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Nault v. Bazarewsky

United States District Court, D. Massachusetts

February 26, 2018




         This is a civil rights action arising out of a confrontation between police officers and a grandmother in a grocery store parking lot. Plaintiff Donnakay Nault was at a Hannaford's Supermarket in Middleborough, Massachusetts, with her daughter and four grandchildren. Nault disciplined one of the children in the store by pulling on his ear. Another shopper witnessed the episode and called the police to report suspected child abuse.

         Officers Todd Bazarewsky and Richard Harvey were dispatched to the store. Bazarewsky arrived first and found Nault in the parking lot attempting to load her groceries into her car. Bazarewsky approached her and began asking questions. Nault responded by expressing doubt that he was in fact a police officer. She initially declined to provide her license and registration and asked that Bazarewsky provide the name of his supervisor. After Bazarewsky threatened to arrest Nault for refusing to provide her license and registration, she relented.

         Nault then attempted to close the driver's side of the door, allegedly hitting Bazarewsky in the shoulder. Eventually, Harvey pulled up in his marked police cruiser, and Bazarewsky went to speak with him while Nault remained inside her vehicle with the doors closed.

         Nault was not arrested that day. However, she later received a summons and a copy of a criminal complaint filed in the Wareham District Court for assault and battery on a police officer and assault and battery with a dangerous weapon. At the district attorney's request, the charges were eventually dismissed.

         Nault has now filed a complaint asserting claims for civil rights and constitutional violations and intentional infliction of emotional distress. Defendants have moved for summary judgment. For the following reasons, the motion will be granted in part and denied in part.

         I. Background

         Unless otherwise noted, the following facts are as set forth in the record and are undisputed.[1]

         A. Factual Background

         Donnakay Nault is a resident of Carver, Massachusetts. (Pl. SMF ¶ 1; Def. Resp. ¶ 1). On July 28, 2013, she was shopping with her adult daughter, Amanda, and her four grandchildren in the Hannaford's Supermarket in Middleborough, Massachusetts. (Donnakay Nault Dep. at 16). Her grandchildren were “running up and down the aisles, playing with things, grabbing things, [and] screaming their brains out.” (Id. at 20-21). Nault attempted to speak with them, but they ignored her. (Id. at 18-19). Eventually, she “pulled on” a grandson's ear “to get him to pay attention and stop running up and down the aisles.” (Id. at 47).[2]

         Another shopper, Renee Garbitt, witnessed the incident. She approached Nault after the grandson “began to scream and cry.” (Garbitt Dep. at 10-11). Garbitt told Nault, “[p]lease take your hands off that child.” (Id. at 11). Nault ignored Garbitt, who then said something along the lines of Nault being a “bad mother.” (Donnakay Nault Dep. at 21).[3]

         Garbitt is a registered nurse and a licensed mental-health counselor. (Garbitt Dep. at 7). Because of her position, she is a “mandated reporter, ” and is required to report suspected child abuse or neglect. (Id. at 17). Garbitt asked a Hannaford's employee to use the store phone because her cell phone was not working. (Id. at 12). The store manager called 911 and handed the phone to Garbitt, who reported the incident as suspected child abuse. (Id.).

         Middleborough police officers Todd Bazarewsky and Richard Harvey were dispatched to the store for a well-being check. (Def. Ex. 4 at 1; Def. Ex. 5 at 4). Bazarewsky arrived first and entered the supermarket to speak with Garbitt, who gave a physical description of Nault. (Def. Ex. 4 at 1).

         Meanwhile, Nault had finished shopping. (Donnakay Nault Dep. at 23). She began loading the groceries into the back of her car. (Id. at 27). She was “half in the car and half out of the car” when Bazarewsky pulled up in a cruiser. (Id. at 29). The parties dispute whether Bazarewsky's cruiser was marked. (Id. at 30; Def. Ex. 4 at 1). Nault also contends that Bazarewsky “was in a uniform, but not one that I recognized as [belonging to] the Middleborough Police Department.” (Donnakay Nault Dep. at 28).

         Bazarewsky approached Nault on the driver's side of her car. He told her that there had been a complaint about her conduct with a child in the supermarket. (Def. Ex. 4 at 1). He first asked whether she had accompanied anyone else to the supermarket that day. (Donnakay Nault Dep. at 30). Nault replied that she had shopped with her grandchildren and daughter, but that they had left earlier. (Id. at 31).

         Bazarewsky then asked whether there had been an incident in the supermarket. (Id.). Nault responded that she “wished to remain silent” and asked who Bazarewsky's supervisor was. (Id. at 32). Nault contends that she “was not sure that he was a police officer” at that point; she recited the names of persons she believed to be Middleborough police officers, such as Lieutenant Dave Mackiewicz and Police Chief Bruce Gates, to test whether Bazarewsky was in fact an officer. (Id. at 32-33, 38). Bazarewsky stated that his supervisor's name was not relevant and asked Nault to provide her driver's license and vehicle registration. (Def. Ex. 4 at 1). Nault refused to produce either document and reiterated her request that Bazarewsky provide his supervisor's name. (Id.). Bazarewsky replied that she would be arrested unless she provided her license and registration, at which point she relented. (Id.; Donnakay Nault Dep. at 35). Bazarewsky then asked the name of her daughter, which she declined to provide. (Def. Ex. 4 at 1).

