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Mercurio v. Town of Sherborn

United States District Court, D. Massachusetts

December 19, 2017




         This case arises from a police encounter that led to plaintiff Christine Mercurio's (“Mercurio” or “the plaintiff”) arrest. She contends that Sherborn Police Department (“SPD”) officers used excessive force and arrested her without cause and she has brought a multi-count civil rights suit against several SPD officers and the town of Sherborn (“the Town”). The defendants move for summary judgment. (Dkt. No. 57). The plaintiff opposes the motion and the matter has been fully briefed. (Dkt. No. 66). After careful consideration of the record, the parties' submissions, and the information adduced at a hearing on the motion, the motion for summary judgment is GRANTED IN PART and DENIED IN PART. The reasons for this ruling are explained below.


         A. The Arrest

         On March 15, 2012, shortly before 11:00 p.m., the plaintiff was driving with her husband, Mohammed Kimakhe (“Kimakhe”), on a portion of South Main Street in Sherborn. (Concise Statement of Undisputed Facts In Support of Defendants' Motion for Summary Judgment (“Defendants' SUF”), at ¶ 7). SPD Officers Mark Scola (“Scola”) and David Bento (“Bento”) were dispatched to that area at around the same time, based on a report from a caller that a crime had been committed or was in progress, and that the caller could hear two individuals arguing by the side of the road. (Defendants' SUF, at ¶¶ 14, 15); Plaintiff's Response to Defendants' Concise Statement of Undisputed Material Facts and Statement of Additional Undisputed Facts In Opposition to Defendants' Motion for Summary Judgment (“Plaintiff's SUF”), at ¶¶ 14, 15). The parties agree that neither officer had previously met or interacted with the plaintiff. (Defendants' SUF, at ¶ 16). The parties also agree that an encounter took place between them when the officers arrived on scene, but offer conflicting versions of events.

         i. The Defendants' Version

         According to the defendants, when Officers Scola and Bento arrived, Officer Scola saw the plaintiff standing outside of a car next to a male later identified as Kimakhe. (Id., at ¶ 17). Officer Scola could hear the plaintiff yelling as he approached. (Id., at ¶ 18). Shortly thereafter, Officers Scola and Bento saw the plaintiff strike Kimakhe in the face with her fist. (Id., at ¶ 19).

         The officers separated the couple and Officer Bento spoke with the plaintiff while Officer Scola spoke with Kimakhe. (Id., at ¶¶ 20, 22-23). According to Officer Scola, Kimakhe said that he and the plaintiff began to argue while they were driving down South Main Street. (Id., at ¶ 24). Kimakhe subsequently pulled the car over to the side of the road so the plaintiff could exit the car and call her father, Frank Mercurio, to come and pick her up. (Id.). Kimakhe admitted that the plaintiff punched him in the face but he said that he was fine and did not require any medical attention. (Id., at ¶ 23).

         The plaintiff's father arrived soon afterwards and told Officer Scola that the plaintiff had called him for a ride because she and her husband were arguing. (Id., at ¶ 26). Upon hearing that the plaintiff and Kimakhe were married, Officers Scola and Bento deemed the plaintiff's conduct to constitute domestic violence warranting an immediate arrest under Massachusetts law, and accordingly decided to place her under arrest. (Id., at ¶¶ 27-28).

         The officers informed the plaintiff that she was under arrest and instructed her to place her hands behind her back so they could handcuff her wrists. (Id., at ¶¶ 29, 32). The plaintiff refused to comply; the officers attempted to gain control of her wrists, but she continued to resist by tightening her arms, shaking, and twisting her body. (Id., ¶¶ 29, 32-33). The officers subsequently brought the plaintiff to the ground and handcuffed her in the prone position. (Id., ¶ 34). The officers then asked the plaintiff to rise so she could walk to the police cruiser. (Id., ¶ 36). The plaintiff refused to get into the cruiser and continued to resist by moving sporadically, squirming, flailing her feet, and kicking. (Id., at ¶¶ 37, 38). At some point, the plaintiff struck Officer Scola in the face with a shoe. (Id., ¶ 39).

         Officers Bento and Scola were eventually able to place the plaintiff in the cruiser and close the door. (Id., ¶ 55). Still, the plaintiff continued to be recalcitrant, and attempted to kick out the rear window of the police cruiser. (Id., ¶ 56). The officers chose not to secure the plaintiff in the back seat with a seatbelt in light of the difficulties they encountered in arresting her in the first place. (Id., ¶ 58).

         ii. The Plaintiff's Version

         The plaintiff avers that she and her husband were driving home when she asked him to pull over to the side of the road so she could get out and smoke a cigarette. (Id., at ¶ 24). Kimakhe pulled over and they both stood outside the car while the plaintiff smoked a cigarette. (Id., at ¶¶ 17, 24). The plaintiff and Kimakhe were conversing normally when Officers Bento and Scola arrived. (Id., at ¶ 18). The plaintiff denies that she punched Kimakhe in the face. (Id., at ¶ 19). Kimakhe also testified in his deposition that, contrary to Officer Scola's report, the plaintiff never struck him, and he did not have any apparent injuries. (Id., at ¶ 23). Nonetheless, Officers Scola and Bento separated the plaintiff and Kimakhe and questioned each of them separately. While the officers were doing so, Frank Mercurio arrived and in due course told Officer Scola that the plaintiff and Kimakhe were married. (Id., at ¶¶ 20, 26).

         Following this exchange with Frank Mercurio, Officers Scola and Bento accused the plaintiff of striking Kimakhe in the face and suddenly threw her to the ground without warning or an opportunity to respond to the accusation. (Id., at ¶¶ 29, 32). Prior to throwing her to the ground, neither officer tried to handcuff the plaintiff or ever informed her that she was under arrest. (Id., ¶¶ 33, 34). The plaintiff did not struggle or otherwise resist arrest prior to being taken to the ground. (Id., at ¶ 35).

