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Devine v. Woburn Police Department

United States District Court, D. Massachusetts

September 30, 2016

JOHN PATRICK DEVINE, Plaintiff,
v.
WOBURN POLICE DEPARTMENT, OFFICER MARIO PASCUCCIO, OFFICER DAVID SIMONDS, OFFICER JEROME GATELY and JOHN DOES 1-100, Defendants and Third-Party Plaintiffs,
v.
JOHN JOSEPH DEVINE, SR., Third-Party Defendant.

          MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 44); THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 48); PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 52)

          MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE

         Pending before this court are three motions for summary judgment by the parties: defendants Woburn Police Department (“Woburn Police Department”), Officer Mario Pascuccio (“Officer Pascuccio”), Officer David Simonds (“Officer Simonds”) and Officer Jerome Gately (“Officer Gately”) (Docket Entry # 44); plaintiff John Patrick Devine (“plaintiff”) (Docket Entry # 52); and third-party defendant John Joseph Devine, Sr. (“John Devine, Sr.”) (Docket Entry # 48). After conducting a hearing, this court took the motions (Docket Entry ## 44, 48, 52) under advisement.

         PROCEDURAL HISTORY

         The complaint sets out civil rights violations based on a false, “illegal [a]rrest” and the use of excessive force in violation of 42 U.S.C. § 1983 (“section 1983”) and a conspiracy in violation of 42 U.S.C. § 1985 (“section 1985”). (Docket Entry # 1-1, pp. 2-3). As construed by this court on July 14, 2015, the pro se complaint additionally sets out “violations of state law in the civil action cover sheet.” The cover sheet, in turn, refers to “excessive force, ” “Police Brutality, ” “violation[s] of Federal and State Constitutional Rights, Subject of Police assault, illegal arrest, false charges, [i]ntentional misrepresentation fraud.” (Docket Entry # 1-1, p. 1).

         The parties disagree whether the complaint includes state law claims and, if so, the causes of action alleged under state law. In his summary judgment motion, plaintiff submits that the complaint includes the following claims upon which he seeks summary judgment: “Count I-breaking and entering, Count II-assault, Count III-battery, Count IV-illegal arrest, Count V-false accusations, Count VI-confabulation of a false police report, Count VII-false imprisonment, Count VIII-violations of Plaintiff's innate civil rights protected by the Constitution of the United States . . . under U.S.C. 42 § 1983 [sic] and U.S.C. § 1985.” (Docket Entry # 52). Neither the cover sheet nor the body of the complaint refer to state law claims for “breaking and entering, ” “battery, ” a common law claim of “illegal arrest, ” or state law claims of “false accusations, ” “confabulation of a false police report” and “false imprisonment.”

         The Woburn Police Department and Officers Pascuccio, Simonds and Gately (“defendants”) acknowledge that the complaint sets out federal violations of sections 1983 and 1985 for an illegal arrest based on false charges and the use of excessive force. (Docket Entry # 55). They object, however, to the inclusion of the aforementioned state law claims “for ‘assault, battery, illegal arrest, false accusation, confabulation of false police reports and false imprisonment'” because plaintiff never asserted these claims in the complaint and therefore ask this court to “deny [plaintiff's] request for summary judgment on the[se] state tort claims.” (Docket Entry # 55).

         The “general rules of contract construction, ” which afford words their ordinary meaning, apply to the construction of a complaint. Narragansett Jewelry Co., Inc. v. St. Paul Fire and Marine Ins. Co., 555 F.3d 38, 41 (1st Cir. 2009) (applying “general rules of contract construction and giv[ing] words their ‘plain, ordinary meaning'” in examining complaint to determine if it imposed a duty to defend an insurance company); accord Cortés-Rivera v. Dep't of Corrs. and Rehab. of Commonwealth of Puerto Rico, 626 F.3d 21, 28 (1st Cir. 2010). The structure of the complaint also bears upon the interpretation of whether it raises a claim. See id. (examining “plain language” of complaint and its structure to determine if it raised a claim). Placed in proper context, deciphering the state law claims in the cover sheet therefore takes into account the fact that the body of the complaint only articulates federal section 1983 claims for a false arrest and use of excessive force and a section 1985 conspiracy. Defendants had notice of these federal constitutional violations and undertook discovery of those claims.[1] Liberally construing the language in the complaint and the cover sheet in light of plaintiff's pro se status, the complaint includes a cause of action for the violation of plaintiff's “State constitutional rights” under the Massachusetts constitution based on an “illegal arrest” and the use of “excessive force”[2] via the “assaults” committed by the police officers. (Docket Entry # 1-1, p. 1). Thus, consistent with the section 1983 federal claims in the body of the complaint and in light of the reference to “State constitutional rights” in the cover sheet, the state law claims in the complaint consist of a violation of the Massachusetts state constitution[3] based on an illegal arrest and excessive force. Defendants' request that this court deny plaintiff summary judgment on the state tort claims because they are not in the complaint is therefore well taken with respect to the state law “claims” in the cover sheet, except for the claim of the violation of plaintiff's “State constitutional rights” based on an illegal arrest and use of excessive force. Plaintiff's summary judgment motion therefore pertains only to the existing causes of action upon which he seeks summary judgment, namely, the section 1983 and section 1985 claims. Plaintiff's motion insofar as it seeks summary judgment on the state law “claims” referenced in his summary judgment motion[4] is denied because he does not assert them in the complaint.

