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Humphrey v. Town of Spencer

United States District Court, D. Massachusetts

March 26, 2017

JOHN W. HUMPHREY Plaintiff,
v.
TOWN OF SPENCER, et al., Defendants.

          REPORT AND RECOMMENDATION

          David H. Hennessy, United States Magistrate Judge

         By Order of Reference dated May 15, 2015 (Docket #12), and pursuant to 28 U.S.C. § 636(b)(1)(A), this matter, including all other pretrial and dispositive motions, was referred to me for a ruling on Defendants'[1] collective Motion for Partial Summary Judgment (Docket #60). Plaintiff John W. Humphrey filed an opposition to the motion. (Docket #68). This matter is now ripe for adjudication. In consideration of the foregoing submissions and for the reasons that follow, I recommend that Defendants' Motion to Partial Summary Judgment (Docket #60) be GRANTED as to Counts V, VII, and VIII and DENIED as to Count VI.

         I. BACKGROUND[2]

         The Incident

         On September 22, 2011, Plaintiff Humphrey was living at Kim Thomas's apartment on Elm Street in Spencer with his girlfriend, Katy Lajeunesse. (Docket #67-1 ¶ 1). That evening, Ms. Lajeunesse was on the phone with her mother when Plaintiff and Lajeunesse got into an argument. (Id. ¶ 2). At around 11:16 p.m. the call disconnected during the argument, prompting Lajeunesse's mother to call 9-1-1 and report a domestic disturbance. (Docket #67 ¶¶ 8-9). After receiving the report, Spencer Police discovered that Plaintiff had an outstanding arrest warrant and a criminal history which included convictions for assault and battery, criminal threats, intimidation, and multiple abuse prevention orders. (Docket #67 ¶¶ 11-12). Moreover, Plaintiff was already known to several members of the Spencer Police Department (“SPD”) as a result of previous encounters with him, including one incident where he threatened to harm officers or himself with a knife. (Docket #67 ¶ 13).

         Defendant Officer Todd LaPorte and Defendant Officer Paul Magierowski were apprised of Plaintiff's criminal history at the Spencer Police Department. (Docket #67 ¶ 14). Officer LaPorte then contacted the East Brookfield Police Department and the Massachusetts State Police (“MSP”) for backup. (Docket #67 ¶ 19). As a result, East Brookfield Officer Joseph Lazarick reported directly to the Spencer Police Station where the officers, along with Sergeant George L. Edwards, conferred prior to reporting to the scene. (See Docket #67 ¶¶ 21, 23-29). Massachusetts State Troopers Marland Rogers and Matthew Mormino later responded directly to the scene, having been briefed by LaPorte about the nature of the call and Plaintiff's criminal history. (Docket #67 ¶¶ 36-37).

         Upon arrival at the scene, LaPorte and Magierowski knocked on the door of the apartment and Kim Thomas answered, identifying herself as a tenant of the apartment. (Docket #67 ¶¶ 30-31). When asked for the whereabouts of Plaintiff and his girlfriend, Thomas initially denied that either was present, but then admitted that they were both in the apartment. (Docket #67 ¶¶ 33-35). LaPorte and Magierowski proceeded into the apartment until they reached a locked door separating the kitchen from the living room. (Docket #67 ¶ 41).

         LaPorte knocked on the door and received no response. (Docket #67 ¶ 43). According to Plaintiff, when he heard the police knock at the door he ran to the bedroom off the living room and hid behind the bedroom door because he knew there was a warrant for his arrest. (Docket #67 ¶ 44). LaPorte again knocked and Lajeunesse opened the door. (Docket #67 ¶ 46). Lajeunesse denied any domestic abuse earlier in the evening and said that Plaintiff had left the apartment hours before. (Docket #67 ¶¶ 47-49).

