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Hernandez v. Colon

United States District Court, D. Massachusetts

May 25, 2018

MARIA HERNANDEZ, Plaintiff
v.
JOSUE COLON, ROGER GOUDREAU, EMIL MORALES, & CITY OF HOLYOKE, Defendants

          MEMORANDUM OF DECISION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. No. 47)

          KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         This suit asserts claims under the civil rights statute, 42 U.S.C. § 1983, and Massachusetts common law against three Holyoke police officers in their individual capacities and the City of Holyoke ("City"). Plaintiff Maria Hernandez's ("Plaintiff") allegations arose from the events surrounding a utility shut-off at her residence. The first amended complaint presents federal claims against Officer Josue Colon ("Colon") and Officer Roger Goudreau ("Goudreau") for unreasonable seizure (Count I), unlawful arrest (Count II), the excessive use of force (Count III), and the failure to intervene (Count IV). Plaintiff alleges that Officer Emil Morales ("Morales") unlawfully entered her residence (Count X). Plaintiff further alleges that the City failed to discipline and train its police officers to conduct utility shut-offs (Count V). Plaintiff's pendant state law claims against Colon and Goudreau allege assault and battery (Count VI), false arrest and imprisonment (Count VII), malicious prosecution (Count VIII), and abuse of process (Count IX).

         Defendants have moved for summary judgment on all counts of the complaint (Dkt. No. 47). To the extent some counts survive their motion, Defendants have also requested bifurcation of the sole claim against the City, Count V, from the counts against the individual officers. Plaintiff has opposed Defendants' motion for summary judgment, and Defendants have replied to Plaintiff's opposition (Dkt. Nos. 58, 62). After the court heard the parties' arguments on January 24, 2018, they submitted supplemental briefs addressing the Supreme Court's recent decision in Dist. of Columbia v. Wesby, 138 S.Ct. 577 (2018) (Dkt. Nos. 66, 68). The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. For the reasons detailed below, the Defendants' motion for summary judgment is DENIED as to Counts I, II, III, IV, VI, VII, VIII, IX, and X and ALLOWED as to Count V. The Defendants' motion to bifurcate is moot in view of the court's ruling regarding Count V, Plaintiff's Monell claim.

         II. Factual Background[1]

         On May 27, 2014, Plaintiff owned the townhouse at 87 Newton Street in Holyoke and resided there with her three children and a dog (Dkt. No. 59-3 at 7, 8, 39). The home was approximately in the middle of the block of "connected" townhouses that stretched between Cabot and Essex Streets (Dkt. No. 59-7 at 8). An alley behind the townhouses ran between these streets (id.).[2]

         Plaintiff's payments to Holyoke Gas and Electric ("HG&E") were past due on May 27, 2014 (Dkt. No. 59-3 at 27; Dkt. No. 60-3 at 1-13). In all five months from January to May 2014, she had received notices that her electricity and gas services were "subject to discontinuance" (Dkt. Nos. 60-3 at 1-13, 60-4). A May 21, 2014 letter from HG&E informed Plaintiff that the gas and electric services would be terminated on May 27, 2014, that a HG&E employee would enter the building, and that a police officer would be present (Dkt. No. 60-5).

         At 1:20 P.M. on May 27, 2014, Robert McNulty ("McNulty"), a junior meter technician with HG&E, telephoned the Holyoke Police Department requesting an officer to "stand by" at 87 Newton Street with him and a locksmith while he terminated the utility services (Dkt. No. 60-6 at 5; Dkt. No. 63, Ex. 1 at 13.20.58).[3] McNulty and the locksmith were at the front door when Morales responded to 87 Newton Street at 1:57 P.M. (Dkt. No. 59-4 at 10; Dkt. No. 63, Ex. 1 at 13.57.57). McNulty and Morales knocked, but no one responded (Dkt. Nos. 59-4 at 11; 60-6 at 14-15). The locksmith's attempts to open the door were unsuccessful (Dkt. No. 60-6 at 14). At 2:15 P.M., Morales contacted the police department's dispatcher and requested a history and a telephone number for 87 Newton Street (Dkt. No. 63, Ex. 1 at 14.15.25). The dispatcher responded about two minutes later and reported that calls for 87 Newton Street in the "past couple years" were "mostly medicals" and "attempts to serve paperwork" (Dkt. No. 63, Ex. 1 at 14.17.05). Morales reported that he heard a dog inside and someone stomping on the ground (id.). Morales informed the dispatcher, "Somebody's inside, they just refuse to open" (id.). Morales was familiar with the floor plans of the townhouses on Newton Street (Dkt. No. 48-7 ¶ 5). It sounded to him as if someone came down the stairs and moved away from the front door (id. ¶ 7).

