United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
For Donovan Walker, Nancy Walker, Plaintiffs: Denzil D. McKenzie, Garrett J. Lee, LEAD ATTORNEYS, McKenzie & Associates, P.C., Boston, MA.
For Dwain Jackson, Timothy Horan, City of Boston, Defendants: Lisa Skehill Maki, LEAD ATTORNEY, Michelle K. Hinkley, City Of Boston Law Department, Boston, MA.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
This case arises from an allegation of police misconduct during a response to a 911 call. Plaintiffs Donovan Walker (" Mr. Walker" ) and Nancy Walker (" Mrs. Walker" ) allege that officers of the Boston Police Department (" BPD" ) conducted an illegal search of their residence and used excessive force against Mr. Walker in violation of 42 U.S.C. § 1983. The two remaining defendants, Sergeant Timothy Horan (" Sgt. Horan" ) and Officer Dwain Jackson (" Officer Jackson" ), have both filed motions for summary judgment.
For the reasons that follow, the motions for summary judgment will be allowed, in part, and denied, in part.
In February, 2011, the BPD received several 911 calls from a man who claimed that there was a dead body and an armed man at 4 Burton Avenue in Roxbury, Massachusetts. The State Police dispatcher notified the BPD dispatcher that this was the caller's fifth 911 call. When the BPD dispatcher asked for a description of the gunman, the caller responded that there were " 20 people all in black" who had guns and intended to kill someone.
The dispatchers traced the calls to Sylvester McDuffie at 4 Burton Street in Brighton, Massachusetts, who the BPD knew had made prior false 911 calls. Officers were dispatched to both the Brighton and Roxbury addresses but they found nothing of concern.
The group of officers sent to the Roxbury address surrounded the house at approximately 6:25 AM. Plaintiffs resided on the first floor in a two-bedroom apartment of the multifamily structure at that address. After opening the exterior door to the porch and learning the reason for the police presence, Mr. Walker informed the officers that there were no dead bodies or armed persons in his apartment. The officers indicated that they nevertheless had to conduct a search. At Mr. Walker's request, they agreed to limit the search to two officers and Mrs. Walker accompanied Officers McCormack and McNeill through the apartment. The two officers found neither a body nor an armed intruder.
In the meantime, Mr. Walker blocked the entry to the interior door of the apartment. Plaintiffs allege that after Officers McCormack and McNeill had completed their search and relayed their findings to the other officers, Officer Jackson attempted to enter the apartment. He allegedly told the plaintiffs that they could not stop him from entering the apartment and thrust his forearm into Mr. Walker's chest, pushing him backward into a wall. Officer Jackson then allegedly threw Mr. Walker to the floor, causing him to land on a bicycle and injure his back.
As Officer Jackson stepped into the apartment, he allegedly kicked Mr. Walker in the side of the head. Several of the remaining officers waiting outside then joined Officers Jackson, McCormack and McNeill in the apartment and allegedly proceeded to search the spaces already searched.
While lying on the ground, Mr. Walker screamed that he was paralyzed and unable to move his legs and yelled for the officers to leave immediately. Mrs. Walker attempted to help her husband but Sgt. Horan ordered her to stay back and wait for the ambulance to arrive. An ambulance transported Mr. Walker to the hospital at approximately 7:30 AM.
Later that day, Sgt. Horan returned to the plaintiffs' residence with his supervisor and admitted that Officer Jackson had acted inappropriately. Two days later, Sylvester
McDuffie was arrested for making false 911 calls and disturbing the peace.
II. Procedural History
Plaintiffs initiated this suit in February, 2012. They filed a first amended complaint several days later, a second amended complaint in June, 2012 and a third amended complaint in November, 2012. The nine defendant police officers subsequently filed eight motions to dismiss.
In July, 2013, United States District Judge Joseph Tauro allowed, in part, and denied, in part, the eight motions to dismiss. Thereafter, each of the nine defendants filed an answer to the third amended complaint.
The case was transferred to this Session in May, 2014. In August, 2014, the parties filed a joint stipulation of dismissal as to seven of the defendants, leaving Sgt. Horan and Officer Jackson as the two remaining defendants.
In September, 2014, defendant Sgt. Horan filed a motion for summary judgment and Officer Jackson filed a motion for partial summary judgment.
III. Motion for Summary Judgment
A. Summary Judgment Standard
The role of summary judgment is " to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving party to show, through the pleadings, discovery and affidavits, " that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
A fact is material if it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute " is such that a ...