         LaPorte and Magierowski asked Lajeunesse to step out of the doorway and she complied. (Docket #67 ¶ 50). Both officers stepped into the living room. (Docket #67 ¶ 52). The room was dimly lit. (Docket #67-1 ¶ 66). LaPorte had his flashlight on and gun drawn in the low-ready position as he and Magierowski began to search for Plaintiff. (Docket #67-1 ¶ 62).[3] As this occurred, the two Troopers entered the apartment, but remained near the apartment entrance separate from LaPorte and Magierowski. (Docket #67-1 ¶ 64). Eventually, only the bedroom remained to be searched. (Docket #67-1 ¶ 65). The door to the bedroom which opened inwardly from the living room was partially open. (Docket #67-1 ¶¶ 5-6). The bedroom was dark. (Docket #67-1 ¶ 66).

         The parties dispute what occurred next. According to the Plaintiff, he was hiding behind the door with his hands raised above the door. (Docket #67-1 ¶ 4). Officer LaPorte crossed the threshold into the bedroom, kicked the partially open door with his foot and leaned into the door, thereby “smushing” Plaintiff against the wall. (Docket #67-1 ¶¶ 7-8). Plaintiff's hands stayed up and he “surrendered multiple times, ” but Officer LaPorte nonetheless shot him in his abdomen. (Docket #67-1 ¶ 7). After he was shot, LaPorte told Plaintiff “I didn't [shoot you]. I only tased you, ” (Docket #67-1 ¶ 10), and Plaintiff heard another officer ask LaPorte, “[W]hy [did] you shoot him[?] You [were] only supposed to tase him[.]” (Docket #67-1 ¶ 10).

         In contrast, according to Defendants, Magierowski remained at the bedroom entry with his Taser drawn. (Docket #67-1 ¶ 39). LaPorte entered the bedroom with his flashlight on and gun drawn, and proceeded to search the room in a counterclockwise direction. (Docket #61 ¶ 54; Docket #67-1 ¶ 72). When the only space left to be cleared was behind the partially open door, LaPorte, while facing the door, pulled the door and felt resistance, as if someone was holding it open from the opposite side. (Docket #67-1 ¶¶ 72-77). LaPorte then pulled the door harder; it quickly shut, revealing in the light from LaPorte's flashlight the Plaintiff standing only a few feet away. (Docket #67-1 ¶¶ 76-78). Plaintiff took a step toward LaPorte and, without being able to see Plaintiff's hands, LaPorte shot Plaintiff once in his abdomen.[4] (Docket #67-1 ¶¶ 78-79, 85).

         LaPorte and Magierowski immediately began treating Plaintiff who was conscious and could hear them speaking. (Docket #67 ¶ 57). The Spencer Rescue Squad arrived shortly thereafter to assume medical care and bring Plaintiff to the hospital. (Docket #67 ¶ 58).

         The officers at the scene with LaPorte did not discuss the shooting. For instance, in response to LaPorte trying to explain what happened, Lazarick said, “I don't want you to, you know, get into any specifics. It's best that you, you know, talk to your union rep.” (Docket #67-1 ¶ 17). Additionally, Lazarick again stopped LaPorte from discussing the shooting later at the station, deposing that LaPorte “began to explain but I told him not to.” (Docket #67-1 ¶ 18). Similarly, Magierowski did not ask LaPorte about the incident because someone told him “basically not to talk about the incident.” (Docket #67-1 ¶ 24). Lastly, neither Trooper Mormino nor Trooper Rogers asked LaPorte about the incident, and each deposed that if he had tried to talk to them they probably would have discouraged that discussion. (Docket #67-1 ¶¶ 25, 29). LaPorte spoke to Sergeant Edwards and Chief David Darrin after the incident, but no account of that conversation was recorded. (Docket #67-1 ¶¶ 115, 117, 119).

         After the shooting, Chief Darrin asked MSP to conduct an investigation to determine whether criminal charges should be brought against LaPorte. (Docket #67-1 ¶ 110). As a result of its investigation, MSP obtained written statements from the witnesses, including Plaintiff Humphrey, Katy Lajeunesse, Kim Thomas, Officer LaPorte, Officer Magierowski, and Officer Lazarick. (See Docket #61-10 at 6). Ultimately LaPorte was not charged.

