NATHANIEL M. GORTON, District Judge.
After consideration of plaintiff's objection thereto (Docket No. 90), Report and Recommendation is accepted and adopted.
COLLINGS, United States Magistrate Judge.
On August 8, 2011, plaintiff Joseph Lund ("Lund") filed a nine-count complaint against defendants Daniel Henderson ("Henderson"), John Walcek ("Walcek"), Thomas Joyce, in his capacity as Chief of Police of the Wareham Police Department ("Joyce"), and the Town of Wareham ("Wareham") arising out of the events that transpired on August 22, 2008. The claims alleged by the plaintiff include false arrest and false imprisonment (Count I); assault and battery (Count II); intentional infliction of emotional distress (Count III); violation of 42 U.S.C. § 1983 (Count IV); violation of civil rights under the Massachusetts Civil Rights Act, Mass. Gen. L. c. 12 § 111 (Count V); malicious prosecution (Count VI); abuse of process (Count VII); negligent supervision—municipal defendants (Count VIII); and violation of civil rights—municipal defendants (Count IX).
Approximately two years after the institution of this action, on September 9, 2013, the defendants filed a motion for summary judgment (# 62) accompanied by a memorandum of law in support (# 63), a concise statement of undisputed material facts with attached exhibits (# 64) and an affidavit of counsel (# 65). In due course the plaintiff filed an opposition to the motion for summary judgment (# 66
The following facts are gleaned from the defendants' statement of undisputed facts and the plaintiffs concise statement of material facts in dispute.
On August 22, 2008, Lund was in Dudley Square in Onset, Massachusetts, when he observed an unidentified man and woman yelling at each other across the street in front of the Onset Village Market. (# 64 ¶ 1) The pair got into a car and left the scene. (# 64 ¶ 1) There was also a group of teenagers congregated in the area in front of the market. (# 64 ¶ 2; # 72).
While Lalli continued to struggle with DeBarros with the assistance of Officer Leblanc ("Leblanc"), another Wareham police officer who had arrived at the scene, another teenager approached the officers demanding a cell phone from DeBarros. (# 72) This teenager was warned several times that she needed to back away or she would be arrested, but the teen continued loudly to yell her demands. (# 72) After a final warning that was ignored, she was arrested. (# 72).
After Dominic Alves was tased, his brother, Terrell Alves, rushed at Henderson, yelling and screaming; Henderson pulled out his pepper spray and ordered Terrell Alves to back off. (# 64 ¶¶ 8, 9) Terrell Alves retreated and began running around the square continuing to yell and scream in an attempt to incite the crowd. (# 64 ¶ 10) At this juncture, the scene was chaotic with the crowd being unruly. (# 64 ¶ 11) Lund was a witness to, not a participant in, this activity. (# 70 at 1).
As these events unfolded, the crowd continued to grow with some members of the crowd becoming disorderly and confrontational in their objections to the arrests being made. (# 72) The entire on-duty patrol shift and detective units of the Wareham Police responded as back-up to Onset Village, and mutual aid was requested from Bourne and the State Police to assist in restoring order. (# 72).
According to defendant Walcek, the melee at this point had grown to encompass Dudley Square, the park where the plaintiff was located. (# 64 ¶ 12) The plaintiff disputes this contention. (# 70 at 1) In his complaint Lund alleges that Terrell Alves came across the street and confronted him in the park. (# 1 ¶ 7; # 64 ¶ 13) Initially the plaintiff testified at his deposition that Terrell Alves did not say anything to him, but he later stated that Terrell Alves was waving his hands and yelling at him. (# 64 ¶ 14) According to Lund, he told Terrell Alves that his brother had been tased because he had assaulted a police officer. (# 64 ¶ 15) When speaking to Terrell Alves, the plaintiff had to raise his voice to be heard over the surrounding din, but he "wasn't yelling as much as [Terrell Alves] was yelling." (# 64 ¶ 15) At his deposition Lund admitted that he was "angry at the police" and "that's what [he] was complaining about." (# 64 ¶ 17) The plaintiff acknowledged that police are a trigger for his anger issues. (# 64 ¶ 17).
