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Jenkins v. City of Taunton

United States District Court, D. Massachusetts

September 29, 2017

ROSEMARY JENKINS, Plaintiff,
v.
CITY OF TAUNTON, CHIEF EDWARD WALSH, MARK BRADY, ROBERT KRAMER, MATTHEW SKWARTO, RALPH SCHLAGETER, JEFFREY MARTIN, and FRED BOLTON, Defendants.

          MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 58)

          MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE.

         Pending before this court is a motion for summary judgment filed by defendants City of Taunton, Chief Edward Walsh (“Walsh”), Mark Brady (“Brady”), Robert Kramer (“Kramer”), Matthew Skwarto (“Skwarto”), Ralph Schlageter (“Schlageter”), Jeffrey Martin (“Martin”), and Fred Bolton (“Bolton”) (collectively “defendants”). (Docket Entry # 58). Plaintiff Rosemary Jenkins (“plaintiff”) opposes the motion. (Docket Entry # 62). After conducting a hearing, this court took the motion (Docket Entry # 58) under advisement.

         PROCEDURAL BACKGROUND

         The complaint sets out the following claims: (1) an unreasonable search against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton in violation of 42 U.S.C. § 1983 (“section 1983”) (Count I); (2) a false arrest against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton in violation of section 1983 (Count II); (3) excessive force in violation of section 1983 against Kramer and another unidentified officer (Count III); (4) a failure to intervene in violation of section 1983 against Brady (Count IV); (5) a failure to intervene to prevent the unreasonable search and the use of excessive force in violation of section 1983 against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count V); (6) a due process violation under section 1983 against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count VI); (7) a conspiracy to violate plaintiff's constitutional rights in violation of the Fourth, Fifth, and Fourteenth Amendments under section 1983 against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count VII); (8) an unconstitutional policy in violation of section 1983 against the City of Taunton and Walsh (Count VIII); (9) a violation of Massachusetts General Laws chapter 12, section 11I (“the MCRA”) against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count IX); (10) assault and battery against Kramer and an unidentified officer (Count X); (11) a false arrest and imprisonment against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count XI); (12) malicious prosecution against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count XII); (13) abuse of process against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton (Count XIII); and (14) intentional infliction of emotional distress against “defendants” (Count XIV). (Docket Entry # 1).

         On November 17, 2015, the parties filed a joint stipulation dismissing Count VIII, which “contains the only claims against . . . City of Taunton and Edward Walsh.” (Docket Entry # 36). Subsequently on December 13, 2016, the parties filed a joint stipulation dismissing the following claims against the following defendants: (1) Count II against Brady, Skwarto, Schlageter, Martin, and Bolton; (2) Count IV in its entirety; (3) Count VI against Brady, Bolton, and Martin; (4) Count IX against Brady, Skwarto, Schlageter, Martin, and Bolton as to the use of force and the wrongful arrest of plaintiff; (5) Count XI against Brady, Skwarto, Schlageter, Martin, and Bolton; (6) Counts XII and XIII against Brady, Martin, and Bolton; and (7) Count XIV against Brady, Skwarto, Schlageter, Martin, and Bolton “as to the use of force against and the wrongful arrest of plaintiff.” (Docket Entry # 56).

         The joint stipulation of dismissal describes Count XIV as setting out a “use of force against and wrongful arrest of the plaintiff.” (Docket Entry # 56). As framed in the complaint, however, Count XIV is a claim for intentional infliction of emotional distress against “Defendants.” The parties are therefore directed to confer and file a status report clarifying paragraph seven of the joint stipulation within 14 days of the date of this opinion.

         STATEMENT OF FACTS

         1. General Background

         Plaintiff is a 66-year-old female. (Docket Entry # 63, ¶ 1) (Docket Entry # 69, ¶ 1). On August 2, 2013, she resided in apartment three of a building located at 112 High Street (“the building”) in Taunton, Massachusetts. (Docket Entry # 63, ¶ 2) (Docket Entry # 69, ¶ 2). The building is a three story, multi-family residential apartment building with four apartment units. (Docket Entry # 63, ¶ 3) (Docket Entry # 69, ¶ 3). It has a front entrance and a rear entrance which leads to separate stairwells. (Docket Entry # 60-2, pp. 47-59). The apartment in which plaintiff resided, apartment three, is the only residence located on the third floor. (Docket Entry # 63, ¶ 3) (Docket Entry # 69, ¶ 3).

