United States District Court, D. Massachusetts
CARLOS PATINO, by his father and next friend PEDRO PATINO, and MARIA PATINO, Plaintiffs,
THE CITY OF REVERE, OFFICER CHARLES CALLAHAN, OFFICER JOSEPH DELUCA, MASSACHUSETTS STATE TROOPER PAUL MCCARTHY TROOPER JESSE SWEET, and OTHER AS YET UNNAMED LAW ENFORCEMENT OFFICERS OF THE REVRE POLICE DEPARTMENT, THE METRO BOSTON GANG UNIT AND/OR THE MASSACHUSETTS STATE POLICE Defendants
REPORT AND RECOMMENDATION ON DEFENDANT PAUL MCCARTHY’S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 100)
DONALD L. CABELL, U.S.M.J.
District Judge Leo T. Sorokin: ELECTRONIC ORDER entered The Court has undertaken de novo review of Magistrate Judge Cabell's Report and Recommendation 123 and considered both the objections of the Plaintiffs (#128) and the Defendant 129 . The Court ADOPTS the Report and Recommendation. Defendant's Motion for Summary Judgment 100 is ALLOWED in all respects EXCEPT as to Counts 3, 4, and 8. The Motion is DENIED as to these three Counts. The parties shall file a Joint Status Report within ten (10) days advising (a) whether all parties wish to go to the Court's mediation program prior to trial; and (b) whether all parties consent to the exercise of jurisdiction by the magistrate judge. (Montes, Mariliz) (Entered: 03/08/2016)
This matter arises from an unfortunate incident. Law enforcement officers responding to a possible breaking and entering into a dwelling encountered the plaintiff Carlos Patino in his backyard. The plaintiff, who is a mentally disabled adult with the functional capacity of a child, fled in fright when he saw the officers. The officers subdued and restrained the plaintiff on the ground, but released him when they realized he was not their suspect. The plaintiff, through his father Pedro Patino, and his step-mother Maria Patino, initially brought a 12 count suit against several officers and agencies but the suit has narrowed over time and now consists of six claims against the defendant, Massachusetts State Police Trooper Paul McCarthy (Trooper McCarthy or the defendant). The plaintiffs claim violations under 42 U.S.C. § 1983 of the Fourth and the Fourteenth Amendments to the U.S. Constitution, and additionally invoke the Court’s 28 U.S.C. § 1367 supplemental jurisdiction to entertain certain common law claims. Now pending is the defendant’s motion for summary judgment on all counts. For the reasons discussed below, the Court recommends that the motion be granted in part and denied in part.
I. RELEVANT FACTS
The following facts are taken from the parties’ Statements of Facts (Dkt. Nos. 102, 119) and the evidence submitted in connection with the defendant’s summary judgment motion. As is required on summary judgment, the facts are presented in the light most favorable to the plaintiffs as the non-moving party.
On the afternoon of May 7, 2010, Trooper McCarthy was sitting in an unmarked car as part of a stakeout on Pearl Street in Revere, MA. (Dkt. No. 102 at ¶ 3). At around 4:00 p.m., he saw an individual, later determined to be Steven Panzino, park an SUV and climb into the second floor window of a multi-family dwelling. (Id. at ¶ 4). Panzino was bare-chested but he was carrying a red shirt. Trooper McCarthy requested a check of the SUV’s license plates and determined the car was stolen. (Id. at ¶ 5). Trooper McCarthy determined that the suspect had committed two criminal offenses -- breaking and entering and possession of a stolen vehicle --and he requested backup assistance. (Id. at ¶ 6). Three additional M.S.P. Troopers and two Revere Police Officers, including Officer Charles Callahan, responded to the call. (Id. at ¶ 7).
The officers then approached the dwelling to look for the suspect. (Id. at ¶ 7). Officer Callahan and Trooper McCarthy went around the back of the house and in doing so encountered Carlos Patino, who was sitting in the yard watching airplanes. (Id. at ¶ 7; Exs. 7 and 8). Maria Patino was inside the house with her eight-year-old grandson, recovering from bladder surgery. (Dkt. No. 119 at ¶ 1).