John Bullard, a witness who was with Lund in Dudley Square as the events of August 22, 2008 unfolded, testified at his deposition that the plaintiff was yelling at the police officers about their conduct. (# 64 ¶ 16) Lund disputes this statement.
In his complaint the plaintiff alleged that "[wjithout any reason ... defendant Henderson suddenly grabbed the plaintiff from behind and handcuffed the plaintiff." (#1 ¶ 8; #64 ¶ 20) Lund acknowledged that after he was placed in cuffs, he "probably swore" at Henderson. (# 64 ¶ 21) The plaintiff testified that, after putting him in cuffs, Henderson "dragged" him by the cuffs to the police cruiser, hit him on the head, pushed him down into the cruiser and shut the door. (# 64 ¶ 22) The handcuffs caused pain to his right wrist, and Lund complained about the injury to several officers on the night of the incident about it. (# 64 ¶ 23) On August 23, 2008, Lund sought medical treatment after speaking with an attorney (# 64 ¶ 38); the plaintiff disputes this fact, although he testified in his deposition that he "sought medical (sic) that day [August 23, 2008] after talking to Attorney Edward Wells." (# 64-1 at 90).
The following facts are disputed: The plaintiff testified that Walcek was the arresting officer but that he, Lund, never saw Walcek that day and he had no interaction with him. (# 64 ¶ 24) Walcek claims that he was, in fact, the arresting officer. (# 64 ¶ 25) According to Walcek, when interacting with Terrell Alves, Lund was using aggressive mannerisms, waving his arms and yelling.
None of the reporting officers stated that, prior to his arrest, Lund had in any way interfered with their law enforcement activities. (# 72, # 72-1, # 72-2) No police officer reported having heard the plaintiff utter any specific words to incite others to riot or to indicate his participation in the events that transpired in front of the Village Market. (# 72, # 72-1, # 72-2) Walcek did not see Lund attempt to assault anyone before he was arrested. (# 72-3 at 56) Other individuals who were arrested in Onset Village that evening had actively interfered with the responding police officers, but had been given warnings to disperse before they were arrested. (# 72, # 72-1, # 72-2) Walcek testified that he acted as he did:
# 72-3 at 60.
It is undisputed that Lund was charged with disorderly conduct and disturbing the peace. (# 64 ¶ 30; # 64-9) On October 23, 2008, the plaintiff signed a Tender of Plea or Admission & Waiver of Rights in connection with the criminal charges. (# 64 # 31; # 64-9) This form reads, in part, as follows:
I have decided to plead guilty, or admit to sufficient facts, freely and voluntarily upon the conditions which I have tendered in Section 1. My guilty plea or admission is not the result of force or threats, promises or other assurances.
#64 ¶ 31; #64-9.
The two charges were dismissed upon the payment of $200.00 in court costs, $100.00 per charge. (# 64 ¶ 32; # 64-9).
Henderson has been the subject of numerous complaints, and has a history of alleged false arrests and use of excessive force as a member of the Wareham Police force. (#68 ¶¶ 56-89; #72-12-72-24) Henderson has never been subjected to discipline by his supervisors. (# 72-5 at 32-33).
The purpose of summary judgment is "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 394 F.3d 40, 42 (1st Cir.2005) (internal quotations marks and citation omitted). When considering a motion for summary judgment, "a 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 a judgment as a matter of law." Fed. R.Civ.P. 56(a).
Once the moving party alleges the absence of all meaningful factual disputes, the non-moving party must show that a genuine issue of material fact exists. This showing requires more than the frenzied brandishing of a cardboard sword. The non-moving party must point to facts memorialized by materials of evidentiary quality and reasonable inferences therefrom to forestall the entry of summary judgment.
