United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO
CORRECT THE SUMMARY JUDGMENT RECORD (DOCKET ENTRY # 76);
DEFENDANTS' SUPPLEMENTAL MOTION TO CORRECT THE SUMMARY
JUDGMENT RECORD (DOCKET ENTRY # 81)
MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE.
before this court are two motions to correct the summary
judgment record 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
“defendants”). (Docket Entry ## 76, 81). Plaintiff
Rosemary Jenkins (“plaintiff”) opposes the
requested corrections. (Docket Entry # 82).
September 29, 2017, this court allowed in part and denied in
part defendants' summary judgment motion. (Docket Entry #
73). On October 27, 2017, defendants filed a notice of appeal
of the denial of qualified immunity. (Docket Entry # 77).
Schlageter, Martin, and Bolton, all police officers with the
Taunton Police Department (“TPD”), as well as
Kramer, a detective with the TPD, and Skwarto, a detective
sergeant with the TPD, (“the responding
officers”) sought qualified immunity for the 42 U.S.C.
§ 1983 (“section 1983”) and Massachusetts
Civil Rights Act (“MCRA”) claims grounded upon an
entry into plaintiff's apartment with an arrest warrant
for her son.(Docket Entry # 59, pp. 4-6). They argued
that, “Prior to entering Plaintiff's apartment,
[they] had a reasonable (although mistaken) belief
that” Reginald Jenkins, Sr. (“Reginald”),
plaintiff's son and a fleeing suspect, “lived in
apartment #3.” (Docket Entry # 59). They further
asserted that, because of their “knowledge from past
encounters that [Reginald's] mother and his minor
children lived in apartment #3, ” the responding
officers were not “plainly incompetent for believing
RJS lived there” as well. (Docket Entry # 59).
summary judgment opinion framed the qualified immunity
inquiry as “whether ‘the police “reasonably
believed” prior to entry that [the suspect] (1) resided
at the apartment and (2) would be present.'”
(Docket Entry # 73, p. 43) (quoting United States v.
Graham, 553 F.3d 6, 12 (1st Cir. 2009), and citing
United States v. Werra, 638 F.3d 326, 327 (1st Cir.
2011)). The denial of immunity turned upon an issue of fact,
namely, the reasonable belief of the responding officers
that, prior to the entry into the apartment, Reginald resided
in apartment three. (Docket Entry # 73, pp. 37-44)); see
United States v. Graham, 553 F.3d at 12. “Drawing
reasonable inferences in plaintiff's favor, ” this
court set out the facts that best comported with the summary
judgment standard. (Docket Entry # 73, p. 40) (quoting
Morelli v. Webster, 552 F.3d 12, 19 (1st Cir.
undisputed facts in the LR. 56.1 statements established that:
the building at 112 High Street had four apartments;
apartment three was the only residence on the third floor;
plaintiff resided in apartment three with her grandchildren;
and TPD police were aware that plaintiff lived at the
multi-unit building with her grandchildren because she
“had called TPD on multiple occasions for
assistance” with her grandchildren. (Docket Entry # 73,
pp. 4-6) (Docket Entry # 63, ¶¶ 2, 3, 11, 12)
(Docket Entry # 69, ¶¶ 2, 3, 11, 12). Drawing
reasonable inferences in plaintiff's favor, this court
found that “members of TPD were aware that plaintiff .
. . lived in apartment three on the third floor.”
(Docket Entry # 73, p. 6). As also explained in the opinion,
TPD records at the relevant time identified Reginald's
address as apartment four or simply as 112 High Street.
(Docket Entry # 73, pp. 26-27). TPD records did not designate
Reginald's address as apartment three at 112 High Street,
i.e., plaintiff's apartment. (Docket Entry # 73, p. 26).
Dispatch transmissions included the victim's mother's
statement that Reginald was inside “his apartment over
there.” (Docket Entry # 73, pp. 9, 44). After surveying
the clearly established law in the context of these and other
facts in the record construed in plaintiff's favor, this
court found that such law “would have given a
reasonable police officer clear notice that he lacked a
reasonable belief that Reginald resided in apartment three at
112 High Street.” (Docket Entry # 73, p. 44).
seek to change the factual record to reflect that plaintiff
actually resided in apartment four because plaintiff
misstated the apartment number at her deposition as apartment
three. (Docket Entry ## 76, 81, 85). Plaintiff
implicitly disagrees and submits that she “testified
truthfully and to the best of her memory” at her
deposition regarding apartment three.(Docket Entry # 82). To
support the request to change the summary judgment record,
defendants now provide documents that existed at the time
they sought summary judgment that show plaintiff lived in
apartment four at the relevant time, i.e., the same apartment
number reflected in various TPD records prior to the August
2013 entry into plaintiff's apartment. (Docket Entry ##
76-1 to 76-7, 81-1, 81-2). A number of these documents
further identify apartment four as located on the third
floor. (Docket Entry ## 76-1 to 76-4, 81-2). Once changed,
defendants plan to file a motion to reconsider this
court's denial of summary judgment on all claims related
to the entry into plaintiff's apartment. (Docket Entry #
76, p. 5) (Docket Entry # 81, p. 2).
summary judgment record which defendants seek to correct by
changing apartment three to apartment four includes: (1)
defendants' LR. 56.1 statement that, “On August 2,
2013, Plaintiff resided in apartment #3 of 112 High Street in
Taunton, Massachusetts”; (2) defendants' LR. 56.1
statement that, “Apartment #3 is the only residence
located on the third floor”; (3) plaintiff's LR.
56.1 statement containing these same facts; and (4)
defendants' response to plaintiff's LR. 56.1
statement admitting these facts as undisputed for purposes of
summary judgment. (Docket Entry # 60, ¶¶ 2, 6)
(Docket Entry # 63, ¶¶ 2, 3) (Docket Entry # 69,
¶¶ 2, 3). To support the agreed-upon fact that
plaintiff lived in apartment three, the LR. 56.1 statements
cited plaintiff's deposition which, in pertinent part,
reads as follows:
Q. Where did you live before that?
A. 112 High Street.
Q. Was there an apartment number?
A. Apartment 3 . . ..
Q. Can you kind of describe the -- maybe I should start with,
how many floors is 112 High Street?
A. First floor, second floor, third floor.
Q. Three ...