Nuzzo v. Devine

     20-3911-cv
     Nuzzo v. Devine


                            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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   8th day of October, two thousand twenty-one.
 4
 5   PRESENT:
 6               DEBRA ANN LIVINGSTON,
 7                     Chief Judge,
 8               DENNIS JACOBS,
 9               RICHARD J. SULLIVAN,
10                     Circuit Judges.
11   __________________________________________
12
13   Jeffrey Nuzzo,
14
15                           Plaintiff-Appellant,
16
17                     v.                                                       20-3911
18
19   Sergeant Devine, 148, Trooper Warren, 649,
20
21                     Defendants-Appellees.
22   __________________________________________
23
24   FOR PLAINTIFF-APPELLANT:                         Jeffrey Nuzzo, pro se, North Haven, CT.
25
26   FOR DEFENDANTS-APPELLEES:                        Robert B. Fiske, III, Carmel A. Motherway,
27                                                    Assistant Attorneys General, Clare Kindall,
28                                                    Solicitor General, for William Tong, Attorney
29                                                    General of Connecticut, Hartford, CT.
30
 1          Appeal from a judgment of the United States District Court for the District of Connecticut

 2   (Meyer, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Through counsel, Jeffrey Nuzzo sued Connecticut State Police Sergeant Mark Devine and

 6   Trooper Matthew Warren, asserting excessive force claims under 42 U.S.C. §§ 1983 and 1988,

 7   based on their failure to intervene when two police dogs—at the direction of two other state

 8   troopers not named as defendants—secured him during an arrest at his home. During his bench

 9   trial, Nuzzo testified that he had peacefully surrendered to the arrest and that the defendants and

10   others held him on the ground while the dogs attacked him. The defendants and other troopers

11   present at the scene testified that Nuzzo was resisting arrest, not obeying commands, and was

12   believed to be armed. The district court credited the accounts of the defendants (and the other

13   troopers who testified) as to what transpired, expressly declined to credit Nuzzo’s contrary

14   account, and granted judgment for the defendants. The court held that Nuzzo had failed to

15   demonstrate by a preponderance of the evidence that the dogs’ attack was an excessive use of force

16   in violation of the Fourth Amendment or, even if it was, that the defendants acted unreasonably by

17   failing to intervene. See Nuzzo v. Devine, 494 F. Supp. 3d 232 (D. Conn. 2020). Nuzzo, now

18   proceeding pro se, appeals. 1 We assume the parties’ familiarity with the underlying facts, the

19   procedural history of the case, and the issues on appeal.


     1
       Nuzzo also moves to supplement the record on appeal with new evidence. Upon due
     consideration, that motion is DENIED. See Loria v. Gorman, 306 F.3d 1271, 1280 n.2 (2d Cir.
     2002) (“Ordinarily, material not included in the record on appeal will not be considered.” (citation
     omitted)).

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 1          We review a district court’s findings of fact after a bench trial for clear error and its

 2   conclusions of law de novo. Process Am., Inc. v. Cynergy Holdings, LLC, 839 F.3d 125, 141 (2d

 3   Cir. 2016). On clear error review, we may not second guess a trial court’s credibility assessments.

 4   Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d 130, 138 (2d Cir. 2018). “Where there are two

 5   permissible views of the evidence, the factfinder’s choice between them cannot be clearly

 6   erroneous.” Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).

 7          We reject Nuzzo’s argument that the district court erred by crediting the testimony of the

 8   defendants and other defense witnesses, which Nuzzo argues was false and inconsistent with other

 9   evidence. The troopers consistently testified that Nuzzo did not obey loud, repeated commands

10   to show them his hands and get on the ground, and that even when he was brought to the ground

11   and commanded to “stop resisting,” he resisted being handcuffed by placing his hands under his

12   body and rolling from side to side.

13          Contrary to Nuzzo’s arguments on appeal, the photographic evidence and medical records

14   in evidence do not show that the district court clearly erred in crediting this testimony. Notes

15   from the Middlesex Hospital emergency room state that when Nuzzo arrived at the hospital, he

16   had nine puncture wounds and many abrasions on his left lower back. Photographs submitted by

17   Nuzzo at trial likewise show numerous scratch wounds across his back. It is undisputed that these

18   injuries occurred when two police officers—but not, Nuzzo concedes, the defendants in this case—

19   instructed their police dogs to secure Nuzzo. Nuzzo argues that this evidence contradicts the

20   troopers’ version of events because (according to Nuzzo) the bite wounds he suffered are

21   inconsistent with the troopers’ testimony that he was resisting arrest when the officers directed

22   their dogs to secure him. But we are not convinced that there is any discrepancy between the

                                                     3
 1   troopers’ testimony and this evidence—much less any discrepancy that would permit us to

 2   conclude that the district court clearly erred in crediting the troopers’ testimony.

 3           The only legal argument in Nuzzo’s opening brief concerns qualified immunity, an issue that

 4   the district court did not reach because it concluded that the defendants had not used excessive force

 5   against in Nuzzo in violation of the Fourth Amendment. Nuzzo does not argue that the district court

 6   erred as a matter of law in finding that the defendants did not violate the Fourth Amendment and

 7   has thus waived any such argument. See Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998)

 8   (noting that although this Court affords pro se litigants “some latitude in meeting the rules

 9   governing litigation,” we “need not, and normally will not, decide issues that a party fails to raise

10   in his or her appellate brief” (citations omitted)).

11           In any event, we discern no legal error in the district court’s rejection of Nuzzo’s excessive

12   force claim. See Nuzzo, 494 F. Supp. 3d at 237 (citing Graham v. Connor, 490 U.S. 386, 397

13   (1989) & Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019)). Peace officers violate

14   the Fourth Amendment if they use more force than is “‘objectively reasonable’ in light of the facts

15   and circumstances confronting them” in effecting an arrest. Graham, 490 U.S. at 397 (citations

16   omitted). Application of this standard requires consideration of “the severity of the crime at issue,

17   whether the suspect poses an immediate threat to the safety of the officers or others, and whether

18   he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396 (citation omitted).

19   Courts must remain mindful that “police officers are often forced to make split-second

20   judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount

21   of force that is necessary in a particular situation.” Id. at 397. Given the district court’s factual

22   findings, its application of this legal standard was clearly correct.

                                                        4
1           We have considered Nuzzo’s remaining arguments and find them to be without merit.

2   Accordingly, we DENY the motion to supplement the record and AFFIRM the judgment of the

3   district court.

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




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