         Plaintiff's son, Domingo Jenkins Sr. (“Domingo”), lived on the first floor of the building. (Docket Entry # 63, ¶ 4) (Docket Entry # 69, ¶ 4). Plaintiff's other son, Reginald Jenkins Sr. (“Reginald”), from whom plaintiff is estranged (Docket Entry # 63, ¶ 5) (Docket Entry # 69, ¶ 5), never resided in the building. (Docket Entry # 63, ¶ 6) (Docket Entry # 69, ¶ 6). Reginald had been arrested several times by members of the Taunton Police Department (“TPD”), but these arrests never occurred at the building. (Docket Entry # 63, ¶ 13) (Docket Entry # 69, ¶ 13). As of August 2, 2013, according to Skwarto's affidavit, Reginald's address was listed in TPD's computer system as 112 High Street. (Docket Entry # 60-13, ¶ 7). A TPD log incident report for an incident that occurred on July 12, 2013, in which a group including Reginald allegedly threatened to shoot up a local restaurant listed Reginald's address as 112 High Street without an apartment number. (Docket Entry # 60-3, pp. 1-2). Another TPD log entry dated July 31, 2013, which described an incident in which Reginald purportedly committed an assault and battery on an individual, also listed Reginald's address as 112 High Street without an apartment number.[1] (Docket Entry # 60-4, pp. 1-2).

         Since 2005, plaintiff has had full legal custody of five of Reginald's children. (Docket Entry # 63, ¶ 7) (Docket Entry # 69, ¶ 7). The children occasionally walked to Reginald's house on Union Street in Taunton. (Docket Entry # 63, ¶ 8) (Docket Entry # 69, ¶ 8). Reginald has visited his children at the building, but the record is unclear as to the frequency of such visits. (Docket Entry # 60-2, pp. 26-27). In August 2013, the children were approximately eight, nine, 12, 14, and 19 years old. (Docket Entry # 63, ¶ 9) (Docket Entry # 69, ¶ 9). Reginald's sixth child, Reginald Jenkins, Jr. (“Reginald Jr.”), was approximately 16 in August 2013 and did not live with plaintiff. (Docket Entry # 63, ¶ 10) (Docket Entry # 69, ¶ 10). Prior to August 2, 2013, plaintiff had called TPD on multiple occasions for assistance in dealing with her grandchildren. (Docket Entry # 63, ¶ 11) (Docket Entry # 69, ¶ 11). As a result, members of TPD were aware that plaintiff lived at the multi-unit building with her grandchildren and, drawing reasonable inferences, that she lived in apartment three on the third floor. (Docket Entry # 63, ¶ 12) (Docket Entry # 69, ¶ 12).

         2. The Shooting

         According to a statement by Assistant District Attorney Brian Griffin (“Griffin”) during a November 2014 guilty plea proceeding, a young man named Darian Robinson (“Robinson”), together with his friends, confronted Reginald in Taunton on August 2, 2013 and then returned to Fall River, Massachusetts. (Docket Entry # 60-6, p. 11).[2] Griffin further stated that later on August 2, 2013, Robinson returned with his aunt Alicia Burton (“Burton”) and Burton's son Andre Thompson (“Thompson”) to Taunton “where they knew the defendant [Reginald] lived.” (Docket Entry # 60-6, p. 11). With respect to the specific location of the confrontation, Griffin stated that, “The confrontation took place out in front of his [Reginald's] house.” (Docket Entry # 60-6, p. 11). The address for the house was not mentioned in the guilty plea proceeding. (Docket Entry # 60-6). During the proceeding, the Associate Justice of the Superior Court (“the judge”) asked Reginald, who was sworn, if he was “confronted by them when they came from Fall River back up to Taunton. In other words, they showed up at your property after the first incident.” (Docket Entry # 60-6, pp. 14-15). In response, Reginald answered, “Yes, sir.” (Docket Entry # 60-6, p. 15). Reginald did not indicate whether the affirmative response was directed only towards a portion of the judge's question, or towards everything including the part which would confirm Reginald's ownership of the property. (Docket Entry # 60-6, p. 15).

         Griffin then stated that, after Burton, Thompson, and Robinson met with Reginald at about 9:30 p.m. that evening, Reginald “pointed the gun down to the body, the lower body of the three [Burton, Thompson, and Robinson] and fired one shot.” (Docket Entry # 60-6, p. 12). “That shot hit Andre Thompson in the leg . . ..” (Docket Entry # 60-6, p. 12). Reginald then pointed the gun at Burton's chest, threatening her. (Docket Entry # 60-6, p. 12).

