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Bochart v. City of Lowell

United States District Court, D. Massachusetts

February 19, 2016

CITY OF LOWELL, ERIC G. WAYNE, individually and as a police officer for the City of Lowell, and HOOKSLIDE KELLY’S, LLC, Defendants.



This is an action under 42 U.S.C. § 1983 and related state theories arising out of an altercation in a bar. Plaintiff Andrew Bochart alleges that Lowell Police Officer Eric Wayne used excessive force against him, causing him substantial injuries, when Bochart was a patron at a bar and grill called Hookslide Kelly’s. He brought suit against defendants the City of Lowell, Wayne, and Hookslide Kelly’s under federal and state law.

Defendants Hookslide Kelly’s and the City of Lowell have been dismissed from the case pursuant to stipulations of dismissal with the plaintiff. Defendant Wayne has now moved for partial summary judgment on Count One, contending that Bochart’s excessive force claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994), and the doctrine of judicial estoppel. For the reasons described below, that motion will be granted in part and denied in part.[1]

I. Background

A. Plaintiff’s Arrest at Hookslide Kelly’s

Except where otherwise noted, the following facts are either undisputed or taken in the light most favorable to Bochart as the non-moving party.

On August 13, 2010, Andrew Bochart went to a bar and grill, Hookslide Kelly’s, in Lowell, Massachusetts. Less than three weeks before, he had undergone surgery on his shoulder, and his left arm and shoulder were in a bulky arm sling. The bouncer at the bar initially refused to allow Bochart to enter because his clothing was not covering his abdomen. Bochart told him that he wore his clothing in such a way as to make others aware that he was wearing the sling. At the bouncer’s direction, Bochart adjusted his shirt to cover the sling, which nevertheless remained obvious under his clothing, and the bouncer let him into the bar. During this interaction, Eric Wayne, a Lowell police officer, was standing next to the bouncer.

Around 1:30 a.m. on August 14, an altercation occurred inside the bar, near where Bochart was standing. Bochart alleges in the amended complaint that Wayne hit him and tackled him to the ground, causing great pain to his injured left arm and shoulder. Wayne rolled Bochart onto his back and sprayed oleoresin capsicum (commonly known as “pepper spray”) in his face. He then rolled Bochart back onto his stomach and forced his arms behind his back in order to handcuff him. At least one bystander informed Wayne that Bochart had recently undergone surgery. Later, at the direction of another police officer, Wayne adjusted the handcuffs so that Bochart’s left arm was handcuffed to his belt. Wayne and another officer dragged Bochart into a police van. Bochart asked to be transported to the hospital, but instead was taken to the Lowell police station.

At the police station, Bochart requested multiple times to be taken to a hospital, but each police officer he asked declined his request. He alleges that he received no medical care while in police custody, nor did anyone provide treatment for exposure to pepper spray. A police officer removed his sling, causing him additional pain. Around 9:30 a.m., the police released him. He proceeded directly to Saints Memorial Hospital in Lowell for emergency treatment. According to the complaint, the incident aggravated his arm and shoulder injury.

B. The Criminal Proceedings in State Court

Bochart was charged in state court with disorderly conduct, resisting arrest, and assault and battery on a police officer. (Def. SMF ¶ 1, Ex. 2). In the ensuing criminal proceedings, the disorderly conduct charge was dismissed and Bochart admitted to sufficient facts as to the charges of resisting arrest and assault and battery on a police officer. (Def. SMF ¶ 2, Ex. 2, 3, 4). When Bochart entered his plea, the assistant district attorney prosecuting the case provided the following colloquy:

. . . Upon approaching the group to disperse the group of people, the officer looked down on the ground and observed the defendant before you lying on the ground. The officer shoved several individuals off of the defendant in an attempt to help him.
The officer reached down and told the defendant that he was the police. The defendant was looking right at the officer and could clearly see the officer, as he was in uniform. The defendant was told to relax and that he would help him.
At that time, the defendant was screaming and he said he was going to kill someone. The officer again told him to relax, at which time the defendant took his right hand and punched the officer in the face.
The officer noticed that the defendant had a brace on his left shoulder, and in an attempt to not further injure him, he used gentle force in attempting to handcuff him. He rolled the defendant on his side, and at that time the defendant began kicking and flailing. He then reached up and took the officer’s handcuffs from the officer’s hands and tucked them underneath his body. The officer was able to place the ...

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