         A. The Stop of Plaintiff

         At 2:18 P.M., Morales requested that an officer respond to the rear of 87 Newton Street to see if anyone was in the alley (Dkt. No. 63, Ex. 1 at 14.18.25). Colon, who was on patrol, arrived in the alley behind the townhouses on Newton Street about one minute after Morales' call (Dkt. No. 59-7 at 5-6, 8; Dkt. No. 63, Ex. 1 at 14.19.33).[4]

         Plaintiff was not at her residence at approximately 2:00 P.M. (Dkt. No. 59-3 at 29). Her mother was there and her friends were on the second floor with their three children (id. at 32, 33). When Plaintiff returned from running errands, her mother reported that HG&E personnel were across the street (id. at 35, 36, 38, 39). Plaintiff then went to her first floor bedroom, got a receipt for the bail that she had posted for her friend, and left her home through the back door intending to collect the bail money and use it to pay her utility bill (id. at 38-39, 43).

         Plaintiff saw Colon before she reached the gate that separated her backyard from the alley (id. at 44). Plaintiff did not dispute the officer's observation that she left a townhouse (Dkt. No. 59-3 at 45-46; Dkt. No. 59-8 at 3). Colon did not know for certain that Plaintiff was leaving from 87 Newton Street as opposed to one of the other townhouses (Dkt. No. 59-7 at 11). When Colon asked Plaintiff her name, she responded, "Milagro, " her middle name by which she was known (Dkt. No. 59-3 at 48; Dkt. No. 59-8 at 3). Colon accused her of trespassing (Dkt. No. 59-8 at 3).

         Plaintiff then unlocked the gate, entered the alley, closed the gate behind her, locked it, and waited (Dkt. No. 59-3 at 46, 48; Dkt. No. 59-8 at 3). When Colon did not speak to her, she walked away (Dkt. No. 59-3 at 46, 48). At 2:20 P.M., Colon reported over the radio that a female just came out and told him that she did not live there (Dkt. No. 63, Ex. 1 at 14.20.41). Morales directed Colon to "hold onto her" (id.).

         Plaintiff paused when Colon approached her (Dkt. No. 59-3 at 48-49). Colon did not say anything, but reached toward her (Dkt. No. 59-3 at 49, 50; Dkt. No. 59-8 at 3). Plaintiff, believing that Colon was going to touch her, yelled, "Don't touch me" (Dkt. No. 59-3 at 49; Dkt. No. 59-8 at 3). About three minutes after Morales directed Colon to detain Plaintiff, Morales radioed Goudreau ("Rog[er]") and instructed him to ask Plaintiff "who else was inside" (Dkt. No. 63, Ex. 1 at 14.23.47). Morales "believe[d] there[] [was] somebody else inside [who] locked it when she walked out" (id.).

         B. The Arrest of Plaintiff

         Goudreau responded to the alleyway behind the townhouses on Newton Street at about 2:26 P.M. coming from the direction opposite from Colon (Dkt. No. 59-3 at 55; Dkt. No. 60-16; Dkt. No. 63, Ex. 1 at 14.26.33). Consequently, Plaintiff was between the two cruisers (Dkt. No. 59-3 at 55).

