# Duche v. McAllister

> District Court, D. Connecticut · March 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10099576

## Case

- **Court:** District Court, D. Connecticut
- **Decided:** March 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10099576

## How later opinions describe it (automated extraction)

- holding that the use of “substantial force” against a defendant, “absent any physical resistance or attempt to flee, violated clearly established law.” (citing Brown v. City of New York, 798 F.3d 94, 102 (2d Cir. 2015)

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JORGE L. DUCHE ) CASE NO. 3:22-cv-00088 (KAD)
Plaintiff, )
)
v. )
)
RYAN MCALLISTER, ET AL. ) MARCH 20, 2024
Defendants. )

MEMORANDUM OF DECISION
RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 32)

Kari A. Dooley, United States District Judge:
This case arises out of the arrest of Plaintiff, Jorge L. Duche (“Plaintiff”) by members of
the Stamford Police Department on February 15, 2019. Plaintiff brings this civil rights action
pursuant to 42 U.S.C. § 1983 against Officers Cooper, Ligi, Mercado, Rainone, Sylva, Velez,
Vidal, McAllister, Becroft, Gelonesi, Landry, Pavia, Pennoyer and Rizzitello (collectively,
“Defendants”) and alleges that each used excessive force during and in relation to his arrest in
violation of the Fourth Amendment to the U.S. Constitution. Pending before the Court is
Defendants’ motion for summary judgment, which Plaintiff has opposed, in part. For the reasons
that follow, the motion is GRANTED as to defendants Cooper, Ligi, Mercado, Rainone, Sylva,
Velez, Vidal, Rizzitello and McAllister, and DENIED as to defendants Becroft, Gelonesi, Landry,
Pavia, and Pennoyer.
Standard of Review
The standard under which courts review motions for summary judgment is well
established. “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing
law,” while a dispute about a material fact is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
Significantly, the inquiry being conducted by the court when reviewing a motion for

summary judgment focuses on “whether there is the need for a trial—whether, in other words,
there are any genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Id. at 250. As a result, the moving party
satisfies his burden under Rule 56 “by showing . . . that there is an absence of evidence to support
the nonmoving party’s case” at trial. PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.
2002) (per curiam) (internal quotation marks omitted). Once the movant meets his burden, the
nonmoving party “must set forth ‘specific facts’ demonstrating that there is ‘a genuine issue for
trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “[T]he
party opposing summary judgment may not merely rest on the allegations or denials of his
pleading” to establish the existence of a disputed fact. Wright, 554 F.3d at 266; accord Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). “[M]ere speculation or conjecture as to the true
nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citations
omitted; internal quotation marks omitted). Nor will wholly implausible claims or bald assertions
that are unsupported by evidence. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Argus
Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986). “[T]here is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). “In deciding a motion for summary

judgment, the district court’s function is not to weigh the evidence or resolve issues of fact; it is
confined to deciding whether a rational juror could find in favor of the non-moving party.” Lucente
v. Int’l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002).
Facts and Procedural History1
The material events of February 15, 2019, began at approximately 12:30 p.m. when a loss
prevention agent at the Lord & Taylor retail store requested assistance from defendant Officer
McAllister in apprehending the Plaintiff, who was identified as having shoplifted from the store.
See Defs.’ Local Rule Statement (“Defs.’ LRS”), ECF No. 32-19 at ¶¶ 2–7. Plaintiff resisted being
taken into custody, a scuffle ensued, and the Plaintiff left the scene in his car.2 See id. at ¶¶ 8–17.
Officer McAllister had requested back up and then reported “officer down” and requested a “Code

3” response. See id. at ¶¶ 18–19. Plaintiff then led multiple units on an approximately two-mile
chase through downtown Stamford. See id. at ¶¶ 22–31. Eventually, the chase ended after Plaintiff
drove his car off of the road onto a grassy area, where it collided with multiple police vehicles, to

