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Eck v. Neal

United States District Court, D. Massachusetts

September 29, 2017

DAVID ECK, Plaintiff,
v.
JONATHAN NEAL, LAURIE BRADLEY-HARRINGTON, THOMAS KELLEY, and ROGER SILVA JR., in their individual capacities; and the TOWN OF KINGSTON, Defendants.

          MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.

         Plaintiff David Eck brings this case pursuant to 42 U.S.C. § 1983, the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, § 11H, 11I, and the Massachusetts Tort Claims Act (“MTCA”), Mass. Gen. Laws ch. 258, asserting various civil rights violations and torts claims against four individual police officers, Jonathan Neal, Laurie Bradley-Harrington, Thomas Kelley, and Roger Silva, Jr., and their employer, the Town of Kingston (“the Town”). Now pending before this Court is Defendants' Motion for Partial Summary Judgment [ECF No. 39] as to certain § 1983, MCRA, and tort claims (Counts I, III, and IV-VI). For the reasons set forth below, the motion is granted in part and denied in part.

         I. BACKGROUND

         The following facts are drawn from the statements of undisputed material facts and responses [ECF Nos. 41, 47, 52] unless otherwise noted. Where the facts are disputed, the Court views the record in the light most favorable to Eck, the non-moving party.[1] See Mariasch v. Gillette Co., 521 F.3d 68, 70 (1st Cir. 2008).

         Eck lives in Kingston, Massachusetts, and owns and operates a restaurant equipment business located on private property in Kingston. [ECF No. 42 ¶¶ 1, 7]. On April 30, 2012, Defendant Officers Bradley-Harrington and Neal, police officers for the Town of Kingston Police Department, were dispatched to Eck's business in response to a 911 call placed by one of Eck's customers. [ECF No. 52 ¶¶ 1, 9-10]. Upon their arrival, the customer told Officers Bradley-Harrington and Neal that she and Eck had gotten into an altercation concerning store credit and that he had threatened to kill her. Id. ¶¶ 11, 14-16. Officer Bradley-Harrington told the customer that they would speak to Eck. Id. ¶¶ 18-19. Eck stated that he directed the officers to leave his property, but they refused to do so. Id. ¶ 19A. Eck then told Officers Bradley-Harrington and Neal, “[g]et the fuck off my property. I don't want a Patrolman, I want a Deputy Supervisor.” Id. ¶ 23. Eck stated that at this point, Officer Neal said, “I've had enough of your shit” and then he “charged” and “attacked” Eck. Id. ¶¶ 19A, 23B. Eck asserted that Officer Neal jumped on him and slammed him against the wall. Id. ¶¶ 30A, 31A. A witness, Stuart Dewilde, stated that Eck was “stiff [with] his arms straight down” when Officers Bradley-Harrington and Neal placed Eck under arrest. Id. ¶ 25A. Dewilde also reported that during the arrest, Officer Bradley-Harrington pulled out a can of mace and threatened to use it against Eck if he tried to resist. Id. ¶ 25A. Eck's son, who also witnessed the incident, said that Eck put his hands behind his back as Officer Neal physically held him to place him under arrest. [ECF No. 42-4 at 39-40]. Eck asserted that the process of handcuffing him took only “a couple of seconds.” [ECF No. 52 ¶ 32A].

         As Eck was escorted to the police cruiser by Officers Bradley-Harrington and Neal, Eck's son informed them that Eck had recently had a heart attack and a stroke. [ECF No. 52 ¶ 36]. It is undisputed that Eck suffered a stroke in January of 2012 and was hospitalized for several weeks, a few months prior to the incident. Id. ¶ 37. Eck stated that when they got to the cruiser, Officer Neal wanted him to step into the vehicle, which he was unable to do because of his recent stroke. Id. ¶ 38A. Eck said that he told Officer Neal this, and that in response Officer Neal “slammed” him into the open door of the cruiser. Id. ¶ 38A. Eck further stated that Officer Neal then “threw [him] in head first on the floor of the cruiser.” Id. ¶ 41A. Eck's son made a 911 call to alert the dispatcher that “they had an incident going on” between his father and the officers, and he held the phone up close to his father to try to capture his father's moans of pain. Id. ¶ 48A; [ECF No. 42-4 at 31]. It is undisputed that Eck was lying on the floor of the cruiser “where the hump is” when the cruiser arrived at the police station. [ECF No. 52 ¶ 42B].

         While Officer Neal transported Eck to the police station, Officer Bradley-Harrington remained on the scene to speak with witnesses about the incident. Id. ¶ 44. Eck's son stated that when he asked Officer Bradley-Harrington why they had treated his father that way, she responded, “[w]e're sick of your shit. Your whole family is fucked up.” Id. ¶ 46A. Dewilde stated that he heard this conversation, and he reported that Bradley-Harrington added, “[y]ou want to know why your father's in the back of that cruiser? It's because he's fucking crazy. In fact, your whole family is fucking crazy.” Id. ¶ 46B; [ECF No. 47-2 at 17].

