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Kam-O'Donoghue v. Tully

United States District Court, D. Massachusetts

September 10, 2019

ADRIANA G. KAM-O'DONOGHUE, as Personal Representative of the Estate of ALEXANDER CASTRO, Plaintiff,
v.
JOHN TULLY and KEITH SALACH, Individually and in their Capacities as Lawrence Police Officers, and the CITY OF LAWRENCE, MASSACHUSETTS Defendants.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         I. INTRODUCTION

         In the 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.[1]

         The 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 objections.

         The 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.

         In 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 Judgment.

         II. LEGAL STANDARDS

         A. Review of a Magistrate's Disposition

         Federal 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)).

         Where 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. 1987) .

         B. Summary

         Federal 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).

         A fact 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.

         To 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) .

         The 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.

         III. FACTS

         The 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.

         While 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 male.

         The 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.

         At some 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 vehicle.

         After 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 trigger guard.

         The parties dispute what happened next. Castro says that after coming to a stop on the traffic island, he drove forward.[2] 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.

         Tully then intentionally fired his weapon.[3] 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.

         B. LPD Policies

         LPD has 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.

         Officers 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.

         LPD 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.

         IV. PROCEDURAL HISTORY

         On 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.

         The 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. 73.

         On 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 Judgment.

         Tully 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 Salach's objections.

         V. ANALYSIS

         A. Motion to Strike and Cross-Motion for ...


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