United States District Court, D. Massachusetts
ADRIANA G. KAM-O'DONOGHUE, as Personal Representative of the Estate of ALEXANDER CASTRO, Plaintiff,
JOHN TULLY and KEITH SALACH, Individually and in their Capacities as Lawrence Police Officers, and the CITY OF LAWRENCE, MASSACHUSETTS Defendants.
MEMORANDUM AND ORDER
early morning hours of June 15, 2013, officers John Tully and
Keith Salach of the Lawrence, Massachusetts Police Department
("LPD") attempted to apprehend Alexander Castro for
a noise violation and reckless driving. In the process,
Castro's car and Tully's police cruiser collided, and
Tully shot and injured Castro. Castro sued Tully and Salach,
as well as the City of Lawrence ("the City") for
violating his rights under federal and state law.
court referred this case to the Magistrate Judge for all
pretrial purposes. Defendants moved for summary judgment.
Castro cross-moved for summary judgment against the City,
which the City moved to strike as untimely. In a Report and
Recommendation, the Magistrate Judge recommends that the
court allow in part and deny in part defendants' motions.
In particular, characterizing it as a "close
question," she finds triable facts as to whether Tully
and Salach unreasonably seized Castro and engaged in an
unlawful conspiracy to deprive Castro of his constitutional
rights. She also finds that Tully and Salach waived their
arguments for summary judgment on Castro's federal equal
protection claims. Tully and Salach object to these findings.
Castro did not object or respond to Tully and Salach's
court has reviewed de novo those parts of the Report and
Recommendation to which Tully and Salach object. The court
finds no triable issues of fact as to whether Tully and
Salach unreasonably seized Castro or engaged in an unlawful
conspiracy. The court also finds that Tully and Salach did
not waive their arguments for summary judgment with respect
to Castro's federal equal protection claims, and that
there is no triable issue of fact as to whether Tully and
Salach acted with discriminatory animus. Furthermore,
although the city did not move for summary judgment on
Castro's claim for negligent infliction of emotional
distress ("NIED") and, therefore, the Magistrate
Judge did not address it, the court does not discern any
triable issues of fact as to whether Tully acted negligently.
However, the court is providing Castro an opportunity to
attempt to identify evidence raising an issue of fact as to
his NIED claim.
other respects, the court finds that the Report and
Recommendation is thorough, thoughtful, and persuasive.
Accordingly, the court is adopting in part and modifying in
part the Report and Recommendation. In summary, the court is
allowing the City's Motion for Partial-Summary Judgment,
and Tully's and Salach's motions for summary
judgment. It is also allowing the City's Motion to Strike
and, therefore, denying Castro's Cross-Motion for Summary
Review of a Magistrate's Disposition
Rule of Civil Procedure 72(b)(3) requires the court to review
"de novo any part of the magistrate judge's
disposition that has been properly objected to."
"Conclusory objections that do not direct the reviewing
court to the issues in controversy" are not proper under
Rule 72 (b) . Velez-Padro v. Thermo King De P.R.,
Inc., 465 F.3d 31, 32 (1st Cir. 2006). Moreover, a party
is "not entitled to a de novo review of an argument
never raised" before the magistrate judge. Borden v.
Sec'y of Health & Human Servs., 836 F.2d 4, 6
(1st Cir. 1987). "Parties must take before the
magistrate, 'not only their "best shot" but all
of their shots.'" Id. (quoting Singh v.
Superintending Sch. Comm. of City of Portland, 593
F.Supp. 1315, 1318 (D. Me. 1984)).
no objections have been filed to a report and recommendation,
the court is not required to engage in de novo review, or
even in "some lesser standard" of review.
Thomas v. Am, 474 U.S. 140, 149 (1985); see also 28
U.S.C. §636(b) (1) (C); Fed.R.Civ.P. 72(b)(3). However,
the court is encouraged "to afford some level of review
to dispositive legal issues raised by the report."
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
Rule of Civil Procedure 56(a) provides that the court
"shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." A
factual dispute, therefore, precludes summary judgment if it
is "material" and "genuine." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
is "material" if, in light of the relevant
substantive law, "it has the potential of determining
the outcome of the litigation." Maymi v. P.R. Ports
Auth., 515 F.3d 20, 25 (1st Cir. 2008). "Only
disputes over facts that might affect the outcome of the suit
under the governing law properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
determine if a factual dispute is "genuine," the
court must assess whether "'the evidence is such
that a reasonable jury-could return a verdict for the
nonmoving party.1" Chadwick v. Well Point,
Inc., 561 F.3d 38, 43 (1st Cir. 2009) (quoting
Anderson, 477 U.S. at 248) . In making this
determination, the court must "constru[e] the record in
the light most favorable to the non-moving party."
Douglas v. York Cty., 433 F.3d 143, 149 (1st Cir.
2005). The record should not, however, be scrutinized
piecemeal; rather, it must be "taken as a whole."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Kelly v. Cort
Furniture, 717 F.Supp.2d 120, 122 (D. Mass. 2010) . Evidence
submitted in inadmissible form may be considered only if it
could be presented in a form that would be admissible at
trial. See Fed.R.Civ.P. 56(c)(2); Gorski v. N.H.