         Turning to the third-party complaint, as explained in the July 14, 2015 Order, it sets out claims for contribution and indemnity based on the state law claims pursuant to Massachusetts General Laws chapter 231B. (Docket Entry ## 22-1, 27). The Order explicitly denied without prejudice leave to file the third-party complaint with respect to contribution and indemnity claims on the federal claims brought by plaintiff, including the section 1985 conspiracy claim, absent further briefing.[5] See generally Nga Truong v. Pageau, 2013 WL 6122097, at *5 (“a claim for contribution may not be asserted in a [section] 1983 action”); Castro v. County of Nassau, 739 F.Supp.2d 153, 184 (E.D.N.Y. 2010) (“[n]o right to contribution exists under § 1983” and also stating, “[n]or is there a federal right of indemnification under the statute”). There has been no further briefing. Accordingly, at this point, there is no contribution or indemnity claim in the third-party complaint in the event defendants are found liable on the section 1983 and 1985 claims.

         Notwithstanding this limitation regarding the claims in the third-party complaint, the motion for summary judgment filed by John Devine, Sr. seeks summary judgment on the basis of his potential liability for contribution and indemnity for the “action against [him] alleging a civil conspiracy.” (Docket Entry # 49, p. 1). John Devine, Sr. further notes that, “The [T]hird Party Plaintiff's sole count against [him] is conspiracy.” (Docket Entry # 49). John Devine, Sr.'s summary judgment motion is therefore denied as moot given the absence of: a state law claim for civil conspiracy against him in the third-party complaint; and/or a state law claim for civil conspiracy in the complaint for which he would be subject to contribution and indemnity. As noted above, the state law claims in the complaint are for an illegal arrest without probable cause and the use of excessive force.

         Defendants, in turn, move for summary judgment on all counts and claims brought by plaintiff. With respect to the section 1985 conspiracy claim, however, they did not provide an argument or basis to allow summary judgment on that claim. The brevis assertion in an opposition to plaintiff's summary judgment motion that the court should dismiss the claim because plaintiff proffers no evidentiary support (Docket Entry # 55, p. 5) is not incorporated into the memorandum in support of defendants' summary judgment motion, nor are the arguments to support it. (Docket Entry ## 44, 45).

         STANDARD OF REVIEW

         Where, as here, the parties have filed cross motions for summary judgment, the court must “‘determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.'” Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004). Each summary judgment motion is reviewed separately and factual disputes are resolved in favour of the non-moving party. See OneBeacon American Ins. Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1stCir. 2012) (viewing cross motions for summary judgment “‘separately, ' in the light most favourable to the non-moving party, and draw[ing] all reasonable inferences in that party's favor”).

         Summary judgment is designed “to ‘pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'” Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It is appropriate “if 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). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

         “Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.'” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014). The evidence is viewed “in the light most favorable to the non-moving party” and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). Where the nonmovant bears the burden of proof at trial, he “‘must point to facts memorialized by materials of evidentiary quality and reasonable inferences therefrom to forestall the entry of summary judgment.'” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014); see Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (as to issues on which nonmovant bears burden of proof, he must “‘demonstrate that a trier of fact reasonably could find in his favor'”).

         In reviewing a summary judgment motion, a court may examine all of the record materials on file “including depositions, documents, electronically stored information, affidavits or declarations . . . or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “Unsupported allegations and speculation, ” however, “do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment.” Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) (“allegations of a merely speculative or conclusory nature are rightly disregarded”).