1 This summary is comprised of facts taken from the parties’ respective Local Rule 56(a) statements and derives
principally from those facts about which there is no dispute.
2 Plaintiff admits all material facts regarding his initial interaction with Officer McAllister to include that he
“struggled with” Officer McAllister and that when McAllister tried to push Plaintiff against the nearest wall for
leverage to handcuff him, Plaintiff pushed back, causing McAllister to fall backwards with Plaintiff landing on top
of him. The struggle continued with both Officer McAllister and the loss prevention employee attempting to restrain
Plaintiff. Ultimately, Plaintiff fled the scene after he pushed McAllister aside, causing him to fall and suffer a
significant injury to his ankle. See Defs. LRS at ¶¶ 8–17; Pl.’s Local Rule Statement (“Pl.’s LRS”), ECF No. 34-1. at
8–17.
include a head on collision with the vehicle in which Officers Cooper and Vidal were travelling.3
See id. at ¶¶ 32–38.
As will be discussed below, it is at this point in the narrative that the parties’ positions
diverge. Plaintiff asserts he was compliant with the officers who surrounded his car and ultimately

removed him from the car. Defendants assert that Plaintiff was not compliant with their commands
and that when they physically removed him from his car, he continued to resist arrest requiring the
force used to subdue him and place him in handcuffs.
Discussion
Section 1983: Excessive Force
Plaintiff alleges that Defendants violated his Fourth Amendment rights, as incorporated
against the states by the Fourteenth Amendment, see Tenenbaum v. Williams, 193 F.3d 581, 602
n.14 (2d Cir. 1999), by using excessive force on February 15, 2019. “The Fourth Amendment
prohibits the use of unreasonable and therefore excessive force by a police officer in the course of
effecting an arrest.” Jamison v. Metz, 541 F. App'x 15, 19 (2d Cir. 2013) (summary order) (internal

quotation marks omitted). “A police officer violates the Fourth Amendment if the amount of force
he uses in effectuating an arrest is objectively unreasonable in light of the facts and circumstances
confronting the officer.” Lennox v. Miller, 968 F.3d 150, 155 (2d Cir. 2020) (internal quotation
marks and alterations omitted).
“Determining whether the force used to effect a particular seizure is reasonable under the
Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing governmental interests at

3 There are disputes about the extent to which Plaintiff ran red lights or stop signs or whether it was Plaintiff or the
police who caused the vehicle collisions. The jury can assess these issues and determine what, if any, bearing it has
on the ultimate question of excessive force. See Defs.’ LRS at ¶¶ 25–26, 32; Pl.’s LRS at ¶¶ 25–26, 32.
stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks omitted). More
specifically, “[a] determination of whether the force used was reasonable requires careful attention
to the facts and circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Miller, 968 F.3d at 155
(internal quotation marks omitted). Importantly, “[t]he reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396 (internal quotation marks omitted). Thus, “[t]he
calculus of reasonableness must embody allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Id. at 396–97. “In
sum, the standard to be applied in determining whether the amount of force used exceeded the
amount that was necessary in the particular circumstances is reasonableness at the moment.”
Rogoz v. City of Hartford, 796 F.3d 236, 247 (2d Cir. 2015) (emphasis added; internal quotation

marks omitted).
“In light of the fact-specific nature of the inquiry on an excessive force claim, granting
summary judgment against a plaintiff on such a claim is not appropriate unless no reasonable
factfinder could conclude that the officers’ conduct was objectively unreasonable.” Miller, 968
F.3d at 155 (internal quotation marks and alterations omitted).
Officers McAllister, Cooper, Ligi, Mercado, Rainone, Sylva, Velez, and Vidal
Plaintiff advances no argument that the initial encounter with Officer McAllister involved
the use of excessive force. And the admitted facts regarding that encounter establish that Officer
McAllister’s use of force in attempting to arrest Plaintiff was objectively reasonable—albeit
insufficient to accomplish its purpose. See Defs.’ LRS at ¶¶ 1–17; Pl.’s LRS at ¶¶ 1–17. The motion
for summary judgment as to defendant McAllister is GRANTED.
Further, Plaintiff admitted that Officers Velez, Rainone, Mercado, Ligi and Sylva had no
involvement in Plaintiff’s physical apprehension, i.e., they did not use any force in affecting the