         Goudreau exited his cruiser and approached Plaintiff telling Colon, "I'll take care of it. I got it" (id. at 56). Goudreau and Colon were approximately the same size: 5' 7" tall and about 198 pounds (Dkt. No. 59-11 at 1; Dkt. No. 60-18 at 1). Plaintiff was 4' 11" and weighed approximately 100 pounds (Dkt. No. 60-17 at 16). Goudreau pushed Plaintiff's chest with both hands as he informed her that he intended to tase her (Dkt. No. 59-3 at 56-58). Goudreau then used one of his legs to sweep Plaintiff's legs out from under her (id. at 59). She fell to the ground, face down, and "momentarily" lost consciousness (Dkt. No. 59-3 at 59; Dkt. No. 60-17 at 29). Goudreau, who was on top of Plaintiff when she regained consciousness, withdrew his Taser from its holster, removed the cartridge, and applied the drive stun mode to the back of her right arm (Dkt. No. 48-9 ¶ 12; Dkt. No. 59-3 at 64; Dkt. No. 60-17 at 26, 29).[5] Plaintiff's screams of pain attracted the neighbors' attention (Dkt. No. 59-3 at 65-66; Dkt. No. 60-17 at 29).

         Plaintiff remained face-down on the ground (Dkt. No. 60-17 at 29). She denied struggling with the officers and refusing their commands to remove her left arm from underneath her body (Dkt. No. 59-3 at 64-65, 74, 75; Dkt. No. 60-17 at 30). Instead, she alleged that she was lying still when Goudreau applied his Taser's drive stun mode again, this time to her lower back on the right side (Dkt. No. 59-3 at 64, 65; Dkt. No. 60-17 at 31). Plaintiff then stood with Goudreau's assistance and permitted him to handcuff her (Dkt. No. 48-9 ¶ 18; Dkt. No. 59-3 at 66, 67). One of her wrists slipped out of a handcuff that was too loose (Dkt. No. 59-3 at 69, 70, 71-72). Goudreau reapplied the handcuff and transported her to the police department at approximately 2:27 P.M. (Dkt. No. 59-3 at 71-72; Dkt. No. 63, Ex. 1 at 14.27.28). During the transport, Plaintiff told Goudreau that she was going to contact an attorney (Dkt. No. 59-3 at 72). Neither Goudreau nor Colon sustained injuries during their encounter with Plaintiff and they did not charge her with committing an assault and battery on a police officer (Dkt. No. 60-17 at 20, 24).

         C. Plaintiff at the Police Department

         At the police department, Plaintiff refused to provide her identifying information to the booking officer and swore at an officer (Dkt. No. 48-5 at 6; Dkt. No. 59-3 at 73-74; Dkt. No. 63, Ex. 1 at 14.43.47). She was charged with disorderly conduct and resisting arrest (Dkt. No. 48-5 at 6).[6] Although Plaintiff had a bruise on her arm, she did not complain to the police about any injuries or request medical treatment (Dkt. No. 48-5 at 6; Dkt. No. 59-3 at 76). Plaintiff claims that since she was tased, she has been unable to lift heavy items, she stutters, and she experiences tremors when she gets "nervous" (Dkt. No. 59-3 at 19-23).

         D. Entry into 87 Newton Street

         Morales, McNulty of HG&E, and Plaintiff's mother were present at 87 Newton Street after Plaintiff was transported to the police department (Dkt. No. 60-6 at 22; Dkt. No. 63 Ex.1 at 14.28.04). Plaintiff's mother told Morales that that Plaintiff lived at the townhouse and had the keys to prove it (Dkt. No. 63, Ex. 1 at 14.28.04). Morales relayed the following over the radio: "Mom's here and mom says she [Plaintiff] has the keys on her so as soon as you can get the keys over here, we can get in here" (id.). After Plaintiff's keys were obtained from the booking area, Colon delivered them to 87 Newton Street and Morales and McNulty "gained entry by using" them (Dkt. No. 48-5 at 6; Dkt. No. 59-6; Dkt. No. 59-11 at 6; Dkt. No. 63, Ex. 1 at 14.30.27 & 14.43.47). Police officers encountered two adults and three children who were hiding upstairs (Dkt. No. 48-5 at 6). McNulty terminated Plaintiff's gas and electricity service and officers left 87 Newton Street at approximately 2:45 P.M. (Dkt. No. 59-11 at 6; Dkt. No. 60-6 at 22; Dkt. No. 63, Ex. 1 at 14.45.11).

