United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
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.
otherwise noted, the following facts are as set forth in the
record and are undisputed.
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).
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).
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.
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).
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).
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).
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
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).
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).
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).
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).
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
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.
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.
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).
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).
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).
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
removed the action to this Court and have now moved for