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Merisier v. Ellender

United States District Court, D. Massachusetts

July 6, 2016

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.


          Judith Gail Dein United States Magistrate Judge


         This 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.

         Frantzy 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), [1] 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).

         This 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.


         The 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 Cir. 2008).

         Plaintiff 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.

         According 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.

         According 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 87-88.

         Ms. 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 ¶ 12.

         Mr. 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.

         According 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.

         After 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.

         Additional facts will be provided below where appropriate.

         III. ANALYSIS

         A. Summary Judgment Standard of Review

         “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.’” 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).

         “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.” 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.

         B. Warrantless Entry

         The 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 ...

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