17-1873-cv(L)
Chalco v. Belair et al.


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT
                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 20th day of June, two thousand eighteen.
PRESENT:
           PIERRE N. LEVAL,
           GERARD E. LYNCH,
           CHRISTOPHER F. DRONEY,
                       Circuit Judges.
______________________________________________
RENE CHALCO,
                       Plaintiff-Appellee,

                          v.                                         Nos. 17-1873-cv,
                                                                     17-1879-cv

CHRISTOPHER BELAIR, ROBERT MADORE, RYAN HOWLEY,
and ANDREW KATKOCIN,
                       Defendants-Appellants.
______________________________________________

   FOR PLAINTIFF-APPELLEE:                      BEVERLEY ROGERS (Jennifer Cranstoun, on
                                                the brief), Beverley Rogers Law Offices,
                                                LLC, Ridgefield, CT.




                                            1
    FOR DEFENDANT-APPELLANT                             THOMAS R. GERARDE (Beatrice S. Jordan
    BELAIR:                                             on the brief), Howd & Ludorf, LLC,
                                                        Hartford, CT.

    FOR DEFENDANTS-APPELLANTS                           MICHAEL CONROY, Hassett & George,
    HOWLEY, MADORE, and KATKOCIN                        P.C., Simsbury, CT.

       Appeal from a June 1, 2017, decision of the United States District Court for the
District of Connecticut (Bryant, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal of Defendants-Appellants Robert Madore, Ryan Howley,
and Andrew Katkocin, docket number 17-1879-cv, is DISMISSED, the decision of the
district court as to Defendant-Appellant Christopher Belair, docket number 17-1873-cv, is
AFFIRMED in part, and the case is REMANDED for further proceedings.

       Defendants-Appellants, who are officers in the City of Danbury Police Department,
brought these interlocutory appeals from the decision of the district court denying their
motions for summary judgment with respect to Plaintiff-Appellee Rene Chalco’s claims
pursuant to 42 U.S.C. § 1983. Defendants-Appellants contend the district court should
have concluded they were entitled to qualified immunity. We assume the parties’
familiarity with the underlying facts, the record of the prior proceedings, and issues on
appeal, and repeat them here only as necessary to explain our decision.

        At around 1:00 a.m. on March 8, 2013, Officers Belair, Madore, Howley, and
Katkocin conducted a traffic stop of a car Chalco was driving in Danbury, Connecticut.
According to Chalco, he had skidded through a stop sign because it was snowing heavily
that night. The officers concluded that Chalco had been drinking and that Chalco lacked
a valid driver’s license. Officer Madore issued Chalco a summons for operating a vehicle
without a license and failing to obey a stop sign. The officers did not conduct a field
sobriety test or breathalyzer test, nor did they issue Chalco a summons for driving while
intoxicated.

       Throughout the traffic stop, Chalco complied with the officers’ instructions. At
one point, Officer Belair threatened him, swore at him, and punched him in the face,
striking his lips and nose.1 Chalco began to bleed from his face enough that he was
swallowing blood, which later began to drip onto his clothing. Chalco did not receive
1
  Chalco testified that Belair stated he was upset because Belair concluded that Chalco was intoxicated and
said his family member had been the victim of an intoxicated motor vehicle operator.

                                                    2
medical treatment at the scene. The officers did not arrest Chalco, and permitted him to
leave after giving him a traffic ticket. However, the officers had Chalco’s car towed and
Chalco had to walk home in the snow, which took about an hour.

       Officer Belair claims he neither punched Chalco nor made any physical contact with
him at any time during the traffic stop, and that Chalco exhibited no signs that he had been
injured in any way.

       Chalco filed the operative, First Amended Complaint, on December 9, 2015 (the
“FAC”). The FAC asserted a claim for excessive force under 42 U.S.C. § 1983, and state
law claims for assault, battery, and intentional infliction of emotional distress against
Officer Belair. The FAC also asserted a claim against all four Defendants-Appellants
under § 1983 for “deliberate indifference to medical needs,” citing the Fourteenth
Amendment and alleging that “[t]he conduct of all Defendants in failing to summon
medical assistance” violated Chalco’s rights. App. at 21. Only the federal constitutional
claims are the subject of this appeal.