arrest, let alone excessive force. See Defs.’ LRS at ¶¶ 70–77; Pl.’s LRS at ¶¶ 70–77. On this basis,
these Defendants seek summary judgment as to the claims against them. Consistent with these
admissions, Plaintiff acknowledges their lack of involvement in his opposition to the motion for
summary judgment, Pl.’s Opp’n, ECF No. 34 at 2 (“It appears that some of the defendants,
although listed as participants, were not close enough to personally engage in beating the
plaintiff.”), and therefore only requests that the “the summary judgment motions of defendants
Rizzitello, Alvarez, Gelonesi, Pavia and Becroft” be denied. Id. at 8. The motion for summary
judgment as to Officers Velez, Rainone, Mercado, Ligi and Sylva is GRANTED.4 See Perez v.
City of New York, No. 20-CV-1359 (LJL), 2022 WL 4236338, at *9 (S.D.N.Y. Sept. 14, 2022)
(Granting a defendant’s motion for summary judgment on an excessive force claim based on the

undisputed fact that “[he] did not use any excessive force and did not observe any officer use
excessive force against [plaintiff].”).
Officers Cooper and Vidal did not participate in Plaintiff’s apprehension beyond driving
one of the vehicles with which Plaintiff collided. See Defs.’ LRS at ¶¶ 36–38; Pl.’s LRS at ¶¶ 36–
38. Plaintiff advances no argument that this collision amounted to excessive force.4 The motion
for summary judgment as to Officers Cooper and Vidal is GRANTED.

4 Plaintiff makes no argument that any of these defendants should remain in the case for their alleged failure to
intervene in the use of excessive force by others.
4 In fact, Plaintiff admitted that he collided head on with Officers Cooper and Vidal; that both officers were injured
as a result; and that prior to the collision Plaintiff’s vehicle was headed straight for Officer Rizzitello who was on
foot in the grassy area onto which Plaintiff had driven. Defs.’ LRS at ¶¶ 36–38; Defs.’ LRS at ¶¶ 36–38.
Officers Becroft, Gelonesi, Landry, Pavia, Pennoyer and Rizzitello
The video and affidavits submitted reveal that multiple officers were involved in
restraining and handcuffing Plaintiff. Preliminarily, the Court observes that the body worn camera
video came from Defendant Officer Rizzitello. See Ex. 1 (“Rizzitello BWC”) to Ex. Q to Defs.’

Mot. for Summ. J. (“Defs.’ MSJ”), ECF No. 32-17. Consistent with his affidavit, Officer
Rizzitello’s only physical engagement with Plaintiff was to briefly assist other officers in placing
Plaintiff’s left hand behind Plaintiff’s back at the very end of the encounter. See Rizzitello BWC
at 3:07. Officer Rizzitello made no other physical contact with Plaintiff, as is conclusively
established by the footage. The footage further establishes that Officer Rizzitello’s conduct was
objectively reasonable based upon the totality of the circumstances he encountered when he first
came upon Plaintiff. Indeed, “no reasonable factfinder could conclude that [Officer Rizzitello’s]
conduct was objectively unreasonable.” Miller, 968 F.3d at 155.5 The motion for summary
judgment as to Officer Rizzitello is GRANTED
As to the remaining defendants, the following additional facts are material. Officer Pavia

was a canine handler and worked with a canine officer named Pyro. See Defs.’ LRS at 47. When
officers surrounded Plaintiff’s vehicle, he did not comply with their command to get out of the
vehicle.6 See id. at ¶ 43. Officers tried to break the window without success. See id. at ¶ 45. Officers

5 Further, under a qualified immunity analysis, courts in this circuit have held that it is reasonable for officers to
handcuff arrestees in a manner that may cause pain, even if the arrestee complies with the officer’s efforts to arrest.
Swindell v. New York State Dep't of Env't Conservation, 371 F. Supp. 2d 172, 181 (N.D.N.Y. 2005) (citing Soares v.
State of Connecticut Dep't of Enviromental Protection, 8 F.3d 917, 922 (2d Cir.1993)).
6 Plaintiff denies this assertion and offers his own testimony in this regard. Pl.’s LRS at ¶ 43; Duche Dep., Ex. 3 to
Pl.’s Br. in Opp’n, ECF No. 34-4, at 45. However, the encounter is captured on body worn camera. The officers are
clearly heard and seen yelling to Plaintiff to get out of the vehicle. And while they do not wait terribly long before
opening the driver’s door and forcibly removing him, there is no indication that he intended to comply with these
commands. Further, Plaintiff pled guilty to, among other things, interfering with a police officer. On the date of his
plea and sentencing, Plaintiff’s defense lawyer explained “Even though the interfering charge is a lesser included
offense of the assault, they were two separate incidents involving different officers. And that the basis of the
interfering, it was recorded on video, is that he refused to get out of the car after he crashed the car. And that was the
basis of the interfering charge.” Ex. O (“Sentencing Transcript”) to Defs.’ MSJ, ECF No. 32-15, at 5–6. In
perceived Plaintiff’s car engine to be revving. See id. at ¶ 44. Plaintiff denies that he was revving
the engine. See Pl.’s LRS at ¶ 44. Officer Pavia opened the driver side door of Plaintiff’s vehicle
and commanded Pyro to apprehend Plaintiff. See Defs.’ LRS at ¶¶ 49–50. Pyro first bit Plaintiff’s
leg but then bit and held Plaintiff’s left arm. See id. at ¶¶ 51–52. Pavia, and others then physically

