United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, DISTRICT JUDGE
On January 14, 2013, while standing outside of Bell’s Market in South Boston, Plaintiff Joseph Johnson was arrested by officers of the Boston Police Department. Johnson had several outstanding warrants at the time. In the course of the arrest, Johnson and Boston Police Officer Robert Charbonnier had a physical altercation, and Johnson was subsequently charged with Assault and Battery on a Police Officer. That charge, however, was eventually dropped and soon thereafter, Johnson initiated this civil action. In his complaint, Johnson asserts various federal and state-law claims against two of the arresting officers: Robert Charbonnier and Robert England (together, the “Defendants”). Johnson alleges that Charbonnier used excessive force during the arrest, in violation of his Constitutional rights, and that both Defendants then falsely and maliciously prosecuted him for Assault and Battery on a Police Officer. Before the Court are Defendants’ Motions for Summary Judgment. For the reasons set forth herein, England’s Motion for Summary Judgment is ALLOWED and all counts against England are dismissed; Charbonnier’s Motion for Summary Judgment is ALLOWED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
Johnson filed his original Complaint on December 31, 2013, naming the City of Boston ("Boston"), Charbonnier, England, and Sergeant Clark, whose first name was unknown, as defendants. [ECF No. 1]. In April 2014, both Boston and Clark moved to dismiss the Complaint, [ECF Nos. 11, 13], and Johnson responded by filing an Amended Complaint that named only Charbonnier and England as defendants [ECF No. 24 ("Amended Complaint.")]. The Amended Complaint includes five causes of action, all but one of which are brought against both Defendants: Count I asserts a 42 U.S.C. § 1983 ("§ 1983") claim against only Charbonnier, on the grounds that he used excessive force during Johnson's arrest in violation of the 4th Amendment; Count II alleges a § 1983 claim against the Defendants for conspiring to violate Johnson's constitutional rights; Count IV alleges the Defendants violated Johnson's state rights under the Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12, § 1II; Count V asserts a state-law malicious prosecution claim against the Defendants; and Count VII asserts a state-law intentional infliction of emotional distress claim against the Defendants.
On September 15, 2015, Charbonnier and England separately moved for summary judgment. [ECF Nos. 68, 71]. Both moved for summary judgment on Counts II (conspiracy), IV (Mass. Civil Rights Act); V (malicious prosecution), and VII (intentional infliction of emotional distress). Defendants' motions were accompanied by separate Memoranda of Law, [ECF Nos. 69, 72], and identical Statements of Material Facts [ECF No. 70, 73]. On September 29, 2015, Johnson filed a Memorandum of Law in opposition to the motions, [ECF No. 76], and a Counter Statement of Material Facts [ECF No. 77]. On November 30, 2015, the Court held oral argument on the motions.
B. Factual Background
The following facts are undisputed, unless otherwise noted. Additional relevant facts will be discussed as needed in this Memorandum.
On January 14, 2013, at approximately 4:00 pm, Johnson was standing outside of Bell’s Market in South Boston. [ECF No. 73, Defendant Robert Charbonnier’s Local Rule 56.1 Statement of Facts and Supporting Documentation (“Def Facts”), ¶ 1]. Johnson was standing with an individual known as “Mucka” (a.k.a. Thomas McClaney). Id ¶ 11. Johnson had outstanding warrants, and had been arrested numerous times in the past, including for aggravated assault and battery and resisting police officers. Id ¶¶ 3, 6.
On the day of the arrest, officers Charbonnier, England, and Kenneth Reid were working in the South Boston drug control unit of the Boston Police Department. Id ¶ 2. While on patrol, England observed Johnson standing outside of Bell’s Market and notified Reid and Charbonnier. Id. ¶¶ 9-10. The three officers believed that Johnson might try to flee, based on his past criminal history, and they discussed how to best approach Johnson to arrest him for the outstanding warrants. Id ¶ 13. The officers devised an arrest plan: Charbonnier would walk past Johnson and position himself on one side; Reid and England would follow behind and approach Johnson from the other side, such that the officers would be on either side of Johnson in case he attempted to flee. Id ¶ 14.