         3. Dispatch Calls

         At approximately 9:19 p.m. on August 2, 2013, TPD received multiple 911 calls for the shooting described in the preceding paragraph. (Docket Entry # 60-13, ¶ 11). Approximately four minutes later at 9:23 p.m., Taunton Police dispatch sent a radio communication to all police officers which stated that Burton had informed dispatch that she had witnessed a shooting which occurred in the parking lot of Alan Walker Insurance located at 120 High Street. (Docket Entry # 63-4, pp. 2, 9-10, 16) (Docket Entry # 69-1).

         According to the affidavit by Skwarto, dispatch informed him that Reginald “went into his apartment at 112 High Street after the shooting.”[3] (Docket Entry # 60-13, ¶ 15). The dispatch recording states, “We are looking for Reggy Jenkins [Reginald], he just shot at Burton's son and she watched him do it.” (Docket Entry # 69-1). The dispatch recording does not mention the address 112 High Street, but only states that, “he's [Reginald] inside the apartment over there where he lives.” (Docket Entry # 69-1). The recording also states that Burton informed dispatchers that, “Reggy [Reginald] shot her son, he's inside of his apartment over there right now, ” and “she's [Burton] on the way down to the station to give a statement.” (Docket Entry # 69-1). The dispatch continued by stating, “She [Burton] said he [Reginald] shot her son and then, I think she said, she was screaming on the phone, she said he grazed his leg or something, and she went to confront him, he shot her too or something, and he's, uh [sic], he's inside the apartment over there where he lives.” (Docket Entry # 69-1). An unknown officer responded to dispatch by asking, “Who's held up inside Reggy [Reginald] or Andre [Thompson]?” (Docket Entry # 69-1). Dispatch responded by stating, “No Reggy [Reginald], the shooter, I'll find out as soon as she [Burton] gets here. Seal it [the building] off until she gets here and I'll let you know.” (Docket Entry 69-1).

         Turning to the police reports, Kramer did not report that dispatch told him where Reginald went after the shooting. (Docket Entry # 63-4, p. 3). Instead, Kramer's report states that, “It is known that Reginald Jenkins lives at and has been observed at 112 High Street on a daily basis.” (Docket Entry # 63-4, p. 3). Skwarto's police report states that, “I am further aware that Reginald . . . has an active warrant for his arrest . . . listing an address of 112 High St.” (Docket Entry # 63-4, p. 11). Schlageter's police report reflects that, “Dispatcher . . . gave an update that . . . Reginald Jenkins was the shooter and that he fled the area in an unknown direction.” (Docket Entry # 63-4, p. 16) (emphasis added).

         4. Immediately before Police Entry into Building

         In response to the dispatch, Bolton and Skwarto were the first police officers to arrive at the building, followed by Schlageter, Kramer, Martin, and Brady thereafter (collectively “responding officers”). (Docket Entry # 63, ¶¶ 16-17) (Docket Entry # 69, ¶¶ 16-17) (Docket Entry # 60-13, ¶ 19). When Skwarto arrived at the building, he encountered Reginald Jr. who was “emerging from around the side of the Allan M. Walker Insurance building” and, according to Skwarto's police report, stated that “‘something happened with my dad, I'm going in the house [the building] to see if everything is ok.'”[4] (Docket Entry # 63-4, p. 10-11). Reginald Jr. “continued toward 112 High St.” and Skwarto accompanied him. (Docket Entry # 63-4, p. 11).

         Schlageter then arrived at the building and observed Reginald's teenage son (Reginald Jr.) standing in the parking lot of a business on High Street. (Docket Entry # 63, ¶ 20) (Docket Entry # 69, ¶ 20). Thereafter, Schlageter “looked to the third floor of 112 High Street” and “saw several people looking out the window.” (Docket Entry # 63-4, p. 16-17). When Kramer arrived at the scene, he reported observing “Skwarto walking with Reginald Jenkins [Jr.] in the parking lot of Alan Walker Insurance.” (Docket Entry # 63-4, p. 3). Kramer also reported that, “Rosemary Jenkins and several children were observed to be looking out of the second floor apartment and yelling out to officers.”[5] (Docket Entry # 63-4, p. 4). None of the responding officers observed any ongoing altercation or Reginald fleeing the building. (Docket Entry # 63, ¶¶ 16-17, 24) (Docket Entry # 69, ¶¶ 16-17, 24).

