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Wilber v. Curtis

United States District Court, D. Massachusetts

September 22, 2016



          JENNIFER C. BOAL, United States Magistrate Judge.

         On November 21, 2011, plaintiff Robert Jude Wilber was arrested by members of the Town of Falmouth Police Department. He claims that his arrest and confinement were unlawful and deprived him of his civil rights pursuant to 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act. Dkt. No. 1-2 (“Complaint” or “Compl.”) at 14-15.[1] Wilber also alleges common law tort claims for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Id. at 13-14.

         This matter is before the Court on the parties' cross-motions for summary judgment. Wilber moves for partial summary judgment with respect to his allegations of civil rights violations, false arrest, and false imprisonment, while the defendants move for summary judgment on all counts. Dkt. Nos. 44, 47. For the reasons set forth below, the Court denies Wilber's motion and grants the defendants' motion.[2]


         On November 20, 2014, Wilber filed a Complaint against Falmouth Police Officers Robert Curtis, Brian Kinsella, and Michael Rogers in Barnstable County Superior Court. Dkt. No. 1-2. On February 3, 2016, Wilber moved for partial summary judgment. Dkt. No. 44. Defendants opposed Wilber's motion on March 11, 2016, and Wilber submitted a reply brief on March 23, 2016. Dkt. Nos. 57, 64. On February 4, 2016, the defendants moved for summary judgment with respect to all counts. Dkt. No. 47. Wilber opposed the motion on March 11, 2016 and amended his opposition on March 14, 2016. Dkt. Nos. 52, 60. Wilber filed a sur-reply on April 21, 2016. Dkt. No. 73. The Court heard oral argument on April 27, 2016. On May 5, 2016, Wilber filed a supplemental memorandum in support of his motion. Dkt. No. 77. The defendants filed a response on May 12, 2016. Dkt. No. 78.

         II. FACTS[3]

         Having previously determined the content of the summary judgment record, see Order on the Parties' Motions to Strike, Dkt. No. 79, this Court turns to a summary of the facts.

         A. Background

         Wilber is an individual residing in Falmouth, Massachusetts.[4] At all times relevant to the instant action, Officer Curtis was a patrolman and Officer Kinsella was a sergeant for the Town of Falmouth Police Department.[5] Officer Rogers was the booking officer and was not involved in Wilber's arrest.[6] NSTAR Corporation is a public utility that possesses, through its predecessor in title, a deeded easement over a portion of Wilber's residential property.[7] The deed grants an “easement to erect, operate, maintain and remove a line . . . for the transmission of electricity . . . . [t]ogether with the right to trim, cut and remove such trees and underbrush as in the judgment of the Grantees may interfere with or endanger said line and equipment and to enter upon said land for any of the aforesaid purposes.” Dkt. No. 46, Ex. A-1. Vegetation Control Services (“VCS”) is a company hired by NSTAR to clear vegetation on its easements in order to provide for the maintenance of power lines and structures so that electricity to the public is not interrupted.[8]

         Wilber states that he has been a vocal opponent of NSTAR's program of spraying herbicides on its utility easements, that he petitioned NSTAR officials to limit the scope of its plan to clear-cut the easement over his land, and that he believed NSTAR's program of clear-cutting was overly aggressive.[9]

         One week prior to Wilber's arrest, Wilber went to the site where VCS was working.[10]Wilber maintains that he verbally confronted VCS workers to protest the work they were doing on behalf of NSTAR, but the defendants admit only that a VCS employee, Kenneth Swanson, stated that Wilber interacted with members of the VCS work crew and that Wilber had been “hassling him, taking pictures.”[11] As a result of Wilber's confrontation with the VCS crew members, VCS requested a police presence at the worksite.[12] Swanson testified that he was concerned that VCS vegetation clearing machines could throw off brush at a distance of forty to fifty feet, and he believed that a police detail could protect citizens from getting hurt if they ventured into the worksite.[13]

         B. The Arrest

         On November 21, 2011, Officers Curtis and Kinsella were assigned to work a paid detail for VCS.[14] They walked with two VCS employees as they measured the clearing distance from the center of the power lines toward the abutting properties and marked the clearing area with red tape tied off to tree limbs.[15] Wilber went into a “high state of agitation” after seeing the cutting crews on the easement behind his house.[16] Wilber observed chainsaws and heavy-duty machinery in action within the clearing area.[17] Wilber vocally protested and strung yellow caution tape and plastic rope across the easement.[18] Wilber further claims that: (1) he took these actions in order to protest the clear-cutting, (2) the tape posed no hazard to anyone working in the area, and (3) clear-cutting has caused severe damage to his land.[19]

