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Burwell v. Peyton

United States District Court, D. Vermont

September 14, 2015

HARTFORD POLICE OFFICER FREDRICK PEYTON in his individual capacity and as an employee of the Town of Hartford, HARTFORD POLICE OFFICER SCOTT MOODY in his individual capacity and as an employee of the Town of Hartford, HARTFORD POLICE OFFICER KRISTINNAH ADAMS in her individual capacity and as an employee of the Town of Hartford, HARTFORD POLICE CHIEF GLENN CUTTING in his individual capacity, and TOWN OF HARTFORD for the negligence of Emily Leinoff and Martha Morse, Defendants

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          For Wayne Burwell, Plaintiff: Robin C. Curtiss, Van Dorn & Curtiss PLLC, Orford, NH.

         For 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.

         For 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, VT.

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         Christina Reiss, Chief United States District Judge.

         Plaintiff 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

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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 inside.

         Pending 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.

         Plaintiff 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. Carroll, Esq.

         I. Procedural Background.

         The 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.[1] 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.

         On May 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.

         Plaintiff's 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.

         Plaintiff's 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

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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.)

         Finally, 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.

         II. The Undisputed Facts.

         A. Plaintiff's Prior Medical Crisis.

         Prior 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." [2] (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 getting dressed.

         Mr. 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 hospital.

         B. The Housekeepers' Report to the Dispatcher.

         In 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 00:40.)

         One of the two housekeepers, Holly Thomas, subsequently spoke directly with the Dispatcher.[3] Ms. Thomas explained

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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.)

         Ms. 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." [4] (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 05:05-05:20.)

         Sergeant Moody[5] 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

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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.)

         Officers Adams and Peyton[6] 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.)

         While 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.

         C. The Hartford Officers' Response at the Scene.

         Officer 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

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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 25:23-26:15.)

         Sergeant 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.)

         Officer 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 investigation.

         Ms. 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.

         Officer 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.)[7] 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. at 3:6-9.)

         Sergeant 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 entry.

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          Before 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.

         The 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 26:3-15.)

         The 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.)

         Sergeant 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.)

         Officer 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.) Officer Peyton

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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.)

         When 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.)

         The 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 up.
Officer Adams: Put your hands up. Come on, man. Put them up.
Officer Peyton: Put your hands up. Put your hands up.
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.)

         Because 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. at 62:1-6.)

         The 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.)

         Sergeant 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

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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.

         Because 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.

         While 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.[8] 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.

         After 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 8:9.)

         Because 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.)

         Officer 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].

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Officer Peyton: Put your hands behind your back. Do it now.
Officer Adams: Get the other arm behind his back.
Officer Peyton: Get your arm behind your back.
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.)

         After 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 baton.

         As the 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.

         In 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." [9] (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 ...

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