Dep't Corr., 290 F.3d 466, 475-76 (1st Cir. 2002) .
party moving for summary judgment "bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). However, the moving
party's burden "may be discharged by showing . . .
that there is an absence of evidence to support the nonmoving
party's case." Id. at 325 (internal
quotation marks omitted). Therefore, summary judgment is
mandated "after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial." Id. at 322.
court adopts the relevant facts recited in the Report and
Recommendation, as supplemented by the record. See R. &
R. at 4-34 (Dkt. No. 83). The following facts are undisputed
unless specified. A. June 15, 2013 On June 15, 2013, LPD
officers Tully and Salach were working a shift from 1:00 a.m.
to 9:00 a.m. They were in uniform and drove separate police
cruisers. At approximately 5:24 a.m., the officers responded
to a noise complaint about a loud party on Bennington Street
in Lawrence, Massachusetts. After resolving the noise
complaint, they departed Bennington Street and were driving
on Stearns Avenue.
on Stearns Avenue, the officers heard the sound of a revving
car engine from Lawrence Street. Salach suspected that the
sound constituted a noise violation. As the officers turned
onto Lawrence Street, Salach observed a green Honda Civic
revving its engine and driving down Lawrence street towards
the officers. The driver of the car was Castro, a Hispanic
officers activated their blue lights. Castro stopped in front
of Tully's and Salach's cruisers and then reversed at
a high rate of speed while weaving back and forth down
Lawrence Street. Tully and Salach followed Castro down
Lawrence Street, across two intersecting streets.
point, Tully1s and Castro's vehicles collided. Castro
asserts that Tully "rammed" his car, while Tully
maintains that he attempted to push Castro back into his lane
after Castro contacted Tully's cruiser. An accident
reconstructionist concluded that "it is not possible to
determine whether the Crown Victoria operated by Officer
Tully made first contact with the 1995 Honda EX operated by
 Castro or whether the Honda swerved and made first contact
with the Crown Victoria." Crashteams S. New Eng. Report
at 12 (Dkt. No. 69-16). For the purposes of summary judgment,
therefore, the court assumes that Tully rammed Castro's
Tully and Castro collided, their vehicles jumped a curb onto
a traffic island on Bennington Street. Salach drove up next
to Castro's vehicle, while Tully exited his cruiser and
moved towards the back of Castro's car. Tully also drew
his service weapon, placing his trigger finger alongside the
parties dispute what happened next. Castro says that after
coming to a stop on the traffic island, he drove
forward. See June 15, 2015 Trial Tr. at
82:15-17 (Dkt. No. 69-6). Tully and Salach maintain that
Castro reversed towards Tully. See Tully Dep. at
61:13-14 (Dkt. No. 69-3); Salach Dep. at 43:7-8 (Dkt. No.
69-17). For the purposes of summary judgment, therefore, the
court assumes that Castro drove forward.
then intentionally fired his weapon. The bullet from Tully's
gun traveled through Castro's car and into Castro's
back. Castro proceeded to drive away. Tully and Salach
pursued Castro, but eventually lost sight of him. They then
returned to the scene of the collision on the traffic island.
They reported the accident, and Tully picked up a piece of
Castro's car to preserve as evidence. Neither officer
took photos of the scene.
several policies relevant to this case. The LPD Manual of
Procedure states that "it shall be the duty of every
member of the Department to thoroughly familiarize himself
with the provisions of the Rules and Regulations of the
Department within 30 days after issuance of a copy of the
rules." Dkt. No. 69-7 at 66.
are authorized to use deadly force, which includes
discharging a firearm, only "as a means of last resort
to protect themselves and others from the immediate threat of
death or serious physical injury." Id. at 12.
Discharging a firearm at a "moving automobile is
prohibited, unless there is imminent danger of death or
serious injury to the officer, and there are no means of
escape." Dkt. No. 69-8 at 5. Whenever an officer
discharges a firearm, he must submit a report of the
circumstances "as soon as possible after the
incident." Id. at 7.
also maintains a policy on vehicular pursuits. A
"pursuit" is "the active attempt by a police
officer in an authorized emergency vehicle to apprehend the
occupants of a moving motor vehicle whom [sic] are in the
process of attempting to evade capture by traveling at speeds
greater than the speed limit." Dkt. No. 69-7 at 28. An
officer may only engage in a pursuit to apprehend persons
wanted for felonious acts who have threatened or threaten the
safety of others. The policy prohibits "the ramming of a
suspect vehicle with a police cruiser." Id. at
32. Finally, if an officer engages in a pursuit, he must
submit a report of the circumstances.
September 21, 2016, the court referred this case to the
Magistrate Judge for all pretrial purposes. See Dkt.
No. 17. Shortly thereafter, Castro filed the Second Amended
Complaint. See Dkt. No. 29. In ten counts he alleges
that Tully, Salach, and the City violated his rights under
federal and state law.
Magistrate Judge set a deadline of October 20, 2017 for the
parties to file dispositive motions. See Dkt. No.
57. Tully and Salach timely moved for summary judgment,
see Dkt. Nos. 59, 61, and the City timely moved for
partial summary judgment on Counts Seven and Ten,
see Dkt. No. 63. On November 13, 2017, Castro
cross-moved for summary judgment against the City for the
alleged negligence of Tully, see Dkt. No. 68, which
the City moved to strike as untimely, see Dkt. No.
March 29, 2018, the Magistrate Judge issued the Report and
Recommendation. See Dkt. No. 83. She recommends
allowing the City's Motion for Partial Summary Judgment
and allowing in part and denying in part Tully's and
Salach's motions for summary judgment. She also
recommends allowing the City's Motion to Strike and,
therefore, denying Castro's Motion for Cross-Summary
and Salach timely filed objections to the Report and
Recommendation. See Dkt. No. 84. Castro and the City
did not object. Nor did Castro respond to Tully and
Motion to Strike and Cross-Motion for ...