       Defendants-Appellants moved for summary judgment on November 28 and 30,
2016. Officer Belair filed his own motion, and the three other defendants filed a joint
motion. Officer Belair argued, among other things, that he was entitled to qualified
immunity on both of the § 1983 claims against him. In support of his motion, Belair
submitted a statement of undisputed facts pursuant to the District of Connecticut’s Local
Civil Rule 56(a)(1), which asserted that he did not strike, assault, or injure Chalco at any
time. Officers Madore, Howley, and Katkocin did not assert qualified immunity in their
motion for summary judgment. After being granted an extension of time, Chalco timely
opposed the motions on January 4, 2017, but filed his statement of facts in opposition to
summary judgment, required by the District of Connecticut’s Local Civil Rule 56(a)(2),
almost two weeks late, on January 17, 2017.

       The district court denied the motions for summary judgment on June 1, 2017. The
court noted the late filing of Chalco’s Rule 56(a)(2) statement, but stated that it would still
consider “facts asserted in [Chalco’s] Opposition where they are supported by timely-filed
evidence elsewhere in the record.” App. at 197–98. The court cited Chalco’s deposition
and other record materials in support of Chalco’s contention that Officer Belair punched
him in the face during the traffic stop and other factual claims made by Chalco.

       As to Chalco’s excessive force claim against Belair, the district court concluded that
summary judgment was not warranted because there was a genuine dispute of material fact
as to whether Belair punched Chalco, and there was no evidence to support the proposition

                                              3
that any use of force would have been reasonable. As to Chalco’s claim for deliberate
indifference to his medical needs, the court noted that Chalco was not a pretrial detainee
when Defendants-Appellants allegedly deprived him of medical treatment, but found that
Chalco raised a genuine dispute of material fact as to whether Defendants-Appellants
violated Chalco’s Fourteenth Amendment rights by towing his car and leaving him on the
side of the road in a snowstorm, under a state-created danger theory.2 App. at 205–08
(citing Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)). The district court’s decision
did not address qualified immunity as to any defendant or any claim.

       Officer Belair filed an interlocutory appeal of the denial of summary judgment on
June 12, 2017, which was assigned docket number 17-1873-cv here. Separately, on the
same day, Officers Madore, Howley, and Katkocin filed an interlocutory appeal of the
denial of summary judgment, which was assigned docket number 17-1879-cv here.
These appeals have been consolidated and are decided here together.

       We “may determine whether a defendant is entitled to qualified immunity on
stipulated facts . . . or on the facts favorable to the plaintiff . . . .” Bolmer v. Oliveria, 594
F.3d 134, 141 (2d Cir. 2010) (internal citation and quotation marks omitted).

       First, the appeal must be dismissed as to Officers Madore, Howley, and Katkocin.
These Defendants-Appellants did not plead qualified immunity as an affirmative defense3
or move for summary judgment on qualified immunity grounds before the district court,
and the district court did not address qualified immunity with respect to them in its June 1,
2017, opinion. See Blissett v. Coughlin, 66 F.3d 531, 539 (2d Cir. 1995) (“The defendant
bears the burden of pleading and proving the affirmative defense of qualified immunity.”).
Thus, as to these Defendants-Appellants, there is no denial of qualified immunity for us to
review, and we lack jurisdiction to consider any other aspect of the district court’s denial
of summary judgment to these Defendants-Appellants on interlocutory appeal.

       As to Officer Belair, the district court’s failure to consider his qualified immunity
defense does not deprive us of jurisdiction. See Ford v. Moore, 237 F.3d 156, 161 (2d
Cir. 2001). Unlike the other officer defendants, Belair properly raised the defense in his
summary judgment motion, so the district court effectively denied Belair qualified
immunity even though it did not explicitly consider it. See id.


2
    The “state-created danger” theory was not articulated in the FAC.
3
  The district court docket does not reflect that Defendants-Appellants filed any answers at all in this case,
as required by Rule 8(b) of the Federal Rules of Civil Procedure.