Upon seeing Officer Callahan and Trooper McCarthy the plaintiff got up and ran towards the back door of his house, yelling for his stepmother. (Id. at ¶ 1; Dkt. No. 102 at ¶ 11). Both officers yelled for the plaintiff to stop running but he continued towards the house. (Dkt. No. 102 at ¶¶ 12-13). Officer Callahan reached the plaintiff first and the plaintiff tried to push him away. (Id. at ¶ 15). Trooper McCarthy then also grabbed the plaintiff but was not able to bring him under control. (Id. at ¶ 17). All three men subsequently fell and Trooper McCarthy landed on top of the plaintiff. (Dkt. No. 119 at ¶ 5). The plaintiff continued to struggle so the defendant, working alone since Officer Callahan had injured himself, kneed the plaintiff in the ribs once to subdue him, without success, and then did so a second time. (Dkt. No. 102 at ¶ 28). The plaintiff stopped resisting after the second strike. Trooper McCarthy placed the plaintiff in handcuffs. (Id.) At some point during this struggle Trooper McCarthy realized that the plaintiff was not the man he had seen enter the second-floor window. (Id. at ¶ 31).
Maria Patino came outside after hearing the plaintiff’s screams. (Dkt. No. 119 at ¶¶ 1-2). She saw the plaintiff on the ground with his hands cuffed behind his back. (Id. at ¶ 4). Trooper McCarthy hit and kicked the plaintiff, and slammed the plaintiff’s head into the concrete patio ground multiple times. (Id.) The plaintiff had a bloody nose and scratches on his face. (Id. at ¶¶ 8-9). Maria Patino is not sure how many times Trooper McCarthy struck the plaintiff’s head but said that it “felt like a million” and “might” have been more than fifty times. (Id. at ¶ 4). She shouted at the officers in Spanish but neither officer understood her. (Id. at ¶ 7; Dkt. No. 102 at ¶ 37). (Trooper McCarthy disputes that he ever hit or kicked the plaintiff or struck his head on the ground.).
At some point a neighbor named Ileana Zenus heard the commotion and came over. She saw that Carlos Patino was on the ground but she could not recall if he was already handcuffed. She did not see Trooper McCarthy hit or kick the plaintiff. Ms. Zenus is an English/Spanish interpreter and she translated for Maria Patino and helped Trooper McCarthy to understand the plaintiff’s mental limitations, which were not self-evident from his physical appearance. (Dkt. No. 102 at ¶¶ 33-34, 39). Trooper McCarthy then released the plaintiff. (Id. at ¶ 46). The officers offered to call an ambulance for the plaintiff but his stepmother declined because she was not able to accompany him. (Id. at ¶ 34 and Exs. 7-8). Instead, she called Pedro Patino and he came home and photographed the plaintiff’s injuries and then took him to an emergency room. (Id. at ¶ 50; Dkt. No. 119 at ¶¶ 10-11).
The plaintiff was found to have suffered a fractured rib and abrasions on his head, arm and legs. He also had multiple bruises, a hematoma and swelling over his left eye. The hospital also performed a CT scan because of concern over a possible head injury. (Dkt. No. 119 at ¶ 12).
The plaintiff has a lifelong history of mental illness, outbursts and insomnia. However, his behavior and emotional state deteriorated significantly following the incident. He became fearful of the police and came to suffer from PTSD, anxiety and depression. (Id. at ¶¶ 14-16).
The incident caused Maria Patino to suffer from depression and, because it caused her to rush from her bed, also complicated her recovery from surgery. She also saw a psychiatrist, albeit some years later, and started taking medication. (Id. at ¶¶ 19-20; Dkt. No. 102 at ¶ 52).
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 permits the Court to grant summary judgment as to any claim or part of a claim. Fed.R.Civ.P. 56(a). 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.” Johnson v. Gordon, 409 F.3d 12, 16-17 (1st Cir. 2005) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving party to show “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
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 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 258.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view the entire record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor. Johnson, 409 F.3d at 17. Summary judgment is appropriate if, after viewing the record in the non-moving party's favor, the Court ...