removed Plaintiff from the vehicle. See id. at ¶ 55.
Multiple officers submitted affidavits in which they aver that Plaintiff continued to resist
arrest; refused to be handcuffed; fought with officers who were trying to get his hands behind his
back while he was prone, face down on the ground next to his car. See, e.g., Becroft Aff., Ex. C to
Defs.’ MSJ, ECF No. 32-3, at 3; Pavia Aff., Ex. H to Defs.’ MSJ, ECF No. 32-8 at 3–4; Pennoyer
Aff., Ex. I to Defs.’ MSJ, ECF No. 32-9, at 3. In the video, the officers are seen using physical
force while attempting to handcuff the Plaintiff. See Rizzitello BWC at 2:17–3:28. The Officers
yell, among other things, “stop resisting” or “put your hands behind your back.” See id. at 2:40–
2:58. The video does not, however, reveal what Plaintiff was doing. He is surrounded by officers
and the video simply does not answer the question of whether he was resisting or not resisting the

efforts to handcuff him. Plaintiff testified that he was not resisting the officers at all when they
surrounded him and punched and kicked him. “They took me out of the car. They have my right
hand already handcuffed in the back. They threw me on the floor and that’s when they started
kicking me, punching me.” Duche Dep., Ex. 3 to Pl.’s Br. in Opp’n, ECF No. 34-4, at 45–46. He
continues: “I’m already—my right hand was already handcuffed in the back. … The dog already
bit me. The constantly stomping, stomping on this hand. Stomping on it. That’s how they broke—
they broke my middle finger and they broke this area on my phone right here. The broke it because
they were stomping on it. … [T]his cop… [gesturing] he’s multiple time he hits me. He’s

combination, the video and his guilty plea defeat any claim that there is a genuine issue of material fact as to
whether he complied with the officers’ commands to get out of the vehicle.
constantly hitting me with his feet, with his boot in my face, in my face he hit me. … And then…
Laudry [sic] …. threw himself on the floor and he grabbed my left … foot and he starts going like
this, playing with it trying to stomp it. And then he goes to my right ankle and he breaks my ankle
with his own hands. And then he bear hugs me. He chokes me.” Id. at 48.

The Court cannot, on this record, determine the objective reasonableness of the arresting
officers’ use of force as there is a genuine issue of material fact as to both the nature of the force
used as well as whether such force was necessary. Plaintiff testified that he was already fully
subdued before the force was used. And neither the video nor the officers’ affidavits conclusively
establish otherwise. Nor can the Court, on the present record, parse out the individual role that
each of the arresting officers had in subduing or apprehending Plaintiff. Accordingly, as to
defendants Pavia, Landry, Becroft, Pennoyer, and Gelonesi the motion for summary judgment is
DENIED.
Qualified Immunity
Alternatively, these arresting officers argue that they are entitled to qualified immunity.