         From plaintiff's perspective, about 30 minutes prior to the police arriving, plaintiff left her apartment and told the children inside to lock the door. (Docket Entry # 60-2, p. 73). She then sat outside in the driveway adjacent to the property alone until the police arrived. (Docket Entry # 60-2, p. 77-78).

         5. Entering Plaintiff's Apartment

         After all of the responding officers arrived at the building, they decided to enter the building and search for Reginald. (Docket Entry # 63-4, pp. 5, 11, 17). Skwarto stated that, “when the [responding officers] entered the common area of the building[, ] they observed Plaintiff exit her apartment and lock the door behind her.” (Docket Entry # 63, ¶ 25) (Docket Entry # 69, ¶ 25). At plaintiff's deposition, however, plaintiff testified that she was outside the building when the police arrived.[6] (Docket Entry # 60-2, p. 80). Skwarto asked plaintiff if Reginald was in the apartment, to which she responded, “‘You guys ain't going in.'” (Docket Entry # 63, ¶ 26) (Docket Entry # 69, ¶ 26).

         Despite the fact that plaintiff did not give the responding officers permission to enter her apartment (Docket Entry # 63, ¶ 26) (Docket Entry # 69, ¶ 26), Skwarto kicked plaintiff's door and responding officers entered plaintiff's apartment with their weapons drawn, frightening plaintiff's grandchildren who were playing in the living room. (Docket Entry # 63, ¶¶ 27-28) (Docket Entry # 69, ¶¶ 27-28). As it turned out, Reginald was not inside plaintiff's apartment. (Docket Entry # 63, ¶ 43) (Docket Entry # 69, ¶ 43) (Docket Entry # 63-4, p. 12).

         6. Activities Inside Plaintiff's Apartment

         Schlageter reported that, “‘At some point, [plaintiff] walked into the apartment and began to argue with Detective Kramer.'” (Docket Entry # 63, ¶ 31) (Docket Entry # 69, ¶ 31). Schlageter also reported that, “‘Kramer advised [the plaintiff] to calm down several times'” and that she “‘refused to calm down and was placed under arrest.'” (Docket Entry # 63, ¶ 31) (Docket Entry # 69, ¶ 31) (Docket Entry # 63-4, p. 19). At no point in Schlageter's report did he state that plaintiff made “‘contact'” with Kramer. (Docket Entry # 63, ¶ 31) (Docket Entry # 69, ¶ 31).

         According to Skwarto's police report, plaintiff “‘was still yelling, directing her anger at Detective Kramer. She continually followed him around preventing him from performing his duty . . . [plaintiff] made contact with Detectives [the responding officers] numerous times during her tirade and subsequently, after at least a dozen warnings that [he] issued her, she was placed in handcuffs.'” (Docket Entry # 63, ¶ 29) (Docket Entry # 69, ¶ 29).

         At her deposition, plaintiff stated that she went into her kitchen and then bedroom to get her phone during this time. In response to the handcuffing of her grandson, plaintiff asked the responding officers, “‘Why they doing him like that?'” (Docket Entry # 60-2, pp. 99, 120). At her deposition, plaintiff stated that Kramer did not have contact with her prior to her being handcuffed. (Docket Entry # 60-2, p. 121). Plaintiff also testified at her deposition, that, an unidentified police officer shoved her to prevent her from entering her bedroom. (Docket Entry # 60-2, pp. 108-09). More specifically, Kramer hit plaintiff in the back and she fell to her knees striking a living room couch. (Docket Entry # 60-2, pp. 121-122) (Docket Entry # 60, ¶ 38).[7]Kramer did not say anything prior to arresting plaintiff. (Docket Entry # 60-2, pp. 120-121). Kramer then placed the handcuffs on plaintiff while plaintiff's knees were on the floor and her face was on the couch, according to plaintiff's deposition testimony. (Docket Entry # 60-2, p. 121). Plaintiff also testified that her hands were behind her back when she was handcuffed. (Docket Entry # 60-2, p. 129). After placing the handcuffs on plaintiff, Kramer lifted plaintiff up (Docket Entry # 60-2, p. 121) and started to escort her out the door. (Docket Entry # 60-2, p. 124). Plaintiff stated that before and during the handcuffing, she did not sustain an injury. (Docket Entry # 60-2, p. 123).