         Prior to this incident, Eck had filed numerous grievances and complaints against several Kingston Police officers, including against Officer Neal. [ECF No. 52 ¶ 8A]. These incidents were investigated, and in at least one case an involved officer received a reprimand for his conduct. [ECF No. 47-3 at 2, 7, 8, 13, 17, 24]. Specifically, Eck had complained that Officer Neal's conduct was “unprofessional and arrogant” and that he had made “three [previous] separate threats of arrest” against Eck. [ECF No. 52 ¶ 8B]. Eck described Neal as “part of the problem at Kingston Police Station.” Id. ¶ 8B.

         Eck also alleges that he suffered an additional assault at the hands of Officers Neal, Kelly, and Silva once he arrived at the Kingston Police Station. Id. ¶¶ 48B, 53. Because Defendants do not move for summary judgment on the allegations related to this second alleged incident, the Court will not address that incident at this time.

         Eck filed the Complaint on September 24, 2014, which contains six counts: § 1983 claims for civil rights violations against the defendant police officers (Counts I and II), a claim for MCRA violations against the defendant police officers (Count III), a malicious prosecution tort claim against Defendants Neal and Bradley-Harrington (Count IV), an assault and battery tort claim against all Defendant Police Officers (Count V), and a § 1983 Monell claim against the Defendant Town (Count VI). Defendants have now moved for summary judgment on Counts I, III, IV, V, and VI.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate where the movant can show 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 fact is material if its resolution might affect the outcome of the case under the controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). “A genuine issue exists as to such a fact if there is evidence from which a reasonable trier could decide the fact either way.” Id. “To succeed in showing that there is no genuine dispute of material fact, ” the moving party must point to “specific evidence in the record that would be admissible at trial.” Ocasio-Hernandez v. Fortuño-Burset, 777 F.3d 1, 4-5 (1st Cir. 2015). Once the movant takes the position that the record fails to make out any trialworthy question of material fact, “it is the burden of the nonmoving party to proffer facts sufficient to rebut the movant's assertions.” Nansamba v. North Shore Med. Ctr., Inc., 727 F.3d 33, 40 (1st Cir. 2013) (citation omitted).

         The Court “must take the evidence in the light most flattering to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.” Cochran, 328 F.3d at 6. “This standard is favorable to the nonmoving party, but it does not give him a free pass to trial.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). The court may discount “conclusory allegations, improbable inferences, and unsupported speculation.” Cochran, 328 F.3d at 6 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). “[T]he judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)) (alteration in original).

         III. DISCUSSION

         a. Count 1: § 1983 Claim Against Officers Bradley-Harrington and Neal

         In Count I, Eck advances three theories of liability: that he was arrested without probable cause; that the officers used excessive force when arresting him; and that the arrest violated his right to free speech.

         i. Motion for Judgment on Due Process Grounds

         Defendants first argue that they are entitled to summary judgment as to Count I because a plaintiff may not bring a Fourteenth Amendment due process claim where an adequate state law remedy is available, but it is clear from the complaint and Eck's brief that he is not bringing a Fourteenth Amendment due process claim. Rather, he alleges that he was arrested without probable cause and with excessive force in violation of the Fourth Amendment. See Manuel v. City of Joliet, III, 137 S.Ct. 911, 917-18 (2017) (“[The Fourth Amendment], standing alone, guarantee[s] ‘a fair and reliable determination of probable cause as a condition for any significant pretrial restraint.'” (internal citations omitted)); Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims that law enforcement officers have used excessive force . . . in the course of an arrest . . . should be analyzed under the Fourth Amendment . . . .”). Furthermore, even if Eck were asserting a due process claim, a substantive due process claim may be brought where a state law remedy exists. See Reid v. N.H., 56 F.3d 332, 336 n.8 (1st Cir. 1995) (noting that adequate state-law remedy precludes procedural due process claim under § 1983 (emphasis added)); Miga v. City of Holyoke, 497 N.E.2d 1, 8 (Mass. 1986) (“Because the plaintiff alleges a violation of the decedent's right to substantive due process under the Fourteenth Amendment, her claim under 42 U.S.C. § 1983 is not barred by the availability of a remedy for wrongful death under [state law].” (emphasis added)). Accordingly, Defendants are not entitled to summary judgment on this basis.

         ii. Excessive Force During Arrest

         Next, Defendants move for summary judgment as to Eck's claim that he was arrested with excessive force in violation of the Fourth Amendment. In analyzing whether a police officer used excessive force during an arrest, the “pertinent question is whether the force used was ‘objectively reasonable' under all the circumstances; that is, whether it was consistent with the amount of force that a reasonable police officer would think necessary to bring the arrestee into custody.” Gaudreault v. Municipality of Salem, 923 F.2d 203, 205 (1st Cir. 1990). An excessive use of force claim will succeed if it can be shown that a defendant “employed force that was unreasonable under all the circumstances.” Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009) (citing Graham, 490 U.S. at 396). Relevant to this inquiry are the “reasonableness factors” set forth in Graham, 490 U.S. at 396: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” At the summary judgment stage, “the court [is] bound to ask . . . whether under the plaintiff's version of the facts a reasonable officer should have known that the degree of force was plainly excessive.” Morelli, 552 F.3d at 25.

         The supported facts relevant to this inquiry, viewed in the light most favorable to Eck, are as follows. Eck claims that he was slammed against the wall by Officer Neal as he was being handcuffed. He further alleges that Officer Neal slammed him into the police cruiser door and threw him head first onto the floor of the police cruiser when he did not immediately comply with his ...


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