Certain Interested Underwriters at Lloyd's, London v. Stolberg, 680 F.3d 61, 65 (1st Cir.2012) (internal citations and quotation marks omitted); Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir.2006).
In determining whether summary judgment is proper, "a court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor." Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006); Guay v. Burack, 677 F.3d 10, 13 (1st Cir.2012). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "`Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))(further internal quotation marks omitted).
Although out of order numerically, the Court shall address the plaintiffs federal claims first, followed by his state law claims.
Lund alleges that defendants Henderson and Walcek violated his First, Fourth and Fourteenth Amendment rights by arresting him based on his non-threatening speech and gestures, and by arresting him without probable cause using excessive force in doing so. At the hearing on the dispositive motion, defense counsel argued that Henderson and Walcek were entitled to the entry of summary judgment in their favor because Lund's version of events was unbelievable. Of course, it is not within the province of the Court to make credibility determinations in the context of a motion for summary judgment; the veracity of a witness' testimony, as well as the weight to be accorded that testimony, is for the jury to decide. When asked if, accepting the plaintiffs testimony as true, genuine issues of material fact existed on the section 1983 claims in Count IV, defense counsel agreed that such disputes remain extant.
While admitting that genuine issues of material fact exist on Lund's civil rights claims, defense counsel nevertheless did contend that since Lund has identified Henderson as the police officer who put
# 64-1 at 62-3.
Walcek, on the other hand, claims that he is the police officer who handcuffed Lund, arrested him and walked him to the police cruiser on August 22, 2008. Based on the record, it is unclear what roles, if any, Walcek and Henderson played in the alleged violations of the plaintiffs civil rights. "The critical determination to be made" as between Lund and the two police officers is whether the plaintiff actually was arrested without probable cause and, secondly, whether excessive force was used. Williams v. Atkins, 333 F.Supp.2d 209, 213-14 (S.D.N.Y., 2004). The jury could credit the plaintiffs testimony that such violations did occur, but could find that he was mistaken as to which police officer was involved.
In short, "[n]either side has conclusive evidence establishing involvement or lack of involvement" of particular officers in the alleged constitutional violations. Crenshaw v. Rivera, 2009 WL 377985, at *20-l (N.D.Ill., Feb. 12, 2009). Because genuine issues of material fact exist, summary judgment on Count IV of the complaint, violations of 42 U.S.C. § 1983 against Henderson and Walcek, should be denied.
Defense counsel conceded at oral argument that, to the extent genuine issues of material fact exist on the plaintiff's
Defense counsel conceded at oral argument that, to the extent genuine issues of material fact exist on the plaintiffs section 1983 claim against the individual officers, so, too, would genuine issues of material fact exist on Lund's section 1983 claim against the municipal defendants, Town of Wareham and Chief of Police Thomas Joyce. See, e.g., Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In light of this concession, summary judgment should be denied on Count IX of the complaint.
Under Massachusetts law:
Sorenti v. Doyle, 2013 WL 1403489, at *4 (D.Mass., Apr. 4, 2013) (footnotes and citations omitted); Robinson v. Cook, 863 F.Supp.2d 49, 72 (D.Mass., 2012), affd, 706 F.3d 25 (1st Cir.2013), cert. denied, ___ U.S. ___, 133 S.Ct. 2831, 186 L.Ed.2d 885 (2013).
It has been determined that "[pjolice officers may be liable for this tort unless the police officer had a legal justification for the restraint. Such justification exists where the officer had probable cause to arrest the suspect." Robinson, 863 F.Supp.2d at 72 (internal citations and quotation marks omitted).
As has been noted, taking the facts in the light most favorable to Lund, genuine issues of material fact exist as to whether Henderson or Walcek had probable to arrest the plaintiff. Therefore, summary judgment on the false arrest and false imprisonment claim should be denied.