         Defendants submit a LR. 56.1 statement of undisputed facts in support of their summary judgment motion. Plaintiff did not file a response to the statement with citations to the record or otherwise controvert a number of the statements by pointing to materials of suitable evidentiary quality elsewhere in the record. Uncontroverted statements of fact in defendants' LR. 56.1 statement therefore comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1stCir. 2003) (the plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003) (citing LR. 56.1 and deeming admitted undisputed material facts that the plaintiff failed to controvert); see also Kenda Corp., Inc. v. Pot O'Gold Money Leagues, Inc., 329 F.3d 216, 225 n.7 (1st Cir. 2003) (citing principle that “‘pro se status does not insulate a party from complying with procedural and substantive law'”). Adhering to this framework, the record sets out the following facts.

         FACTUAL BACKGROUND

         On June 17, 2012, plaintiff was arrested at 605 Main Street in Woburn, Massachusetts by Officers Pascuccio, Simonds and Gately, all members of the Woburn Police Department at the relevant time. (Docket Entry # 50, ¶ 1) (Docket Entry # 58, ¶ 1) (Docket Entry # 46, p. 2). On that same day, plaintiff's father, John Devine, Sr., went to the Woburn Police Department after having an argument with plaintiff. (Docket Entry # 46-11, p. 3).[6] As stated in his deposition, John Devine, Sr. confirmed he did not ask the police to arrest plaintiff. (Docket Entry # 53-1, p. 3). John Devine, Sr. also stated at his deposition that plaintiff had never hit him and, to the best of his knowledge, plaintiff had never threatened him. (Docket Entry # 53-4, p. 8).

         While at the Woburn police station on June 17, 2012, John Devine, Sr. reported to the police that plaintiff had struck him earlier that day. (Docket Entry # 46-11, p. 3). John Devine, Sr. also reported to the Woburn police that he was afraid of his son, plaintiff. (Docket Entry # 46-11, p. 3). As stated in Lt. Donovan's affidavit, John Devine, Sr. told Lt. Donovan he was afraid of plaintiff because plaintiff had just assaulted him and also threatened to kill him.[7] (Docket Entry # 46-2, p. 3). John Devine, Sr. advised the police that the house at 605 Main Street was not locked and the police could enter the residence. John Devine, Sr. was the legal owner of the home. (Docket Entry # 46-11, pp. 2-4).

         Lt. Donovan dispatched Officers Pascuccio, Simonds and Gately to 605 Main Street, where Lt. Donovan understood plaintiff was located. (Docket Entry # 50, ¶ 3) (Docket Entry # 58, ¶ 3). All three officers were employed by the City of Woburn and had attended the police academy prior to the incident on June 17, 2012. (Docket Entry # 46, p. 3). Based on his personal knowledge, Lt. Donovan knew John Devine, Sr. was over 60 years of age on June 17, 2012. (Docket Entry # 46-11, p. 4). In response to a set of admissions, John Devine, Sr. also confirmed he was 60 years of age or older when he went to the Woburn Police Department on June 17, 2012. (Docket Entry # 46-11, p. 4). Officer Pascuccio was the lead officer and was told by Lt. Donovan to place plaintiff under arrest. (Docket Entry # 50, ¶ 3) (Docket Entry # 58, ¶ 3). Lt. Donovan advised Officer Pascuccio that because John Devine, Sr. indicated plaintiff could be violent, he dispatched two additional Woburn police officers, Officers Simonds and Gately, to assist in placing plaintiff under arrest. (Docket Entry # 46-2, p. 3).

         As stated in his deposition, when Officer Gately arrived at 605 Main Street, he knew John Devine, Sr. had reported to the police that plaintiff had struck John Devine, Sr. earlier that day. (Docket Entry # 46-13, p. 4) (Docket Entry # 46-11, p. 3). Before going to the house, Officers Pascuccio, Simonds, Gately and John Devine, Sr. met at the Woburn Boy's Club to discuss their strategy for apprehending a combative subject. (Docket Entry # 46-13).

