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Osgood v. Town of Salisbury

United States District Court, D. Massachusetts

May 22, 2015



RYA W. ZOBEL, District Judge.

Plaintiff, Rahma Freeman Osgood ("Osgood"), complains of the conduct of defendants Daniel B. McNeil and Michael Tullercash (the "individual defendants") in responding to a domestic dispute with plaintiff's then-boyfriend. The First Amended Complaint[1] (Docket #21, Exhibit 1) asserts claims against the individual defendants for false arrest in violation of her Fourth Amendment rights pursuant to 42 U.S.C. § 1983 (Count 6-7), and for the torts of false arrest and intentional infliction of emotional distress (Count 2-5). She also sues the Town of Salisbury ("the Town"), alleging claims for vicarious negligence, based on the actions of McNeil and Tullercash during and after plaintiff's arrest (Count 1), and direct claims of negligence for an alleged failure to train and supervise McNeil and Tullercash (Count 1) and for the hiring, retention and promotion of McNeil, who was Acting Sergeant for the Salisbury Police Department at the time of plaintiff's arrest (Count 8). All defendants have moved for summary judgment (Docket ##26 and 29).

I. Facts

In deciding those motions, I take, as true, all facts supported by the record and not disputed, and draw all inferences in the nonmoving party's favor.

On the night of February 6, 2012, some time around 3:00 a.m., Salisbury Police Sergeant Daniel McNeil ("McNeil") and Salisbury Police Officer Michael Tullercash ("Tullercash") responded, separately, to a report of a domestic disturbance at the home of Rahma Freeman Osgood ("Osgood"), the plaintiff in this matter. First Amended Complaint (hereinafter "Complaint"), ¶ 6; Arrest Report of Rahma Freeman, Docket # 28, Exhibit B. When McNeil arrived, Osgood's boyfriend, Luis Anaya ("Anaya"), was outside the home talking on his phone. He told McNeil that Osgood "had cut him all up" with a knife. Complaint, ¶ 6; Deposition of McNeil, Docket #28, Exhibit C, p. 19-20. At the time, Anaya's face was bloodied and scratched, and he showed the police officers a welt on his foot he claimed was caused by the plaintiff stomping on it with her heel. Deposition Testimony of Rahma Freeman Osgood, Docket #31, at 11:4-12.

McNeil then entered the house and spoke with Osgood. Osgood denied causing injury to Anaya and told McNeil that Anaya had cut and assaulted her. Complaint, ¶ 6. Osgood further informed McNeil that there were surveillance cameras inside the home. Id., ¶ 7. McNeil placed Osgood under arrest for domestic assault and battery and assault and battery with a dangerous weapon. Complaint, ¶¶ 7-8. When he saw Osgood being arrested, Anaya became agitated and began screaming that he had lied and that he had cut himself. Complaint ¶ 7.

Plaintiff was released from detention after eight days when her mother brought the surveillance videos from the apartment to the police station. They revealed Anaya had perpetrated the attack on plaintiff, not the reverse. Complaint ¶ 9. The surveillance footage was not viewable the night of the incident. Deposition Testimony of Kendra Pike-Osgood, Docket #28, Exhibit 7, p. 15-16. Anaya was subsequently charged and served jail time. Complaint ¶ 10.

II. Standard of Review

Summary judgment is appropriate when the moving party shows that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering whether or not a genuine issue of material fact exists, the court "must view the evidence in the light most favorable to the opposing party." Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). The nonmovant, however, "must point to competent evidence and specific facts to stave off summary judgment." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

"[I]t is pointless to submit... [a] probable cause question[ ] to the jury at all unless the facts are disputed." Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 8 (1st Cir. 2004). "When the relevant facts leading to the officer's involvement are established, probable cause is a mixed question of law and fact' suitable for determination by the court." Id. at 8-9 (citing Ornelas v. United States, 517 U.S. 690, 696 (1996)). "In the case at hand, the material facts-what the police knew at the moment of the arrest, the source of their knowledge, and the leads that they pursued or eschewed-are not in dispute. When that is so, the existence vel non of probable cause ordinarily is amenable to summary judgment." Id. at 9 (citing Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 254-56 (1st Cir. 1996)).

III. Discussion

A. Motion to Strike

I start with defendants' motion to strike an affidavit of a putative expert (Docket ##41 and 48).

Federal Rule of Civil Procedure 26(a)(2)(D) requires that a party disclose the experts that they intend to call at trial "at the times and in the sequence that the court orders." Fed.R.Civ.P. 26(a)(2)(D). "If a party fails to provide information or identify a witness as required by Rule 26(a)..., the party is not allowed to use that information or witness to supply evidence on a motion, at a ...

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