United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. No.
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.).
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).
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). 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).
The Stop of Plaintiff
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).
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).
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).
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
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.).
The Arrest of Plaintiff
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).
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,
Plaintiff's screams of pain attracted the neighbors'
attention (Dkt. No. 59-3 at 65-66; Dkt. No. 60-17 at 29).
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).
Plaintiff at the Police Department
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
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
Entry into 87 Newton Street
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).
Summary Judgment Standard
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).
Federal and State Claims against Colon and Goudreau
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
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  that the challenged conduct was
committed by a person acting under color of state law and 
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.
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.
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.
Count I: Section 1983 Unreasonable Seizure
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
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)).
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.
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. 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)).
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 ...