                                                      4
       However, Officer Belair’s appeal fails because he has not shown that he is entitled
to qualified immunity on the evidence favorable to Chalco. The gravamen of Belair’s
argument is that Chalco’s failure to submit a Rule 56(a)(2) statement means that Belair’s
version of events—that he did not strike or use any force on Chalco—is undisputed, and
that he is entitled to qualified immunity based on that version of events. Belair does not
argue that, even if he did strike or use force on Chalco as Chalco claims, he is entitled to
qualified immunity. Nor does Belair argue that the district court had no basis in the record
to conclude that he did use force against Chalco.

       The District of Connecticut’s Local Civil Rule 56(a) implements Federal Rule of
Civil Procedure 56(c)(1)’s requirement that parties to a summary judgment motion must
support their assertions with record evidence. Local Civil Rule 56(a)(1) requires the
movant to set forth, in separately numbered paragraphs that cite record evidence, “a concise
statement of each material fact as to which the moving party contends there is no genuine
issue to be tried.” D. Conn. L. Civ. R. 56(a)(1). Local Civil Rule 56(a)(2) requires the
party opposing the motion to file paragraph-by-paragraph responses admitting or denying
the facts set forth in the movant’s Rule 56(a)(1) statement, as well as a section containing
“Additional Material Facts” supported by record evidence that “the party opposing
summary judgment contends establish genuine issues of material fact precluding judgment
in favor of the moving party.” D. Conn. L. Civ. R. 56(a)(2).

        Although a district court is under no “obligation . . . to perform an independent
review of the record to find proof of a factual dispute” if the non-moving party fails to
designate specific facts showing a genuine dispute of material fact, Amnesty Am. v. Town
of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002), it may nevertheless perform such a
review if it so chooses, see Fed. R. Civ. P. 56(c)(3); Holtz v. Rockefeller & Co., 258 F.3d
62, 73 (2d Cir. 2001) (holding that a court “may in its discretion opt to conduct an assiduous
review of the record even where one of the parties has failed to file” the Southern District
of New York equivalent of a Rule 56(a)(2) statement (internal quotation marks omitted)).
That is what the district court did here: it undertook an independent review of the summary
judgment materials and concluded there was sufficient evidence to create a genuine dispute
of material fact about whether Officer Belair punched Chalco. We see no error in the
district court’s evaluation of these materials.

        Taking the evidence in the light most favorable to Chalco, as we must, with no
justification Belair punched Chalco in the mouth hard enough to draw blood, which
violated clearly established law. See Graham v. Connor, 490 U.S. 386, 396–97 (1989).
Accordingly, Belair has failed to show entitlement to qualified immunity with respect to
the excessive force claim.

                                              5
       Officer Belair also argues that the district court erred when it effectively denied him
qualified immunity as to the deliberate indifference claim because Chalco was not a pretrial
detainee, his injury was not sufficiently serious to support a constitutional violation, and
Belair had no way to know Chalco needed medical attention. As for the state-created
danger theory articulated in the district court’s opinion, Belair argues that, even under
Chalco’s version of events, the failure to provide Chalco transportation home in a
snowstorm was not a state-created danger because there was no affirmative act increasing
Chalco’s risk of harm, and in any event, he did not violate clearly established law.

       We observe that there is a substantial question whether the allegations of the FAC
or the evidence presented at summary judgment would support claims for “deliberate
indifference” or “state-created danger.” However, because the district court never
addressed qualified immunity below, we remand the case with instructions to rule on these
matters, if properly raised before the district court. See Francis v. Coughlin, 849 F.2d
778, 780 (2d Cir. 1988). In particular, remand is warranted here because the district
court’s decision raised the state-created danger theory sua sponte, and thus the parties did
not have an opportunity below to brief the issue of qualified immunity on that theory.

                                          * * *

        We have considered the parties’ remaining arguments and conclude that they do not
alter the disposition of these appeals. Accordingly, we DISMISS the appeal of Madore,
Howley, and Katkocin; we AFFIRM the district court’s denial of qualified immunity as to
the excessive force claim against Belair; and we REMAND the case for further
proceedings consistent with this order.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




                                              6