         A VCS employee told Officers Curtis and Kinsella that Wilber put yellow caution tape across the area, and a large wheeled clearing machine stopped working around this time.[20]Officer Curtis observed the tape “zig-zagged” across the easement and saw Wilber, who was standing in the easement, taking pictures.[21] Officers Curtis and Kinsella worked with two VCS crewmembers to remove the yellow caution tape.[22] The removal process caused an interruption to the work of the VCS crew.[23] Officer Kinsella told Wilber that he would be placed under arrest if he interfered with the removal of the vegetation within the easement.[24] Wilber admitted to placing the tape across the easement, told Officers Curtis and Kinsella that the clear-cutting work must stop, and claimed that a state representative would stop the land clearing until further talks could be held between the property owners and NSTAR.[25] The state representative, however, had told Wilber that he could not do anything to stop VCS.[26] Officer Kinsella informed Wilber that the work would not stop absent a court order.[27]

         Officer Kinsella told Wilber to stand outside the marked easement area while the crew was working, and Wilber eventually walked back toward his property after stating that he would not leave the area.[28] Wilber then proceeded to come and go from the work area, returning into the worksite and disregarding Officer Kinsella's requests not to do so.[29] Defendants state that at the time, three VCS workers were actively using chainsaws and a Hydro-Axe land clearer.[30]Wilber admits that when he reentered the worksite, a large machine was in use eighty to one hundred feet away, a chainsaw was in use fifty feet away, and another chainsaw was being sharpened twelve to fifteen feet away.[31] The big machines and large chainsaw were making a lot of noise.[32] The VCS employee who was working with a chainsaw twelve feet away moved away from Wilber.[33] Throughout the day, numerous workers moved in and out of the worksite, including workers using heavy equipment.[34]

         Officer Kinsella asked Wilber to stay outside the red tape markers, but Wilber ultimately refused to leave the worksite and sat down on a freshly cut stump “in a feeling of defeat.”[35] At some point in and around the time when Wilber sat on the stump, the VCS crew halted their work.[36] Wilber yelled out to the workers, exclaiming that they ‘didn't have to do this.'[37] After about two minutes of Wilber sitting on the stump, Officers Curtis and Kinsella approached him, and Officer Curtis once again asked Wilber to move away from the workers and out of the work area.[38] Wilber refused to move and Officer Curtis told Wilber that if he did not move, he could be placed under arrest.[39] In and around this time, Wilber took several photographs of the area, machinery, and workers.[40] Officer Curtis gave Wilber three separate warnings to leave the worksite.[41] At his third warning, Officer Curtis told Wilber: “if you don't move, I'm going to arrest you.”[42] In response, Wilber stood up, placed his hands behind his back, and did not resist arrest.[43] Officer Curtis placed Wilber in handcuffs within the boundary of the easement and escorted him to a cruiser.[44] Officer Kinsella assisted Wilber's friend in accessing Wilber's van so that he could be picked up from the courthouse.[45]

         Wilber was transported to the police station, booked by Officers Curtis and Rogers, and charged with disorderly conduct.[46] On November 21 and 25, 2011, Officers Curtis and Kinsella wrote police reports related to Wilber's arrest. Dkt. No. 49-1 at 5-8. Officer Rogers was not involved in the arrest and did not read any police report relating to Wilber on the day of the arrest.[47] Wilber was moved to Falmouth District Court, where he was placed in leg shackles and handcuffs, and held in a cell awaiting arraignment.[48] Eventually, that same day, an application for a criminal complaint for one count of disorderly conduct was filed against Wilber in Falmouth District Court.[49] On October 15, 2012, the criminal charge against Wilber was dismissed upon request of the Commonwealth.[50]


         Summary judgment is appropriate when the movant shows 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 ‘genuine' issue is one that could be resolved in favor of either party, and a ‘material fact' is one that has the potential of affecting the outcome of the case.” Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855 (1st Cir. 2008) (quoting Calero-Cerezo v. United States Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).

         The Court “must scrutinize the evidence in the light most agreeable to the nonmovants, who are entitled to the benefit of all reasonable inferences therefrom.” Ahern v. Shinseki, 629 F.3d 49, 53-54 (1st Cir. 2010) (citing Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004)). “A properly supported summary judgment motion cannot be defeated by relying upon conclusory allegations, improbable inferences, acrimonious invective, or rank speculation.” Id. (citations omitted).

         “Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se.” Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996). “Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Id. “Where, as here, a district court rules simultaneously on cross-motions for summary judgment, it must view each motion, separately, through this prism.” Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citing Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996) (“Barring special circumstances, the nisi prius court must consider each motion separately, drawing inferences against each movant in turn.”)).


         Both parties move for summary judgment on Wilber's claims for civil rights violations (Counts V and VI), false arrest (Count I), and false imprisonment (Count II). Dkt. Nos. 44, 47. The defendants also move for summary judgment on Wilber's claims for malicious prosecution (Count III) and intentional infliction of emotional distress (Count IV). Dkt. No. 47.

         A. Civil Rights Violations

         1. Section 1983

         Section 1983 is a vehicle through which individuals may sue certain persons acting under the color of state law for deprivation of federally assured rights. Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). Specifically, Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Section 1983 is “not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-4 (1989).