         Plaintiff also testified at her deposition that, after she was handcuffed, Kramer “drug [sic] me out . . ., ” and “was pulling me . . ..” (Docket Entry 60-2, p. 125). Plaintiff did not fall or sustain an injury when Kramer escorted her downstairs. (Docket Entry # 60-2, p. 129). Plaintiff testified that, after she came outside and while in the parking lot, Kramer took her wrists and “grinded” them together inside her handcuffs, causing her pain. (Docket Entry # 63, ¶ 34) (Docket Entry # 69, ¶ 34). Except for Kramer and the officer who shoved plaintiff, no other responding officer used any force against plaintiff. (Docket Entry # 60-2, pp. 144-45).

         Plaintiff also testified that, as she was escorted out of her apartment, roughly 15 to 20 people gathered to watch. (Docket Entry # 60-2, pp. 136-37). Except for an individual who lived in the house next door, plaintiff did not recognize any of these people. (Docket Entry # 60-2, pp. 137-39). She also did not know if anyone was a neighbor. (Docket Entry # 60-2, pp. 137-39). In addition to plaintiff's arrest, Reginald Jr. was arrested. (Docket Entry # 60-2, p. 124).

         7. After Plaintiff's Escort Out of Building

         After plaintiff's escort out of the building and while waiting for transport to the Taunton police station, Domingo arrived and inquired about why plaintiff was being arrested. (Docket Entry # 63, ¶ 36) (Docket Entry # 69, ¶ 36). Members of TPD refused to respond to Domingo's inquiries, stunned him with a Taser, and placed him under arrest. (Docket Entry # 63, ¶ 36) (Docket Entry # 69, ¶ 36). Thereafter, Kramer placed plaintiff into a cruiser and she was transported to the Taunton police station. (Docket Entry # 63, ¶ 37) (Docket Entry # 69, ¶ 37). While at the Taunton police station, plaintiff complained of wrist pain and requested medical treatment. (Docket Entry # 63, ¶ 38) (Docket Entry # 69, ¶ 38). In response, plaintiff was transported to Morton Hospital where she was diagnosed with a contusion to her wrist. (Docket Entry # 63, ¶ 39) (Docket Entry # 69, ¶ 39). Plaintiff was discharged and did not seek any further medical treatment for her wrist. (Docket Entry # 60-2, p. 156).

         8. Reginald's Arrest

         After the responding officers left the building, members of TPD went to 19 Union Street, which was approximately half a mile away from plaintiff's apartment where they arrested Reginald. (Docket Entry # 63, ¶ 48) (Docket Entry # 69, ¶ 48). Kramer stated that, “It is known that [Reginald] hangs out at 19 Union Street and is seen at the residence on many occasions.” (Docket Entry # 63, ¶ 45) (Docket Entry # 69, ¶ 45). Skwarto stated that he, along with Kramer and Schlageter, “‘proceeded to 19 Union St. due to the fact that we are aware that [Reginald] spends much of his time at this apartment with a Jay Wright.'” (Docket Entry # 63, ¶ 46) (Docket Entry # 69, ¶ 46) (Docket Entry # 63-4, p. 14). Schlageter stated that, “‘The address of 19 Union Street is the address of Jay Wright and is an address that is frequented by [Reginald].'” (Docket Entry # 63, ¶ 47) (Docket Entry # 69, ¶ 47).

         Reginald was subsequently indicted on multiple offenses arising out of the August 2, 2013 shooting of Thompson and the threatening of Burton with a firearm. (Docket Entry # 60-9). He pled guilty to these offenses. (Docket Entry # 60-6, p. 18).

         9. Arrest Warrant and Search Warrant

         The responding officers did not have a warrant to search plaintiff's apartment at the time of entry. (Docket Entry # 63, ¶ 40) (Docket Entry # 69, ¶ 40). The parties dispute whether the police had a warrant for Reginald's arrest. (Docket Entry # 69, ¶¶ 41-42). Defendants produced a print out from the Commonwealth of Massachusetts Criminal Justice Information System website. (Docket Entry # 60-5). The print out bears the title “WMS Warrant: JENKINS, REGINALD L” issued on August 1, 2013 and identifies “112 High Street, Taunton, MA 02780” as the address. (Docket Entry # 60-5). By affidavit, Skwarto, a detective in the TPD, attests that the warrant referred to in the print out, WR4934980TC, is an arrest warrant for the charged offense, i.e., assault and battery with a dangerous weapon committed on July 31, 2013. (Docket Entry # 69, ¶ 5) (Docket Entry # 60-5). It also ...


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