         Once they brought her to the ground, Officers Bento and Scola placed their knees on the plaintiff's back in an effort to hold her down, handcuffed her, and then “dragged” her to the police cruiser, where she was “thrown” into it “like a duffle bag.” (Id., at ¶¶ 32, 36, 37). And, because the officers failed to secure the plaintiff with a seat belt, she was “thrown around the back of the police car” as the car moved. (Id., at ¶¶ 56, 58).

         According to Frank Mercurio, the plaintiff was initially “squirming around” but she never resisted arrest and she did not hit Officer Scola in the face with a shoe. (Id., at ¶¶ 39, 40, 55, 57).

         B. The Booking Process

         The parties agree that when the officers brought the plaintiff to the Sherborn police station for booking, she complained of pain in her thumb and was given an ice pack. (Plaintiff's SUF, at ¶ 59). Officer Scola, however, did not observe any physical injuries on the plaintiff. (Defendants' SUF, at ¶ 59). Officers then handcuffed the plaintiff to a “Murphy bar” and instructed her to sit in a rolling chair and answer questions through a glass window. (Defendant's SUF, at ¶¶ 62, 68; Plaintiff's SUF, at ¶¶ 62, 68).

         The defendants claim that the plaintiff was uncooperative and continued to resist and kick at the officers but the plaintiff disputes this assertion and maintains that she was initially cooperative and answered the booking questions asked of her. (Defendants' SUF, at ¶ 69; Plaintiff's SUF, at ¶¶ 69, 84). Still, both parties agree that at some point during the booking process the plaintiff began hitting the glass window in an effort to get the officers' attention. (Defendants' SUF, at ¶ 63; Plaintiff's SUF, at ¶ 63). The plaintiff also made several remarks to the effect that she was contemplating suicide and would take her own life by any means necessary. (Defendants' SUF, at ¶¶ 70, 85).[1]Based on these remarks, the defendants called for an ambulance to transport the plaintiff to the hospital for a psychiatric evaluation. (Defendants' SUF, at ¶¶ 71, 86, 88; Plaintiff's SUF, at ¶ 71).

         According to the defendants, the plaintiff became increasingly agitated once the ambulance arrived and threatened to “fight” any officer who attempted to move her onto the stretcher. (Defendants' SUF, at ¶¶ 74, 96, 98). The plaintiff disputes this contention and maintains that she sat calmly with her head down on the Murphy bar, and at no point indicated that she would resist being transported to the hospital. (Plaintiff's SUF, at ¶¶ 74, 81, 96, 98).[2]

         Regardless, the parties agree that SPD Officer Tedstone pulled the chair from under the plaintiff while she was still handcuffed to the Murphy bar, causing her to fall to the ground. (Defendants' SUF, at ¶¶ 73, 75, 102; Plaintiff's SUF, at ¶¶ 73, 102, 104). The parties also agree that once the plaintiff fell to the ground, she became increasingly combative with the officers attempting to move her onto the stretcher, by flailing her arms and legs, biting, spitting, scratching, and kicking at those around her. (Defendants' SUF, at ¶¶ 77, 78, 90; Plaintiff's SUF, at ¶¶ 77, 78, 90). The plaintiff ultimately was placed in a four point restraint on the stretcher and transported to a local hospital. (Defendants' SUF, at ¶¶ 79, 93; Plaintiff's SUF, at ¶¶ 79, 93).

         C. State Court Proceedings

         The plaintiff was subsequently charged in state court with several criminal offenses. (Defendants' SUF, at ¶ 113; Plaintiff's SUF, at ¶ 113). The criminal case was dismissed based on an opinion from the plaintiff's psychiatrist that the plaintiff was suffering from an acute psychotic episode at the time of the incident and was therefore not criminally responsible for her actions. (Defendants' SUF, at ¶¶ 108, 110; Plaintiff's SUF, at ¶¶ 108, 110).

         D. The Plaintiff's Mental Health History

         In early 2002 the plaintiff was diagnosed with major depression with psychotic features; she has attempted suicide at least four times since then. (Defendants' SUF, at ¶¶ 2, 4; Plaintiff's SUF, at ¶¶ 2, 4). The plaintiff's condition causes her to experience psychotic episodes during unpleasant or traumatic events. (Defendants' SUF, at ¶ 6; Plaintiff's SUF, at ¶ 6). During such episodes, the plaintiff hallucinates a male figure that unleashes an army of cockroaches that will bite and ultimately kill her. (Defendants' SUF, at ¶ 5; Plaintiff's SUF, at ¶ 5).

         The parties disagree as to when SPD officers first learned that the plaintiff suffers from a mental illness. The plaintiff maintains that Frank Mercurio told Officers Scola and Bento immediately prior to her arrest that the plaintiff suffers from a mental illness, and pleaded with them to allow him to transport her to a nearby hospital for an evaluation. (Plaintiff's SUF, at ¶ 41). The defendants state that they did not learn of the plaintiff's mental illness until sometime after arresting her. (Defendants' SUF, at ¶ 41).

         Regardless, the plaintiff claims that she experienced a psychotic episode when Officer Scola and Bento threw her to the ground so they could handcuff her wrists. (Defendants' SUF, at ¶ 43; Plaintiff's SUF, at ¶ 43). As a consequence, the plaintiff was “in and out of reality” for the remainder of the evening and could not remember portions of that evening. (Defendants' SUF, at ¶¶ 44, 45; Plaintiff's SUF, at ¶¶ 44, 45, 53).

         II. ...

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