Consistent with this plan, Charbonnier approached Johnson while pretending to be on his cellphone. Id. ¶ 15. Instead of walking past Johnson, however, as per the plan, Charbonnier stopped and ultimately initiated the arrest on his own. The parties disagree over the sequence of events that preceded the arrest.
Charbonnier testified at his deposition that as he approached Johnson, Mucka said something to Johnson, and Johnson then looked back and forth at Charbonnier. Charbonnier, believing that Johnson recognized him as a police officer, put away his cell phone, pulled out his badge and said “Boston Police.” [ECF No. 73-3, Deposition of Robert Charbonnier, at 25:1-5; 26:3-9]. Johnson disputes that Mucka said anything to him before the arrest, that he knew that the man approaching him was a police officer, and that Charbonnier pulled out his badge and identified himself as a police officer before initiating the arrest. [ECF No. 77, Plaintiff’s Responsive Pleading Per L.R. 56.1 (“Plaintiff Facts”), ¶¶ 16-18].
Johnson testified that while standing outside of Bell’s Market, responding to a text, he glanced up and saw a man that looked like a cop; he does not remember anything after that, until he woke up at Boston Medical Center. [ECF No. 73-4, Deposition of Joseph Johnson, at 146:2-18]. In support of his opposition to the motions for summary judgment, however, Johnson also submitted a surveillance video from outside of Bell’s Market that captured the arrest. Plaintiff Facts, Ex. K. The video shows Johnson using his phone and standing with Mucka as Charbonnier approaches. In the video, which has no sound, Johnson glances up at Charbonnier, who is walking towards him in plain clothes while pretending to be on his cell phone. In response, Charbonnier puts away the cell phone and reaches towards Johnson. It is not clear from the video whether Charbonnier shows his police badge or states that he is Boston Police before reaching towards Johnson. The video then shows that in the span of one-to-two seconds, Charbonnier grabs Johnson by the neck and the two fall to the ground. The parties dispute what happened during this time, and the video itself is not conclusive one way or the other. Defendants contend that as Charbonnier reached to grab Plaintiffs shoulder to place him under arrest, Johnson pivoted and pushed Charbonnier away with his arm, with the resulting momentum causing Johnson and Charbonnier to fall to the ground. Def Facts, ¶ 19. Johnson denies pivoting away from or pushing Charbonnier. Plaintiff Facts, ¶ 19. According to Johnson, “the video reveals that officer Charbonnier grabbed [him] around the neck, tripped him, and slammed him to the ground.” Id Johnson also asserts that after he and Charbonnier were on the ground, Charbonnier struck him in the face with a closed fist. Id ¶ 35. The video, however, is also not conclusive on this point.
What happened next is largely undisputed. England and non-defendant Kenneth Reid arrived on the scene shortly after Charbonnier and Johnson fell to the ground. Def Facts, ¶ 22. Charbonnier and Johnson were transported to Boston Medical Center for treatment. Id ¶ 23. During the fall, Charbonnier hit his head on a brick wall and sustained a laceration to his head and arm. Id ¶ 20. Charbonnier was briefly hospitalized and received fifteen staples to his head. Id. ¶ 24. After the arrest, Johnson complained of headaches, lower back pain and leg pain. He was examined and given a CT Scan and X-Rays, which revealed no abnormalities nor any visible injuries, and he was subsequently discharged. Id ¶ 25.
England then wrote a police report using information provided by Charbonnier, and also filed an application for a criminal complaint. Id ¶¶ 26-28; Plaintiff Facts, Exh. L. The police report described the incident as an assault and battery on a police officer, and stated that, “[w]hen PO Charbonnier identified himself as the Boston Police, Johnson pushed Officer Charbonnier and tried to flee. PO Charbonnier grabbed Johnson and both PO Charbonnier and Johnson fell to the ground.” Plaintiff Facts, Exh. L. A complaint for Assault and Battery on a Police Officer was issued on January 15, 2013. Def. Facts, ¶ 29; Exh. G. On April 22, 2013, the ...