         (Docket #67-1 ¶ 123). Independent of the investigation, Chief Darrin did not interview witnesses, (Docket #67-1 ¶¶ 124-25), instead deferring to the MSP investigation and report. (Docket #61-11 at 46).

         With regard to Officer LaPorte's training and experience, LaPorte received his training at the Boylston Regional police Academy, run by the Massachusetts Criminal Justice Training Council. (Docket #61 ¶ 65). In the academy, LaPorte received training on subjects including criminal and constitutional law, first aid, CPR, firearms, use of force, and defensive tactics. (Docket #61 ¶ 66). Neither LaPorte nor Magierowski have any disciplinary history, and no complaint has ever been filed against either officer. (Docket #61-11 at 24-25).

         The use of force training curriculum provides, in pertinent part, that an officer “may use deadly force in self-defense or defense of others if the four following conditions exist: a) The subject has the ability (e.g., a firearm or a knife) to cause death or serious bodily harm. b) The subject has the opportunity to use his or her ability (e.g., a firearm or a knife) to cause death or serious bodily injury. c) The subject's threat of causing death or serious bodily injury is imminent (a life is in jeopardy). d) The officer has no reasonable alternative for addressing the subject.” (Docket #67-1 ¶ 56 (internal citations omitted)). SPD has a use of force policy that requires that officers use force “[t]hat is reasonably necessary to accomplish lawful objectives, ” and that deadly force is authorized under a limited set of circumstances. (Docket #67-1 ¶ 58; see Docket #67-6). In addition, pursuant to that policy, the Chief of Spencer Police is required to “conduct an administrative review of all reports submitted to determine whether the use of force was in compliance with departmental policy and procedure.” (Docket #67-1 ¶ 59).

         Municipal Liability and Supervisory Claims

         SPD has approximately seventeen sworn officers and does not have an internal affairs unit. (Docket #61-11 at 8; Docket #67-1 ¶ 99). Darrin has been the Chief for over 18 years. (Docket #67-1 ¶ 90). Darrin became the Chief shortly after MSP's management of SPD in 1998 in response to allegations of misuse of funds and “certain types of force.” (Docket #67-1 ¶¶ 91, 95). When a citizen complaint is received, it is directed either to the officer in charge or directly to the Chief of Police. (Docket #67-1 ¶ 97). The Chief has the authority to give verbal and written reprimands or issue suspensions for less than five days. (Docket #67-1 ¶ 102). Any punitive action beyond that must be approved by the Town. (Docket #67-1 ¶ 101).

         In the past ten years, Chief Darrin has issued only one suspension for one day for conduct unbecoming of a police officer. (Docket #67-1 ¶ 103). Darrin reviews every police report generated by officers for, among other things, compliance with policies and procedures. (Docket #61-11 ¶ 19). Darrin has also never sustained a complaint of excessive force against an SPD officer. (Docket #67-1 ¶ 104). Although he tracks the use of force where a weapon is involved, Darrin does not track the hands-only use of force.

         II. PROCEDURAL BACKGROUND

         Plaintiff initiated this action by filing a complaint on September 5, 2014. (Docket #1). In his complaint, Plaintiff asserts the following nine claims:

Count I Section 1983 - Excessive force Against Officer LaPorte
Count II Common Law Assault and Battery; Against Officer LaPorte
Count III Negligent Infliction of Emotional Distress Against Officer LaPorte
Count IV Intentional Infliction of Emotional Distress Against Officer LaPorte
Count V Massachusetts Civil Rights Act; G.L. c. 12, § 11I Against Officer LaPorte, Sgt. Edwards and Chief Darrin
Count VI Massachusetts Tort Claims Act 258 Against Town of Spencer
Count VII Section 1983 - Conspiracy Against Officers LaPorte ...

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