. They observed
a naked African-American male, later identified as Plaintiff,
sitting on the toilet. (Doc. 98-3 at 12, ¶ ¶
67-68.) Officer Peyton noted that Plaintiff was "
profusely sweating" and had a " thousand yard stare
looking at [Officer Peyton], kind of like looking through
[him]." (Doc. 84-5 at 23, Peyton Dep. at 49:15-20.)
further described Plaintiff's eyes as rolling in the back
of his head. Based on Plaintiff's physical appearance,
Officer Peyton believed he may have been in a "
drug-induced state" at that time. (Doc. 84-5 at 24,
Peyton Dep. at 50:8-11.) Officer Peyton immediately yelled:
" Throw your f***king hand[s] up or I'll shoot you,
mother f***er. Put your hands up now. About to bum. Show me
your f***ing hands." (Tr. at 5:18-21.)
Officer Adams heard Officer Peyton's command, she left
the master bedroom and entered the doorway to the third floor
bathroom with her weapon drawn. She observed Plaintiff
sitting on the toilet, sweating profusely, with his eyes open
and looking at the officers but " staring straight
at" and " [r]ight through" them. (Doc. 84-8 at
15, Adams Dep. at 30:2-3, 18-21.) She believed based on
Plaintiff's physical appearance that Plaintiff was "
on drugs and he's either suicidal and about to shoot
himself or something really bad is about to happen."
(Doc. 84-8 at 15, Adams Dep. at 30:4-7.)
officers then issued a series of commands to Plaintiff:
Officer Adams: Get your hands up.
Officer Peyton: Get your hands up.
Officer Adams: Put your hands up.
Officer Peyton: Keep them up. Keep them up.
Officer Adams: Put your hands up.
Officer Peyton: Hands up. Keep your hands
Officer Adams: Put your hands up. Come on,
man. Put them up.
Officer Peyton: Put your hands up. Put your
Officer Adams: Put your hands up. You're
going to get shot. Put them up.
Officer Peyton: Put your hands up. Put your
f***ing hands up now.
(Tr. at 5:22-6:11.)
Plaintiff did not respond to the officers' repeated
commands even though he was looking " right" at the
officers, Officer Adams assumed he did not "
belong" at the residence and was " deliberately
disobeying," but she did not consider that Plaintiff may
be sick. (Doc. 84-8 at 15-16, 20, Adams Dep. at 30:12-21,
34:19, 38:1-7.) Officer Peyton also did not consider that
Plaintiff could be sick and that Plaintiff might be incapable
of complying with their commands. (Doc. 84-5 at 25, 40-41,
Peyton Dep. at 51:1-5, 74:21-75:4.) Officer Peyton, however,
did not believe that Plaintiff was " deliberately
disobeying" the officers' commands because he
assumed Plaintiff was on drugs. (Doc. 84-5 at 31, Peyton Dep.
officers did not ask Plaintiff, who was non-communicative, to
identify himself. Officer Adams assumed " that if he
lives in the residence . . . that he would say[,] hey, this
is my house." (Doc. 84-8 at 17, Adams Dep. at 35:3-7;
see also Doc. 84-5 at 27, Peyton Dep. at 55:18-21.)
Officers Adams and Peyton agree that, at this point,
Plaintiff was not violent towards them " in any
way[.]" ( See, e.g., Doc. 84-5 at 27, Peyton
Dep. at 55:9-14.) Officer Adams also believed that Plaintiff
had not threatened her, although she stated that she felt
threatened by his non-compliance with their repeated
commands. (Doc. 84-8 at 19, Adams Dep. at 37:1-14.)
Moody then arrived at the doorway to the bathroom and
likewise observed Plaintiff sitting naked on the toilet with
a " look that looked right through you." (Doc. 84-3
at 16-17, Moody Dep. at 41:21-42:5.) He described
Plaintiff's body as coated with a " sheen like it
was sweaty or wet." (Doc. 84-3 at 16, Moody Dep. at
41:22-23.) Sergeant Moody did not see
Plaintiff " make any effort" to attack the
officers, flee, or evade arrest, and Plaintiff was not
violent towards them " in any way." (Doc. 84-3 at
17, 26, Moody Dep. at 42:13-18, 60:7-61:13.) Sergeant Moody
nonetheless believed Plaintiff was acting in a " passive
aggressive" manner because Plaintiff was not following
their verbal commands. (Doc. 84-3 at 17, 26, Moody Dep. at
42:13-18, 60:7-61:13.) It did not " occur" to
Sergeant Moody that Plaintiff might have been sick, but he
did consider that Plaintiff " may have been under the
influence of some illegal narcotic." (Doc. 84-3 at 17,
Moody Dep. at 42:21-23.) All three Hartford officers surmised
Plaintiff was under the influence of drugs based solely on
his physical appearance.
he was unable to call out from inside Plaintiff's
residence, Sergeant Moody left to contact the Hartford Fire
Department and to request an ambulance for Plaintiff since
Sergeant Moody believed Plaintiff was " under the
influence of some type of drug." (Doc. 84-3 at 19, Moody
Dep. at 47:9-15.) While Sergeant Moody was outside
Plaintiff's residence he discovered that " a black
male lived in the condominium and had medical issues."