         Shortly thereafter, Officers Pascuccio, Simonds and Gately arrived at 605 Main Street at the rear door. (Docket Entry # 50, ¶ 4) (Docket Entry # 58, ¶ 4). Plaintiff was in the residence and responded to Officers Pascuccio, Simonds and Gately's knock on the door of 605 Main Street. (Docket Entry Docket Entry # 50, ¶ 5) (Docket Entry # 58, ¶ 5). Plaintiff opened the door and asked Officers Pascuccio, Gately and Simonds “what was going on.” (Docket Entry # 50, ¶ 5) (Docket Entry # 58, ¶ 5). Officers Pascuccio, Gately and Simonds asked plaintiff four to five times to exit the property over a time period of one and a half to two minutes. Plaintiff refused. (Docket Entry # 50, ¶ 5) (Docket Entry # 58, ¶ 5). As stated in his deposition, Officer Pascuccio recalled that plaintiff “slammed the door, ” causing Officer Pascuccio's hand to go through the door's glass window pane. (Docket Entry # 46-12, pp. 8-11). As a result, Officer Pascuccio received a small cut on the bottom of the palm of his hand by his “pinky” finger. Officer Pascuccio applied a “little direct pressure to stop the bleeding.” (Docket Entry # 46-12, p. 10). Officer Pascuccio believed he had probable cause to arrest plaintiff for assault and battery with a dangerous weapon after his hand was cut by the broken glass. (Docket Entry # 46, p. 3). At his deposition, plaintiff stated he “calmly close[d] the back door and then Officer Pascuccio reached out across his body . . . and his hand struck that window pane and shattered it.” (Docket Entry # 46-7, p. 11). When Officer Gately asked plaintiff to open the door again, plaintiff complied, according to his deposition testimony. (Docket Entry # 46-7, p. 12). Plaintiff also stated he wanted to put some distance between himself and the officers and subsequently backed away from Officers Pascuccio, Gately and Simonds because “they were becoming more agitated and assaultive in their behavior.” (Docket Entry # 46-7, p. 13). Plaintiff testified he “backed as far as [he] could retreating into the room.” (Docket Entry # 46-7, p. 13).

         Officers Gately, Simonds and Pascuccio entered into the house through the open back door and plaintiff “yelled at them . . . demanded that they get out of the house, and . . . swore at them using expletives.” (Docket Entry # 46-7, p. 17). While in the house, Officer Pascuccio told plaintiff to put his hands behind his back as he was being placed under arrest. (Docket Entry # 46, ¶ 14).[8] Plaintiff heard a request directed at him by one of the officers but plaintiff spoke over the officer, interrupted him and ordered him out of the house. (Docket Entry # 46, ¶ 15). As stated in his deposition, plaintiff did not believe his father, John Devine, Sr., authorized Officers Pascuccio, Gately and Simonds to enter the house and plaintiff repeatedly asked the officers if they had a warrant. (Docket Entry # 46-7, pp. 9-14). Plaintiff confirmed, however, that if John Devine, Sr. had authorized the officers to enter the house that would have been “okay.” (Docket Entry # 46-7, p. 19).

         As stated by plaintiff at his deposition, “while one of [his] hands was being pinned behind [his] back, [the] hand was cut on a piece of glass that was laying on the floor or somewhere in the room.” (Docket Entry # 46-8, p. 4). Plaintiff also stated he was struck in the left eye by a closed fist. Plaintiff could not identify which officer struck him. (Docket Entry # 46, p. 4, ¶ 17). Plaintiff stated the entire incident lasted less than five minutes. (Docket Entry # 46, p. 4, ¶ 18). Officers Gately, Simonds and Pascuccio were in police uniforms at the time of the arrest and plaintiff knew they were police officers. (Docket Entry 46-7, pp. 7-8). Plaintiff was subsequently placed in custody. (Docket Entry # 50, ¶ 6) (Docket Entry # 58, ¶ 6).

         In answering plaintiff's interrogatories, Officer Pascuccio and Officer Simonds stated they did not physically assault plaintiff. (Docket Entry # 46-14, pp. 3, 6). Officer Simonds testified that Officers Pascuccio and Gately deployed capsicum. (Docket Entry # 53-3, p. 4). Officer Gately was trained in the use of pepper spray and believed plaintiff needed to be neutralized. (Docket Entry # 46, p. 4). The pepper spray did not neutralize plaintiff and Officers Pascuccio, Simonds and Gately then took hold of him and placed him in handcuffs. (Docket Entry # 46, p. 4). While being placed under arrest, plaintiff struck Officer Gately and Simonds. (Docket Entry # 46, ¶ 19).

