United States District Court, D. Massachusetts
FRANTZY MERISIER, CLERNIDE N. MERISIER and FRANTZY MERISIER on behalf of N.M. a minor and Z.M. (a minor), Plaintiffs,
JOSHUA ELLENDER and GREGORY MARTELL, individually and as police officers in the Police Department for the Town of Mansfield, MANSFIELD POLICE DEPARTMENT and TOWN OF MANSFIELD, a municipal corporation, Defendants.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Gail Dein United States Magistrate Judge
case involves an incident which took place during the early
morning of October 26, 2013, when the Mansfield Police saw
the plaintiff, Frantzy Merisier, in his car outside of his
apartment building in Mansfield, Massachusetts. It is
undisputed that the police escorted Mr. Merisier to his
apartment and entered the apartment, where a disturbance
ensued. The police contend that Mr. Merisier was intoxicated,
which he denies.
and his wife, Clernide Merisier, brought suit on their own
behalf, and on behalf of their two minor children, against
the Town of Mansfield Police Department, the Town of
Mansfield, and two police officers - Joshua Ellender and
Gregory Martell - in their individual and official
capacities. By their complaint, the plaintiffs allege that
the defendants are liable under 42 U.S.C. § 1983 for
violating Mr. Merisier’s constitutional rights in
connection with a warrantless entry into his home and use of
excessive force (Counts I - III),  that such conduct
constitutes a violation of the Massachusetts Declaration of
Rights (Counts IV - VI), and that the defendants are liable
for assault and battery (Count VII), intentional infliction
of emotional distress (Count VII) (duplicate numbering), and
false arrest (Count VIII).
matter is presently before the court on the defendants’
motion for summary judgment. Docket No. 21. The defendants
deny any liability, and further claim that they are protected
by the doctrine of qualified immunity. For the reasons
detailed herein, the motion for summary judgment is ALLOWED
IN PART and DENIED IN PART as follows. The claims against the
Mansfield Police Department, the Town of Mansfield and Joshua
Ellender and Gregory Martell in their official capacities are
dismissed, as are the claims alleging violations of the
Massachusetts Declaration of Rights (Counts IV-VI). The
claims alleging violations of 42 U.S.C. § 1983 (Counts
I-III) are limited to claims challenging the warrantless
entry into the plaintiffs’ home, and alleging use of
excessive force by the police officer defendants in their
individual capacities. The claim for false arrest (Count
VIII) is deemed to be a claim of false imprisonment. The
motion for summary judgment is otherwise denied.
STATEMENT OF FACTS
following facts are undisputed, unless otherwise indicated.
Where the facts are in dispute, they must be viewed in favor
of the non-moving party, i.e., the plaintiffs.
See Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st
Frantzy Merisier spent most of the day of October 25, 2013
with friends in Connecticut, after which he drove to
Brockton, Massachusetts to attend a child’s birthday
party. DF ¶ 1. Mr. Merisier consumed alcohol at the
party. Id. After the party, he pulled into the
parking lot of his apartment complex, and decided to remain
in his car. DF ¶ 2. He contends that he was awake in the
car listening to music. Pl. Ex. A (F. Merisier Dep.) at
79-80. At approximately 2:00 a.m., Officer Martell, a
Mansfield police officer on routine patrol, noticed Mr.
Merisier sitting in his car, and asserts that he thought that
the occupant of the car appeared to be sleeping. Def. Ex. B
(Officer Ellender’s report); Def. Ex. C (Officer
Martell’s report). Officer Martell called dispatch,
reported the car and said that he was going to wake the
driver. Def. Ex. C. Officer Ellender radioed that he would
join him at the location. Id.
to Officer Martell, he woke Mr. Merisier up by knocking on
the window of the car. Id. Mr. Merisier appeared
drunk and soon became belligerent, both while in the car and
upon exiting. Id. This was confirmed by Officer
Ellender who had arrived on the scene. Def. Ex. B. The
Officers assert that there was a strong odor of alcohol
coming from the car, Mr. Merisier had slurred speech, had
trouble locating his license, was disoriented, had trouble
balancing and had glassy and red eyes. Def. Exs. B & C.
According to Mr. Merisier, he was not drunk, and could walk
unassisted to his apartment. Pl. Ex. A at 85. The police did
not administer a field sobriety test.
to the police, Mr. Merisier provided his driver’s
license, with difficulty, and they eventually convinced Mr.