         “A claim under Section 1983 has two essential elements. First, the challenged conduct must be attributable to a person acting under color of state law” and “second, the conduct must have worked a denial of rights secured by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). Here, defendants do not dispute that they were acting under color of state law. They do dispute, however, that their conduct denied Wilber a constitutional right. To the extent that the defendants' actions violated Wilber's constitutional rights, they argue that they are shielded from liability by the doctrine of qualified immunity.

         2. Massachusetts Civil Rights Act (“MCRA”)

         The MCRA provides, in relevant part:

Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured.

M.G.L. c. 12, § 11H. Accordingly, the MCRA authorizes civil actions by any person subjected to an interference of rights as described in Section 11H. M.G.L. c. 12 § 11I. Liability under the MCRA may be predicated upon violations of either the federal or state constitutions. Nuon v. City of Lowell, 786 F.Supp.2d 323, 330 n.3 (D. Mass. 2011). “The MCRA is coextensive with 42 U.S.C. § 1983, except that the Federal statute requires State action whereas its State counterpart does not, and the derogation of secured rights must occur by threats, intimidation, or coercion.” Sietins v. Joseph, 238 F.Supp.2d 366, 377-78 (D. Mass. 2003) (quotations and citations omitted). The MCRA affords the same standards of qualified immunity for public officials as that applicable under Section 1983. Howcroft v. City of Peabody, 51 Mass.App.Ct. 573, 595 (2001).

         The MCRA's additional requirement that a derogation of a secured right occur by threats, intimidation, or coercion distinguishes valid claims under the MCRA from those under Section 1983. For purposes of the MCRA, a “threat” involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm, “intimidation” involves putting in fear for the purpose of compelling or deterring conduct, and “coercion” involves the application to another of such force, either physical or moral, as to constrain a person to do against his will something he would not otherwise have done. Farrah v. Gondella, 725 F.Supp.2d 238, 247 (D. Mass. 2010) (citing Planned Parenthood League of Massachusetts v. Blake, 417 Mass. 467, 474 (1994)).

         3.Probable Cause

         Under the Fourth Amendment to the United States Constitution, the right to be free from unreasonable searches gives rise to a requirement that an arrest be supported by probable cause.[51]See Beck v. Ohio, 379 U.S. 89, 91 (1964). Therefore, an arrest is lawful if an officer has probable cause. Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)). “A police officer has probable cause when, at the time of the arrest, the ‘facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'” Id. (citations omitted).

         In determining whether an officer has probable cause, this Court must view the circumstances from the perspective of a reasonable person in the position of the officer. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 255 (1st Cir. 1996). Probable cause requires only a probability that the defendant committed the crime. Holder, 585 F.3d at 504 (citations omitted). “The test for probable cause does not require the officers' conclusion to be ironclad, or even highly probable. Their conclusion that probable cause exists need only be reasonable.” Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004) (internal quotation marks and citation omitted).

         Whether the officers had probable cause to arrest is an objective inquiry. Holder, 585 F.3d at 504 (citing Bolton v. Taylor, 367 F.3d 5, 7 (1st Cir. 2004)). “The ‘actual motive or thought process of the officer is not plumbed.'” Id. Rather, the probable cause analysis entails an objective assessment of the officers' actions in light of the facts and circumstances confronting them at the time. Nuon, 786 F.Supp.2d at 330 (citing Maryland v. Macon, 472 U.S. 463, 470-71 (1985)). Probable cause determinations are “preliminary and tentative.” Acosta, 386 F.3d at 11 (citation omitted). Accordingly, police officers do not have a standing obligation to investigate potential defenses before finding probable cause. Id. (citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979)). In most circumstances, an officer may terminate his investigation when he accumulates facts that demonstrate sufficient probable cause. Id. (citations omitted).

         The probable cause justifying a lawful arrest need not be for the charge eventually prosecuted; rather, a finding of probable cause need only exist as to any offense that could be charged under the circumstances. See United States v. Bizier, 111 F.3d 214, 218-19 (1st Cir. 1997). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Accordingly, even an arrest that violates state law does not result in a per se violation of the plaintiff's rights because the only relevant inquiry is whether there was probable cause that any arrestable offense was committed. Goddard v. Kelley, 629 F.Supp.2d 115, 125-26 (D. Mass. 2009).

         Where there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them, the existence of probable cause is an issue for the jury, but, where the facts are established or undisputed, the issue becomes a mixed question of law and fact suitable for determination by the court. Nuon, 768 F.Supp.2d at 330 (citing Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993)).

         4. Analysis

         Wilber contends that because he was engaged in constitutionally protected speech, the Falmouth Police Officers lacked probable cause to arrest him for disorderly conduct, and therefore, his arrest amounted to a violation of his civil rights. Dkt. No. 45 at 10-11. The defendants counter that at the time of Wilber's arrest, Officers Curtis and Kinsella had probable cause to arrest him not only for disorderly conduct pursuant to M.G.L. c. 272, § 53, but also for other crimes, including disturbing the peace. Dkt. ...

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