In his complaint, the plaintiff alleged: "Defendant Henderson placed his hands, without consent, upon plaintiff Lund and otherwise assaulted and battered plaintiff Lund in Wareham, Massachusetts on August 22, 2008." (# 1 ¶ 19) In his deposition testimony Lund stated that Henderson "came up behind" him, "[p]ut the cuffs on [him] and dragged [him]" and [h]it him in the head putting [him] in the cruiser." (# 64-1 at 41-2) At another point the plaintiff testified that Henderson "whacked me in the back of the head" and "pretty much manhandled me." (# 64-1 at 43-4) Lund claimed that he was injured because "[t]he cuff was imbedded in my right wrist. He hit me in the back of the head. My neck was bothering me." (# 64-1 at 44).
"Assault, under Massachusetts tort law, requires that the defendant `act[ed] intending to cause a harmful or offensive contact' with plaintiff, `or an imminent apprehension of such a contact,'
Sorenti, 2013 WL 1403489, at *5 (footnotes and citations omitted); Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir.2010) ("Massachusetts law allows for assault and battery claims against police officers who use excessive force in conducting an arrest").
Lastly, "[w]here, as here `a plaintiff alleges both a § 1983 excessive force claim and common law claims for assault and battery, [the] determination of reasonableness of the force used under § 1983 controls [the] determination of reasonableness of the force used under the common law assault and battery claims.'" Robinson, 863 F.Supp.2d at 73 (quoting Raiche, 623 F.3d at 40).
Since defense counsel has conceded that the relevant facts are in dispute on the excessive force claim, so, too, those facts are in dispute in the state law assault and battery claim. Lund's deposition testimony raises genuine issues of material fact as to whether Henderson, in fact, took the actions against the plaintiff that Lund claims he did, and, if he did, whether the force that was used was reasonable under the circumstances. As a consequence, summary judgment on Count II for assault and battery should be denied.
In order to establish a claim for the intentional infliction of emotional distress under Massachusetts law, it is incumbent upon the plaintiff to prove
Limone v. United States, 579 F.3d 79, 94 (1st Cir.2009) (quoting Agis v. Howard Johnson, Co., 371 Mass. 140, 144-145, 355 N.E.2d 315, 318-19 (1976)); Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 240 (1st Cir.2013).
"Extreme and outrageous conduct is behavior that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Young, 717 F.3d at 240 (internal citations and quotation marks omitted). Severe
The plaintiff has cited no case in which an unlawful arrest alone, even one with the type of excessive force alleged in this case, i.e., pulling the plaintiffs hands and twisting his arms behind his back, cuffing him, dragging him to the cruiser and pushing his head down to get him into the cruiser, has been found to reach the level of "extreme and outrageous conduct" required in order to establish an intentional infliction of emotional distress claim. The Court finds as a matter of law, taking the facts in the light most favorable to Lund, that the actions alleged in this case are insufficient to be characterized "as atrocious, and utterly intolerable in a civilized community." Young, 717 F.3d at 240. Summary judgment should enter for the defendants on the intentional infliction of emotional distress claim.
Lund alleges that defendants Henderson and Walcek violated the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. L. c. 12 §§ 11H & I. To succeed on a claim under the MCRA, a plaintiff must prove that:
Shea v. Porter, 2013 WL 1339671, at *6 (D.Mass., Mar. 29, 2013) (quoting Cryer v. Massachusetts Dept. of Correction, 763 F.Supp.2d 237, 254 (D.Mass.2011)); Turkowitz v. Town of Provincetown, 914 F.Supp.2d 62, 76 (D.Mass.2012) ("To establish his claim under the Massachusetts Civil Rights Act ("MCRA"), plaintiff must show 1) defendant officers threatened, intimidated or coerced him 2) to prevent him from exercising a constitutional right."). "The Supreme Judicial Court of Massachusetts has interpreted the MCRA to be co-extensive with § 1983 except for two disparities: (1) the MCRA does not require any state action ..., and (2) a claim under the MCRA requires a violation by threats, intimidation, or coercion." Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir.2002); Barbosa v. Conlon, 962 F.Supp.2d 316, 331 (D.Mass.2013) ("The purpose of the MCRA is to provide under state law a remedy coextensive with 42 U.S.C. § 1983, except that the Federal statute requires State action whereas its State counterpart does not." (internal citations and quotation marks omitted)); S. Middlesex Opportunity Council Inc. v. Town of Framingham, 2008 WL 4595369, at *20 (D.Mass., Sept. 30, 2008) ("[T]here is no indication that the MCRA was intended to provide broader relief than that provided by § 1983.").