         In answer to plaintiff's interrogatories, Officer Gately acknowledged he had physical contact with plaintiff while trying to restrain him by deploying capsicum, released once. (Docket Entry # 46-14, p. 9). Officer Gately confirmed he deployed capsicum as he advanced towards plaintiff stating, “‘You're under arrest.'” (Docket Entry # 53-2, pp. 4-5). Officer Gately also stated he did not cause bodily harm to plaintiff, though plaintiff was agitated from the “pepper spray.” (Docket Entry # 46-14, p. 10). Officer Gately confirmed plaintiff ended up on the floor during the arrest and stated he thought plaintiff “ended up with a cut on the side of [his] head.” (Docket Entry # 53-2, p. 6). The cut was covered with a bandage and required no additional medical attention. (Docket Entry # 46, p. 4). Although Officer Gately did not seek medical attention, he stated he was struck, kicked or punched “multiple times” during the incident. (Docket Entry # 53-2, p. 6).

         Plaintiff was arrested and charged with assault and battery on a person 60 years of age or older which caused bodily injury, assault with a dangerous weapon, two counts of assault and battery on a police officer and resisting arrest. (Docket Entry # 50, ¶ 7) (Docket Entry # 58, ¶ 7) (Docket Entry # 53-8). On June 18, 2012, plaintiff was arraigned on the charges at Woburn District Court. (Docket Entry # 50, ¶ 7) (Docket Entry # 58, ¶ 7) (Docket Entry # 53-8).

         At the arraignment, the court ordered an evaluation of plaintiff for competency and criminal responsibility. (Docket Entry # 50, ¶ 8) (Docket Entry # 58, ¶ 8). In particular, after a hearing with testimony from “Dr. Shapiro, ” the court ordered evaluation for competency and criminal responsibility to be conducted on an in-patient basis at Bridgewater State Hospital. (Docket Entry # 50, ¶ 8) (Docket Entry # 58, ¶ 8). On July 6, 2012, Woburn District Court found plaintiff not competent and ordered him committed pursuant to section six of Massachusetts General Laws chapter 123 (“chapter 123”). (Docket Entry # 50, ¶ 9) (Docket Entry # 58, ¶ 9).

         On July 19, 2012, Woburn District Court revoked the order to commit plaintiff for further examination. “[T]he Brockton District Court was to conduct an additional commitment hearing.” (Docket Entry # 50, ¶ 10) (Docket Entry # 58, ¶ 10). In October 2012, Woburn District Court ordered another examination of plaintiff under section 19 of chapter 123. (Docket Entry # 50, ¶ 11) (Docket Entry # 58, ¶ 11). After a hearing, the court ordered “plaintiff held without bail until the conditions set by the Superior Court could be met.” (Docket Entry # 50, ¶ 11) (Docket Entry # 58, ¶ 11) (Docket Entry # 50-5, p. 4).

         Meanwhile, plaintiff's father, John Devine, Sr., informed the Middlesex County District Attorney's office through counsel that he did not wish to proceed with criminal charges against plaintiff. (Docket Entry # 50, ¶ 12) (Docket Entry # 58, ¶ 12). Subsequently, on January 31, 2013, the count for assault and battery on an individual 60 years or older was nolle prossed. (Docket Entry # 50, ¶ 12) (Docket Entry # 58, ¶ 12). Woburn District Court ordered plaintiff re-examined for competency and criminal responsibility pursuant to section 15(a) of Massachusetts General Laws chapter 123 and plaintiff was held without bail. (Docket Entry # 50, ¶ 13) (Docket Entry # 58, ¶ 13).

         On February 13, 2013, the court ordered plaintiff examined for competency pursuant to section 15(b) of chapter 123. On March 1, 2013, Bridgewater State Hospital requested an extension of plaintiff's commitment. (Docket Entry # 50, ¶ 14) (Docket Entry # 58, ¶ 14). On March 9, 2013, Woburn District Court found plaintiff was not competent. (Docket Entry # 50, ¶ 15) (Docket Entry # 58, ¶ 15). Three months later on June 5, 2013, plaintiff was deemed competent and was to be released from the custody of Bridgewater State Hospital back into the custody of the Middlesex County Sheriff. (Docket Entry # 50, ¶ 16) (Docket Entry # 58, ¶ 16).

         On September 19, 2013, a judge found plaintiff not guilty of the two counts of assault and battery on a police officer and the one count of resisting arrest. (Docket Entry # 50, ¶ 17) (Docket Entry # 58, ¶ 17). On October 17, 2013, a judge found plaintiff not guilty of assault and battery with ...


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