         III. Analysis

         A. Summary Judgment Standard

         "Summary judgment is appropriate when there is 'no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Washington v. Amand, Civil Action No. 11-10771-PBS, 2018 WL 1718629, at *2 (D. Mass. Apr. 9, 2018) (quoting Fed.R.Civ.P. 56(a)). "To succeed on a motion for summary judgment, the moving party must demonstrate that there is an 'absence of evidence to support the nonmoving party's case.'" Id. (quoting Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir. 2000)). See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "The burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue of material fact for trial." Washington, 2018 WL 1718629, at *2 (citing Quinones v. Buick, 436 F.3d 284, 289 (1st Cir. 2006)). A genuine dispute exists where the evidence is "sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). A material fact is "one that has the potential of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)). "In evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving party." Cabot v. Lewis, 241 F.Supp.3d 239, 247-48 (D. Mass. 2017).

         B. Federal and State Claims against Colon and Goudreau

         Plaintiff's federal and state claims against Colon and Goudreau arise from: (1) the initial stop; (2) the arrest; (3) the use of excessive force during the arrest; and (4) the failure to intervene.

         1. Legal Standards

         a. Section 1983 Plaintiff's federal claims are brought under the civil rights statute, 42 U.S.C. § 1983. "Section 1983 'is not itself a source of substantive rights, ' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). "To state a claim under Section 1983, a plaintiff must show [1] that the challenged conduct was committed by a person acting under color of state law and [2] that the conduct worked a deprivation of rights, privileges, or immunities secured by the Constitution or federal law." Diaz v. Devlin, 229 F.Supp.3d 101, 109 (D. Mass. 2017) (citing 42 U.S.C. § 1983; Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997)). Plaintiff avers that the officers violated her rights conferred by the Fourth Amendment, which guarantees, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The officers do not dispute that they were acting under color of state law on May 27, 2014. However, they argue that they are entitled to summary judgment either because they acted lawfully or, if they did not, qualified immunity bars their liability. For the reasons that follow, there are material facts in dispute which preclude summary judgment for the officers.

         b. Qualified Immunity

         "The principle of qualified immunity shields a police officer from liability for civil damages when his conduct does not violate clearly-established statutory or constitutional rights of which a reasonable person would have known." Nuon v. City of Lowell, 768 F.Supp.2d 323, 333 (D. Mass. 2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009).

A two-part framework governs whether a defendant is entitled to qualified immunity. First, [the court] inquire[s] whether the facts, taken most favorably to the party opposing summary judgment, make out a constitutional violation. Second, [the court] inquire[s] whether the violated right was clearly established at the time that the offending conduct occurred. The second, "clearly established, " step itself encompasses two questions: whether the contours of the right, in general, were sufficiently clear, and whether, under the specific facts of the case, a reasonable defendant would have understood that he was violating the right.

Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014) (citations omitted). See Wesby, 138 S.Ct. at 589-90; Tolan, 134 S.Ct. at 1865-66.

         The First Circuit has recognized the challenges of applying the qualified immunity standard at the summary judgment stage. See Washington, 2018 WL 1718629, at *3.

The difficulty arises because the summary judgment standard requires absolute deference to the nonmovant's factual assertions (as long as those assertions are put forward on personal knowledge or otherwise documented by materials of evidentiary quality), whereas qualified immunity, when raised on summary judgment, demands deference to the reasonable, if mistaken, actions of the movant.

Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009) (internal citations omitted). "To ease the difficulty, the First Circuit instructs lower courts to 'first identify[] the version of events that best comports with the summary judgment standard and then ask[] whether, given that set of facts, a reasonable officer should have known that his actions were unlawful.'" Washington, 2018 WL 1718629, at *3 (alteration in original) (quoting Morelli, 552 F.3d at 19). "[C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment." Tolan, 134 S.Ct. at 1866.

