United States District Court, D. Vermont
ENTRY ORDER GRANTING IN PART AND DENYING IN PART PARTIES' MOTIONS FOR RECONSIDERATION (DOCS. 127, 128)
CHRISTINA REISS, CHIEF JUDGE
This matter comes before the court on Motions for Reconsideration (Docs. 127, 128) filed by Hartford police officer Scott Moody ("Sergeant Moody") and Plaintiff Wayne Burwell. Sergeant Moody seeks "limited" reconsideration of the court's Opinion and Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (Doc. 126) (the "Order"), asking the court to hold that the amount of force he personally employed against Plaintiff was neither excessive under the Fourth Amendment nor tortious under state law. Plaintiff seeks reconsideration of the Order with respect to his false arrest claim (Count Three), claiming that at trial he will be able to testify as to his consciousness while confined. Both motions are opposed.
Plaintiff is represented by Robin C. Curtiss, Esq., Ines C. Rousseau, Esq., Jeffrey J. Larrimore, Esq., and Edward M. Van Dorn, Esq. The Town of Hartford and Town of Hartford police officers Kristinnah Adams ("Officer Adams"), Fredrick Peyton ("Officer Peyton"), and Sergeant Moody (collectively, "Defendants"), are represented by Nancy G. Sheahan, Esq., Kevin J. Coyle, Esq., Joseph A. Farnham, Esq., and James F. Carroll, Esq.
I. Procedural Background.
Plaintiff alleges that during the afternoon of May 29, 2010, Hartford Police Department officers pepper-sprayed and beat him with a baton in his own residence while he was experiencing a hypoglycemic event triggered by a medical condition. In connection with this incident, Plaintiff asserted claims under federal and state law against Hartford, the individual officers involved, and the police dispatchers on-duty at the time.
On September 14, 2015, the court granted in part and denied in part Defendants' motions for summary judgment, entering judgment in Defendants' favor with respect to all claims except Plaintiffs excessive force claim under 42 U.S.C. § 1983, and his state law claims of assault and battery and intentional infliction of emotional distress.
On October 28, 2015, the court granted the Town of Hartford's unopposed motion for clarification, making clear that it retained its municipal immunity under 24 V.S.A. § 901a as to all of Plaintiff s remaining claims.
II. Conclusions of Law and Analysis.
In the Second Circuit, the standard for reconsideration is "strict" and reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd, v.
Nat'l Mediation Bd, 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted). However, "reconsideration is [also] warranted" if "the earlier decision did not address the merits" of a particular claim or defense because "principles of judicial economy weigh in favor of addressing the claim at [the summary judgment] stage of the litigation." Shatney v. LaPorte, 2014 WL 7240522, at *3 (D. Vt. Dec. 18, 2014).
A. Whether the Force Employed by Sergeant Moody Was Excessive Under the Fourth Amendment or Tortious Under State Law.
Sergeant Moody asks the court to reconsider the Order, pointing out that it is undisputed he had "left [Plaintiffs residence] to contact the Hartford Fire Department and to request an ambulance for Plaintiff.]" (Doc. 126 at 13.) Because it is uncontested that Sergeant Moody was not present when Officers Peyton and Adams pepper sprayed and allegedly beat Plaintiff, the court will reconsider whether he is entitled to qualified immunity with regard to Plaintiffs remaining claims. See United States v. Aguiar, 2011 WL 976496, at * 1 (D. Vt. Mar. 16, 2011) (granting reconsideration where defendant "identified matters that escaped the attention of the [c]ourt during its initial consideration").
The doctrine of qualified immunity protects government officials, including law enforcement officers, "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." McEvoy v. Spencer, 124 F.3d 92, 97 (2d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The right to be free from excessive force is clearly established, Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000), and thus the only issue is whether Sergeant Moody reasonably believed he acted lawfully under the circumstances. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 n.7 (2d Cir. 2003) (observing that in excessive force cases, the qualified immunity inquiry ultimately "converge[s] on one question: Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful").
Sergeant Moody argues that he did not use excessive force or commit an assault on Plaintiff because he used "minimal force" to handcuff Plaintiff and escort him from his residence, and because he neither participated in nor observed any other use of force against Plaintiff. Plaintiff nonetheless claims that as the senior officer on the scene, Sergeant Moody is still liable for the altercation inside the residence because he failed to intervene to prevent the allegedly unlawful use of force by Officers Peyton and Adams. "A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). "Failure to intercede to prevent an unlawful arrest can be grounds for § 1983 liability." Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997). "In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). In O'Neill, the Second Circuit reasoned that an officer who witnessed other officers punching a handcuffed arrestee was liable because "[h]aving seen the victim beaten, he was alerted to the need to protect [him] from further abuse." O'Neill, 839 F.2d at 12. Sergeant Moody, however, did not observe Officer Adams and Officer Peyton pepper spray and allegedly beat Plaintiff, and therefore could not have protected Plaintiff. Accordingly, he is not liable under § 1983 for failing to intervene.
As to Sergeant Moody's participation in the handcuffing of Plaintiff, although the Second Circuit has held "handcuffing [is] not per se reasonable" to effect an arrest, it has also held that "[n]either the Supreme Court nor the Second Circuit has established that a person has the right not to be handcuffed in the course of a particular arrest, even if he does not resist or attempt to flee." Soares v. State of Conn., 8 F.3d 917, 921-22 (2d Cir. 1993). Sergeant Moody was thus entitled ...