In this case, the plaintiffs arrest without probable cause and the use of excessive force in executing that arrest, if these are found to have occurred, were a direct violation of Lund's Fourth Amendments rights. "The direct violation of a constitutional right does not establish a MCRA violation because it is not an attempt to force someone to do something the person is not lawfully required to do." Turkowitz, 914 F.Supp.2d at 76 (internal citations and quotation marks omitted). The Court's analysis in Goddard v. Kelley is persuasive:
Goddard v. Kelley, 629 F.Supp.2d 115, 128-129 (D.Mass., 2009) (citations omitted); Barbosa, 962 F.Supp.2d at 332 ("[T]he plaintiffs have put forth sufficient facts to establish a violation of their constitutional rights. This, however, is not enough [to establish an MCRA claim]. The plaintiffs have not put forth any evidence to support the conclusion that the defendants' conduct was intended to coerce them into refraining from the exercise of a right or privilege secured by law.").
Lund "conflates the two MCRA requirements. [The plaintiffs] seizure and arrest cannot satisfy both the `coercion' and `violation' elements absent some evidence that the initial force was intended to coerce [Lund]." Eason v. Alexis, 824 F.Supp.2d 236, 245 (D.Mass.2011).
Because there was no interference "by threats, intimidation or coercion," Mass. Gen. L. c. 12 § 11H, there was no violation of the MCRA on the facts taken in the light most favorable to the plaintiff. The defendants are entitled to summary judgment on this claim.
To prove his malicious prosecution claim, Lund
Rando v. CVS Pharmacy, Inc., 2013 WL 6489947, at *2 (D.Mass., Dec. 9, 2013); Morrissey v. Town of Agawam, 883 F.Supp.2d 300, 311-12 (D.Mass.2012).
On the record before the Court, the plaintiff cannot establish the second element of the claim, to wit, that the criminal proceedings terminated in his favor.
It is undisputed that on October 23, 2008, Lund signed a Tender of Plea or Admission which stated that "I [Lund] have decided to plead guilty, or admit to sufficient facts, freely and voluntarily." (# 64 ¶ 1; # 64-9) When comparable circumstances were addressed, it was determined that:
Boyle v. Barnstable Police Dept., 818 F.Supp.2d 284, 303 (D.Mass.2011) (footnote omitted).
Indeed, in a supplemental brief (# 87) filed on April 18, 2014, Lund states that his "admission of sufficient facts precludes a claim of malicious prosecution." Summary judgment should enter in the defendants' favor on the malicious prosecution claim.
Under Massachusetts law,
In an abuse of process claim, in contrast to a claim for malicious prosecution, such a motive does not alone suffice to show ulterior purpose.
Psy-Ed Corp. v. Klein, 459 Mass. 697, 713-714, 947 N.E.2d 520, 534-35 (2011) (additional footnote omitted); Rando, 2013 WL 6489947, at *4; Damon v. Hukowicz, 964 F.Supp.2d 120, 141 (D.Mass.2013).
For all of the reasons stated, I RECOMMEND that Defendants' Motion For Summary Judgment (#62) be ALLOWED with respect to the claims of Intentional Infliction of Emotional Distress (Count III), Violation of Civil Rights Under Mass. Gen. L. c. 12 § 111 (Count V) and Malicious Prosecution (Count VI). I FURTHER RECOMMEND that said motion be otherwise DENIED.
The parties are hereby advised that any party who objects to these recommendations must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271, 273 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-49, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
# 78 ¶¶ 7-8.