         Nault then attempted to close the driver's side door of her car. (Id.; Donnakay Nault Dep. at 39). The parties dispute whether the car door struck Bazarewsky in the left shoulder. Defendants contend that Bazarewsky advised Nault that she could be arrested for assault for intentionally striking him with the door. (Def. Ex. 4 at 1).

         Officer Richard Harvey then pulled up in a marked police cruiser behind Bazarewsky's car. (Donnakay Nault Dep. at 41). Bazarewsky walked away from Nault's car to speak with Harvey while Nault locked herself in her car. (Id.). The two officers later returned to Nault's car, and Harvey knocked on her window and asked her to roll it down so he could speak with her. (Id. at 42). Nault declined and stated that she “could hear him just fine as things were.” (Id.). She then asked for the names of the officers and their supervisor. (Id. at 43). Harvey identified himself and Bazarewsky and stated that the officer in charge that day was Lieutenant Robert Ferreira, who was not on the scene. (Id. at 43-44).

         Harvey stated that he wanted to speak with Nault because the police had received a phone call concerning her behavior inside the supermarket. (Id. at 46). He then asked whether she was hiding her grandchildren in the vehicle and if she had physically touched them. (Id.). Nault replied that she was currently alone but that she had pulled on one of her grandson's ears earlier to stop him from misbehaving. (Id. at 46-47). Harvey then took Nault's license and registration, returned to his marked cruiser, and ran the documents through his computer. (Id. at 48-49). After returning, Harvey told Nault that he was going to contact the Department of Children and Families (“DCF”). (Id. at 50). The parties dispute whether Harvey advised Nault that she would receive a summons. (Id.; Def. Ex. 5 at 5).

         Nault was neither arrested nor taken into custody on that day. (Compl. ¶ 27; Donnakay Nault Dep. at 50). Immediately afterward, she returned home and recounted the events to her daughter. (Donnakay Nault Dep. at 51-53).

         The following day, on July 29, 2013, Amanda Nault went to the Middleborough police station and provided the names and dates of birth for her four children. (Def. Ex. 5 at 8). On July 30, both Bazarewsky and Harvey drafted reports detailing the incident at the supermarket and parking lot. (Id. at 5-7).

         On August 7, 2013, the Wareham District Court issued a summons and criminal complaint charging Nault with assault and battery on a police officer and assault and battery with a dangerous weapon. (Def. Ex. 7). At the time, Nault was employed as a nurse by Kindred Nursing Home in Wareham and by The Arbors Assisted Living in Stoughton. (Donnakay Nault Dep. at 63).

         Nault was arraigned at the district court on August 27, 2013. (Def. Ex. 7). While waiting for her court appearance, she spent six hours in a holding cell; at some point during her detention, she was shackled. (Donnakay Nault Dep. at 92). Because she was in court that day, she was unable to work at Kindred Nursing Home and was fired the following day. (Id. at 64).

         The parties dispute the circumstances surrounding Nault's firing. Defendants contend that Nault was fired because she failed to alert her employer that she would be in court on August 27. (Def. SMF ¶ 67). Nault contends that she was unable to call her employer because she was in custody. (Donnakay Nault Dep. at 64). Nault further alleges that she has continued to suffer adverse employment consequences because of the criminal charges. (Id. at 74).

         Nault retained defense counsel, and the charges remained pending against her for approximately a year. Eventually, the charges were dismissed at the request of the prosecution. (Id. at 59). Before charges were dismissed, Nault made two or three additional court appearances. (Id.). In addition, Nault contends that she was “depressed” and was physically ill after learning of the criminal charges against her. (Id. at 94-95).

         On January 27, 2016, Nault's counsel sent a presentment letter to the chair of the Board of Selectmen of Middleborough. (Def. Ex. 6). The letter demanded $100, 000 in damages to compensate Nault for alleged violations of her constitutional and civil rights and various torts. (Id.). The town's insurer, the Massachusetts Interlocal Insurance Association (“MIIA”), denied Nault's claim on behalf of the town on May 19, 2016. (Compl. ¶ 45).

         B. Procedural Background

         Nault filed suit on July 25, 2016, in the Plymouth County Superior Court. Her complaint alleges six counts: Counts 1 and 2 appear to bring claims under 42 U.S.C. § 1983 for constitutional violations by the individual defendants; Count 4 is a claim under section 1983 for conspiracy by the individual defendants; Count 5 is a claim under section 1983 against the town for failure to train and supervise its police force; Count 6 is a claim for intentional infliction of emotional distress by the individual defendants; and Count 7 is in substance a claim for vicarious liability against the town for the intentional torts of its employees.[4]

         Defendants removed the action to this Court and have now moved for summary judgment.

         II. L ...

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