“[Q]ualified immunity protects government officials from suit if ‘their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). “When a defendant invokes qualified immunity to support
a motion for summary judgment, courts engage in a two-part inquiry: whether the facts shown
‘make out a violation of a constitutional right,’ and ‘whether the right at issue was clearly
established at the time of defendant’s alleged misconduct.’” Taravella v. Town of Wolcott, 599
F.3d 129, 133 (2d Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815–16
(2009). “To be clearly established, a right must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Taylor v. Barkes, 575 U.S. 822,
135 S. Ct. 2042, 2044 (2015). “Rights must be clearly established in a ‘particularized’ sense, rather
than at a high level of generality, Grice v. McVeigh, 873 F.3d 162, 166 (2d Cir. 2017), and while
“a case directly on point” is not required, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
“Therefore, an official is entitled to qualified immunity if, considering the law that was
clearly established at the time, the official’s conduct was ‘objectively legally reasonable.’” Nazario
v. Thibeault, No. 3:21-cv-216-VLB, 2022 WL 2358504, at *8 (D. Conn. June 30, 2022) (quoting
Taravella, 599 F.3d at 133). “The objective reasonableness of an official’s conduct ‘is a mixed
question of law and fact.’” Id. “At the summary judgment stage, while a conclusion that an
official’s conduct ‘was objectively reasonable as a matter of law may be appropriate where there
is no dispute as to the material historical facts, if there is such a dispute, the factual question must
be resolved by the factfinder.’” Id.
Considering these standards, it is manifest that the merits of Plaintiff’s claim and the

question of qualified immunity overlap significantly, as both require an assessment of the objective
reasonableness of Defendant’s conduct. Diaz v. City of Hartford Police Dep't, No. 3:18-CV-01113
(KAD), 2021 WL 1222187, at *5 (D. Conn. Mar. 31, 2021). Indeed, in some excessive force cases,
the qualified immunity and Fourth Amendment issues converge on one question: “Whether in the
particular circumstances faced by the officer, a reasonable officer would believe that the force
employed was lawful.” Cowan ex rel. Est. of Cooper v. Breen, 352 F.3d 756, 764 n.7 (2d Cir.
2003).
It bears repeating that summary judgment is not appropriate in this highly fact specific
context unless “no reasonable juror could conclude that [Defendant’s] conduct was objectively
unreasonable.” Miller, 968 F.3d at 155. And further, that “while a conclusion that an official’s
conduct ‘was objectively reasonable as a matter of law may be appropriate where there is no
dispute as to the material historical facts, if there is such a dispute, the factual question must be
resolved by the factfinder.’” Nazario, 2022 WL 2358504, at *8.

The Court has determined above that there are issues of fact as to both the nature of the
force used and whether the use of such force was reasonable under the circumstances—the two
core inquiries in any excessive force claim. These issues will in turn depend on factual questions
such as: was Plaintiff kicked or “stomped;” was Plaintiff’s ankle broken by one officer’s deliberate
conduct; was Plaintiff compliant with officers after he was removed from his vehicle; did the
officers reasonably believe he might have a weapon; did Plaintiff actively resist the officers’ efforts
to physically restrain him with handcuffs. Officers’ affidavits stating that Plaintiff continued to
resist and refused to be handcuffed are contested by Plaintiff’s deposition testimony, as are the
officers’ descriptions of the type of force employed. Officer Rizzitello’s body worn camera
footage, though it conveys the general chaotic nature of the scene, does not resolve these factual

disputes. If Plaintiff’s testimony is credited by a factfinder, a reasonable jury could conclude that
officers’ use of force after Plaintiff was removed from his vehicle was unreasonable, and therefore
violated Plaintiff’s clearly established rights. See Cox v. Fischer, 248 F. Supp. 3d 471, 482
(S.D.N.Y. 2017) (holding that the use of “substantial force” against a defendant, “absent any
physical resistance or attempt to flee, violated clearly established law.” (citing Brown v. City of
New York, 798 F.3d 94, 102 (2d Cir. 2015)).
Conclusion
For the forgoing reasons, Defendants’ motion for summary judgment, [ECF No. 32] is
GRANTED as to defendants Cooper, Ligi, Mercado, Rainone, Sylva, Velez, Vidal, Rizzitello,
and McAllister and DENIED as to defendants Becroft, Gelonesi, Landry, Pavia, and Pennoyer.
The Clerk of the Court is directed to terminate defendants Cooper, Ligi, Mercado, Rainone,

Sylva, Velez, Vidal, Rizzitello, and McAllister.
SO ORDERED at Bridgeport, Connecticut, this 20th day of March 2024.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10099576. Public record. Not legal advice.