         2. Count I: Section 1983 Unreasonable Seizure

         In Count I, Plaintiff alleges that Colon and Goudreau violated her Fourth Amendment right to be free from an unreasonable seizure. See Peña-Borrero v. Estremeda, 365 F.3d 7, 12-13 (1st Cir. 2004) ("The Fourth Amendment guarantees individuals 'the right "to be secure in their persons . . . against unreasonable . . . seizures" of the person.'") (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)). It is undisputed that Plaintiff was seized in the constitutional sense in the alley behind 87 Newton Street because "a reasonable person would not [have felt] free 'to disregard the police and go about [her] business.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). The circumstances leading up to the stop present a genuine dispute of material facts such that Plaintiff is entitled to press this claim at trial (Dkt. No. 48 at 9-10; Dkt. No. 58 at 4-6).

         A seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . ." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). "[A]n officer may make a brief investigatory stop of an individual if the officer has reasonable suspicion 'that criminal activity may be afoot.'" Foley v. Kiely, 602 F.3d 28, 31 (1st Cir. 2010) (quoting United States v. Am, 564 F.3d 25, 29 (1st Cir. 2009)). Courts "follow a two-pronged inquiry to evaluate 'whether the officer's action was justified at its inception, and whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place.'" Id. (quoting Am, 564 F.3d at 29 (citations omitted)).

         To meet the first prong's requirement, courts evaluate whether the officers can point to "a particularized and objective basis for suspecting the person stopped of criminal activity." United States v. Wright, 582 F.3d 199, 205 (1st Cir. 2009) (citations and quotations omitted). "Th[e] particularity requirement means, in effect, that such a finding must be 'grounded in specific and articulable facts.'" United States v. Espinoza, 490 F.3d 41, 47 (1st Cir. 2007) (quoting United States v. Hensley, 469 U.S. 221, 229 (1985)). "The 'objective' component requires courts to 'focus not on what the officer himself believed but, rather, on what a reasonable officer in his position would have thought.'" Wright, 582 F.3d at 205 (quoting Espinoza, 490 F.3d at 47). "The second prong of the inquiry requires [the court] to determine whether the [officers'] actions in connection with the stop were reasonable in light of the totality of the circumstances confronting them at the time of the stop." Foley, 602 F.3d at 32-33 (citing United States v. McCarthy, 77 F.3d 522, 530 (1st Cir. 1996)). Here, the inquiry focuses on the first prong.

         Defendants allege that a reasonable officer in Colon's position would have believed that Plaintiff was trespassing or had committed a breaking and entering based on the lack of an answer to the knocks on the locked front door, the noises Morales heard inside 87 Newton Street, Plaintiff's statement that she did not reside there after she exited from that address, and her attempt to avoid Colon.[7] See Wesby, 138 S.Ct. at 587 ("'[U]nprovoked flight upon noticing the police . . . is certainly suggestive' of wrongdoing and can be treated as 'suspicious behavior' that factors into the totality of the circumstances.") (quoting Illinois v. Wardlow, 528 U.S. 119, 124- 25 (2000)).

         For her part, Plaintiff contends that Colon lacked reasonable suspicion to detain her. Plaintiff avers that she was not at home when the officers knocked on the door (Dkt. No. 59-3 at 29). After she left her home through the back door, Colon observed her using her key to unlock then lock the gate that separated the backyard of 87 Newton Street from the alley, which indicated that she owned the premises or had a right to be there (Dkt. No. 59-3 at 46, 48; Dkt. No. 59-8 at 3). Before Colon seized her, he had only asked for her name and she had responded, "Milagro" (Dkt. No. 59-3 at 48; Dkt. No. 59-8 at 3). Morales did not indicate that he believed a breaking and entering was in progress when he called for backup and Colon admitted that he had no reason to believe Plaintiff committed a crime when she left the townhouse. Based on these facts, a jury could conclude ...


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