(Doc. 84 at 17, ¶ 128.) Sergeant Moody did not
immediately relay this information to his fellow officers who
were confronting Plaintiff inside his home at gunpoint.
Sergeant Moody was outside, Officers Adams and Peyton
remained upstairs with Plaintiff in the third floor bathroom.
When Plaintiff remained non-responsive to their commands,
Officer Peyton sprayed Plaintiff twice in the face with
oleoresin capsicum (" OC" ) spray, commonly known
as pepper spray. The officers were in Plaintiff's
residence for approximately three minutes before encountering
him and approximately one minute elapsed between their
locating Plaintiff and their use of pepper spray.
the two applications of pepper spray, Plaintiff started
coughing, stood up, stumbled backwards, and fell onto the rim
of the bathtub or into it. Plaintiff then again stood up. The
officers, who were standing in the doorway, ordered
Plaintiff, approximately eighteen times, to " [g]et on
your stomach," to " [d]o it now," and to
" [b]ackup." (Tr. at 8:3-9:3.) Officer Peyton also
stated: " We'll take care of you." (Tr. at
Plaintiff had not obeyed their commands and was instead
" walking towards" them, the officers assumed that
Plaintiff was going to attack them. (Doc. 84-5 at 45, Peyton
Dep. at 80:5-22.) At this point, Plaintiff had made no overt
violent gestures. In deposition, Officer Peyton acknowledged
that Plaintiff had not threatened him " in any
way." (Doc. 84-5 at 46-47, Peyton Dep. at 81:15-82:1.)
The officers were aware that Plaintiff had no weapons in his
hands or on his person. As Plaintiff approached them, the
officers decided that they needed " to go hands on, get
control of the [P]laintiff, detain him and then -- once it
was safe -- move forward." (Doc. 84 at 14, ¶ 103.)
Peyton reached for Plaintiff's right arm, and Officer
Adams reached for Plaintiff's left arm. They again issued
a series of commands to Plaintiff:
Officer Peyton: [Unclear] now. Get your
hands behind your f***ing back.
Officer Adams: [Unclear]. Get the [unclear].
Officer Peyton: Put your hands behind your
back. Do it now.
Officer Adams: Get the other arm behind his
Officer Peyton: Get your arm behind your
Officer Adams: Get it behind your back.
Officer Peyton: Put your hands behind your
back. . . . Come on. Now give me the other one.
(Tr. at 9:4-9:13.)
Officer Adams secured one handcuff to Plaintiff's left
wrist, the officers believed that Plaintiff resisted being
handcuffed. This led to a physical altercation between the
officers and Plaintiff which is the subject of varying
accounts. The officers agree that Plaintiff either pushed or
pulled away from them, prompting Officer Adams to fall to the
floor with Plaintiff either standing over her, straddling
her, or on top of her. The officers testified that they were
concerned that Plaintiff could reach for Officer Adams's
firearm or use the handcuffs she no longer controlled as a
weapon. Officer Adams believed Plaintiff was "
going" for her hands and " grabbing" at them.
(Doc. 84-8 at 26-27, Adams Dep. at 45:18-46:11.) Officer
Peyton did not observe Plaintiff trying to punch, strangle,
or fight Officer Adams. (Doc. 98-13 at 30, Peyton Dep. at
85:9-22.) Plaintiff did not try to punch or strike Officer
Peyton, although he grabbed for him once, which prompted
Officer Peyton to strike Plaintiff's left arm with his
officers repeatedly ordered Plaintiff to put his arms or arm
behind his back, Officer Peyton used his baton to strike
Plaintiff's left thigh area five to seven times and his
left bicep area at least once. (Doc. 84 at 16, ¶ ¶
121-23.) After being struck with the baton, Plaintiff went to
the ground facedown, lying on his stomach. Officer Peyton
kneeled to grab Plaintiff's arms to finish handcuffing
him, but the officers claim that they were unable to restrain
Plaintiff. Officers Peyton and Adams yelled for Sergeant
Moody to help them, and they stated they could not breathe
due to the discharge of OC spray.
response, Sergeant Moody returned to the third floor of
Plaintiff s residence. There, he assisted the other officers
in restraining Plaintiff's arms behind his back and
handcuffing him using two sets of handcuffs. Officer Adams
then asked where Plaintiff lived, and Sergeant Moody replied,
" [h]ere, apparently."  (Tr. at 10:13-14.)
Officer Adams stated, " Here? . . . Are you
serious?" (Tr. at 10:17.) At that point, Officer Adams
believed it was imperative to quickly remove Plaintiff from
his residence because of their use of OC spray and because it
remained smoky upstairs. She stated: " We've got to
get him out of here. Let's just get him out of here
quick. We've got to get him ...