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Morris v. Tivnan

United States District Court, D. Massachusetts

March 31, 2017

MICHAEL MORRIS, Plaintiff,
v.
MATTHEW TIVNAN, et al., Defendants.

          ORDER

          David H. Hennessy United States Magistrate Judge.

         Defendants Matthew and Brendon Tivnan jointly, and Defendant David Doherty separately, [1] each filed a Motion for Summary Judgment as to Counts III and IV of the Complaint (Docket #45 and #49). Count III alleges excessive force under 42 U.S.C. § 1983 by Matthew Tivnan; and Count IV alleges a failure to intervene by both Brendon Tivnan and David Doherty. (See Docket #1 ¶¶ 13-14). Plaintiff Michael Morris filed an opposition and an Additional Statement of Material Facts in response to both motions. (See Docket #65 and #66). For the reasons that follow, the Motions for Summary Judgment are DENIED as to Count III and GRANTED as to Count IV.

         I. BACKGROUND[2]

         On June 17, 2013, at around 10:54 p.m., Plaintiff called 9-1-1 to report a disturbance outside his third-floor apartment on Oread Street in Worcester. (Docket #51 ¶¶ 1-2). Three Worcester police officers, Defendants Matthew Tivnan, Brendon Tivnan, and David Doherty, arrived shortly thereafter.[3] (Id. ¶¶ 3). The disturbance had already dissipated upon their arrival, and the officers subsequently spoke to some residents in the area about the earlier occurrence, among other matters. (Id. ¶ 4). The Plaintiff, after hearing some laughter among the officers and residents, voiced his displeasure from his third-floor window about what he perceived to be a lack of an investigation by the officers into the disturbance. (Id. ¶¶ 5-7). Officer Brendon Tivnan then shined his flashlight up at the window, and in turn at Plaintiff, to see where the voice was coming from, and Plaintiff asked that the flashlight not be shined in his eyes. (Id. ¶ 8). Officer Matthew Tivnan then told the Plaintiff to come downstairs to discuss the issue, as opposed to speaking from his third-floor window. (Id. ¶ 9). Plaintiff agreed and immediately came downstairs to the landing of the stairs up to the apartment building, adjacent to which was a six-foot-tall chain link fence. (Id. ¶¶ 10, 19).

         The parties dispute the nature of Plaintiff's demeanor from the window and what occurred next. According to Defendants, before the Plaintiff came downstairs he had been “yelling” and “loudly express[ing]” himself from the third-floor window. (Docket #51 ¶¶ 7-9). Once he came downstairs, Plaintiff continued to yell and was in an “excitable state.” (Docket #51 ¶ 11-14). Officer Matthew Tivnan told Plaintiff to quiet down and return inside several times, but Plaintiff refused and created “a significant commotion and disturbance.” (Docket #51 ¶¶ 11-14). After several refusals, Officer Matthew Tivnan informed Plaintiff that he was being placed under arrest for disorderly conduct and disturbing the peace. (Docket #51 ¶ 18). Officer Matthew Tivnan put Plaintiff's left arm behind his back and “placed him against a chain link fence . . . in order to immobilize and control [Plaintiff's] body during the arrest process.” (Docket #51 ¶ 19) (footnote omitted).

         Plaintiff, on the other hand, contends that he was not yelling when he spoke to the police from his window, and that when he came downstairs “there was no loud talking, cursing . . . or other histrionics.” (Docket #68 ¶¶ 25-26, 40-41). Instead, Plaintiff, while downstairs, tried to calmly voice his concern about crime in the neighborhood when Officer Matthew Tivnan interrupted him and told him to go back upstairs but Plaintiff refused, saying he would prefer to stay outside. (Docket #68 ¶ 43). Officer Matthew Tivnan told Plaintiff that if he continued to refuse to go back inside he would “go to jail.” (Docket #68 ¶ 43). Plaintiff, however, did not immediately go back inside. (Docket #68 ¶¶ 40, 43-44). Officer Matthew Tivnan then grabbed Plaintiff's left arm and smashed Plaintiff's head into a chain-link fence three times while Plaintiff's arm was behind his back. (Docket #68 ¶¶ 46-47). Plaintiff did not sustain any visible injuries nor did he complain of any injuries at the scene or during booking. (Docket #66-1 ¶¶ 30-31). The next day, however, Plaintiff went to a hospital and complained of a headache and stiff neck. (Docket #68 ¶¶ 56-57).

         With regard to Defendant Officer Brendon Tivnan, it is undisputed that, aside from when Brendon shined the flashlight at him, Plaintiff and Brendon had no interaction and Brendon did not assist in the arrest. (Docket #66-1 ¶ 33). Right around the time of the arrest, Officer Brendon Tivnan was standing about six feet away from Officer Doherty. (Docket #65-4 at 36).

         With regard to Defendant Doherty, it is uncontested that Doherty also did not participate in Plaintiff's arrest and was on a sidewalk between eight and ten feet[4] behind the Plaintiff while Plaintiff was arrested. (Docket #47 ¶¶ 36, 40; Docket #65-1 ¶ 29). During the arrest, Plaintiff was facing away from Doherty and thus was not able to see Defendant Doherty. (Docket #65-1 ¶ 28; Docket #65-4 at 37). Plaintiff stated that he believes Doherty behaved himself in a very professional manner throughout the incident. (Docket #47 ¶ 41).

         Notably, irrespective of Plaintiff's alleged insolence, it is undisputed that Plaintiff offered no physical resistance during the arrest process. (Docket #51 ¶ 22; Docket #66-1 ¶ 22; Docket #68 ¶ 67). Additionally, the uncontroverted evidence in the record shows that Officer Matthew Tivnan's arrest of Plaintiff took no more than a few seconds.[5] Supporting this is the testimony of Brendon Tivnan stating that “[t]he arrest of [Plaintiff] took mere seconds, ” (Docket #51-3 ¶ 12), and the testimony of a percipient witness, Pamela Williams, stating that “[a] few seconds” passed between the time Matthew Tivnan made contact with Plaintiff and handcuffed Plaintiff, (Docket #51-5 at 2). Indeed, Plaintiff himself deposed that the incident “couldn't have been any more than five or ten seconds. Everything was moving pretty quickly.” (Docket #65-4 at 38).

         As a result of Morris's alleged conduct, criminal charges were brought against Morris for disturbing the peace and disorderly conduct. (Docket #47 ¶ 42). Both charges were reduced to civil infractions, and after a bench trial Plaintiff was ultimately found not responsible for disorderly conduct but responsible for disturbing the peace and assessed a $100.00 fine. (Docket #47 ¶ 42-43).

         II. PROCEDURAL BACKGROUND

         On November 10, 2014, Plaintiff filed a complaint against Defendants Matthew Tivnan, Brendon Tivnan, and David Doherty, among others, asserting five claims, including excessive force by Matthew Tivnan (Count III) and failure to intervene by Brendon Tivnan and Doherty (Count IV). (Docket #1). Defendants Matthew Tivnan, Brendon Tivnan, and Doherty, among others, subsequently filed a Partial Motion to Dismiss. (Docket #8). After a hearing on the matter, on October 23, 2015 I issued an Order granting in part and denying in part Defendants' motion. (Docket #29). As a result of that Order, only Counts III and IV remained. (See Docket #29).

         On August 5, 2016, Defendant David Doherty, and on the same date Defendants Matthew and Brendon Tivnan, filed Motions for Summary Judgment as to Counts III and IV. (See Docket #45, 49). On September 9, 2016, ...


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