Merisier to walk to his apartment where he could spend the
night. Def. Exs. B & C. They also convinced him to use
his key to open the door, but ended up ringing the bell
because Mr. Merisier was ranting and raving as he walked to
the apartment. Def. Ex. B. It is undisputed that the Officers
went with Mr. Merisier to his apartment, and insisted on
speaking with his wife, Clernide. Def. Ex. C; Pl. Ex. A at
Merisier was awakened by the noise, came out of the bedroom,
and initially stated that she would take control of the
plaintiff. Def. Exs. B & C. According to the Officers,
however, Mr. Merisier immediately became more belligerent and
started to scream and yell, so that it was not appropriate
for them to leave. Id. Mr. Merisier went into the
bedroom and slammed the door, but then came out and took
several steps towards the Officers in an aggressive manner.
Def. Ex. C. The police moved towards Mr. Merisier, who turned
around and retreated into the bedroom, again slamming the
door. Id. The police followed him into the bedroom.
Def. Exs. B & C. According to the police, when they
entered into the bedroom, Mr. Merisier lunged at them,
causing all of them to collide with a bureau, and almost
causing a television to fall. Def. Ex. B. The police
handcuffed Mr. Merisier and told him that they would take him
to the station unless he calmed down. Def. Exs. B & C. He
quieted down, his handcuffs were removed, and the police left
him with his wife in the apartment. Id.; DF ¶
Merisier tells a different story. According to him, he only
consumed two beers the entire day before the incident. Pl.
Ex. A at 72. He was sitting in his car listening to music
when the police approached him. Id. at 79. He was
awake and he saw them approach. Id. at 80-81.
Moreover, Mr. Merisier claims that the police ordered him out
of his car and made him walk to his apartment and open the
door with his key, in order to prove that he lived there.
Id. at 85-86. He objected to their entering his
apartment, but the police came in anyway, and refused to
leave despite his objections. Id. at 87-88, 90. They
also refused to leave after Ms. Merisier asked them to do so.
Id. at 92. The police told Mr. Merisier to go into
his bedroom so they could talk to his wife privately,
apparently about whether or not he was a violent individual
and could be left with her. See id. at 92-93. At
some point, his two minor children were awakened as well.
Id. at 92.
to the plaintiffs, Mr. Merisier entered his bedroom and
started to change out of his clothes. Id. at 93. The
police burst into his bedroom without permission, and then
shoved him from behind into the bureau. Id. at
93-96. Furthermore, according to Mr. Merisier, his head hit
the corner of the TV which was on the bureau, the TV hit the
ground and then he hit the ground face first. Id. at
96-97. He was only on the ground a few seconds, and the
police helped him up and handcuffed him. Id. at
97-98. The cuffs were on for one to three minutes and then
removed. Id. at 99. Mr. Merisier disputes that there
was any reason to put him in handcuffs. He contends that when
they left, the police told him that he needs “to learn
how to keep [his] mouth shut.” Id. at 104.
the police left, Mr. Merisier went outside for a few minutes.
Id. at 105. In the morning he went to the police
station to complain about the way he had been treated, and
then to the hospital because he had a bump on his head.
Id. at 105-109, 112. He contends that he suffered
headaches for several months after the incident, and on
occasion thereafter. Id. at 120-22. About a week to
ten days after the incident, he sought treatment from a
chiropractor for back pain, which he contends is continuing
and is the result of this incident. Id. at 118. He
also claims to have suffered post-traumatic stress disorder.
Id. at 123-24.
facts will be provided below where appropriate.
Summary Judgment Standard of Review
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.’” PC Interiors, Ltd.
v. J. Tucci Constr. Co., 794 F.Supp.2d 274, 275 (D.
Mass. 2011) (quoting Mesnick v. Gen. Elec. Co., 950
F.2d 816, 822 (1st Cir. 1991)) (additional citation omitted).
The burden is on the moving party to show, based upon the
discovery and disclosure materials on file, and any
affidavits, “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). “[A]n issue
is ‘genuine’ if it ‘may reasonably be
resolved in favor of either party.’” Vineberg
v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (quoting
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
Cir. 1990)). “A fact is ‘material’ only if
it possesses the capacity to sway the outcome of the
litigation under the applicable law.” Id.
(quotations, punctuation and citations omitted).
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.” PC
Interiors, Ltd., 794 F.Supp.2d at 275. The opposing
party can avoid summary judgment only by providing properly
supported evidence of disputed material facts. LeBlanc v.
Great Am. Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993).
Accordingly, “the nonmoving party ‘may not rest
upon mere allegation or denials of his pleading[,
]’” but must set forth specific facts showing
that there is a genuine issue for trial. Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)).
Applying these principles to the instant case compels the
conclusion that the motion for summary judgment should be
ALLOWED IN PART and DENIED IN PART.
plaintiffs claim that the defendants violated their Fourth
Amendment rights against unlawful searches and seizures by
their entry in the Merisiers’ home without a warrant.
This court finds that the existence of disputed facts
precludes the entry of summary ...