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Bird v. City of New Bedford

United States District Court, D. Massachusetts

September 13, 2019



          F. Dennis Saylor IV United States District Judge

         This is a civil rights action. Plaintiff Christopher Bird was taken into protective custody by the New Bedford police based on his apparent intoxication. While at the police station, he was allegedly assaulted and tased by several police officers. He has brought suit against the City of New Bedford and individual officers under 42 U.S.C. § 1983, alleging constitutional claims based on excessive force, false arrest, and malicious prosecution, and under various common-law theories.

         Defendants have moved for summary judgment, based principally on the ground that they are entitled to qualified immunity. For the following reasons, the motion will be granted in part and denied in part.

         I. Background

         Unless otherwise noted, the following facts are undisputed.

         A. Factual Background

         On November 6, 2014, Officers James Ryan and David Michalski of the New Bedford Police Department responded to a call regarding an intoxicated male at the Wonder Bowl, a bowling alley in New Bedford. (Michalski Dep. at 110-11). They arrived on scene, identified Christopher Bird, and escorted him outside. (Id. at 111-19; Ryan Dep. at 104). Once outside, they assessed Bird, who appeared to be intoxicated, and placed him in protective custody. (Michalski Dep. at 119-20; Ryan Dep. at 110).[1] He was then handcuffed and transported to the New Bedford Police Station for booking. (Ryan Dep. at 110, 114-15).[2]

         At the police station, Bird was handcuffed to a bench while waiting to be photographed for booking. (Bird Dep. at 45; Compl. ¶ 26; Defs. Ex B; Defs. Ex. C). In the process of taking his photograph, the handcuffs were removed. (Compl. ¶ 28). An altercation between Bird and several officers followed. (Defs. Ex. C).

         The parties disagree as to how the altercation unfolded. Part of it was captured on video, but the recording is clearly incomplete. Furthermore, the recording is actually a video of a video, which Officer Demers took on his personal cell phone; the original video was not preserved by the City. (Demers Dep. at 100, 103, 110; Cordeiro Dep. at 84-85).[3]

         According to Bird, after his handcuffs were removed, he was asked to get up. (Bird Dep. at 45). He testified that he got up, sidestepping Officer Demers to go in the direction the officer wanted him to go. Officer Demers then grabbed his right arm. (Id. at 45-46). He testified that he threw his right arm up in response, and that Officer Demers then threw him up against the wall. (Id. at 46-47). According to Bird, Officer O'Shea came over and held his arms while Officer Demers began striking him in the face, causing him to fall to the ground and sustain injuries to his face and head, including a broken nose. (Compl. ¶ 29; Bird Dep. at 47-49). Officer Demers then ordered Officer Ryan, who had come over to assist, to tase Bird. Officer Ryan did so, which allegedly “disrupted . . . Bird's central nervous system and incapacitated him.” (Compl. ¶¶ 31-32; see Bird Dep. at 49-51). After the attack, Bird alleges that he was left handcuffed and bleeding in the booking room. (Compl. ¶ 37).[4]

         According to defendants, as Bird was being uncuffed to have his booking photograph taken, he suddenly rose from the bench and attacked Officer Demers. (Defs. Mem. in Supp. at 3, citing Defs. Ex. C (Video)). They allege that Bird was then restrained by Officers Demers and O'Shea. (Id.). According to defendants, “due to [Bird's] continued violent resistance, [Officer] Ryan assisted.” (Id.). “During the course of [Bird's] resistance, ” they allege, “[he] was tased by Defendant Ryan.” (Id.).

         After the alleged assault, Bird was arrested and taken to the Ash Street Jail. He was charged with assault and battery on a police officer (Officer Demers) and disorderly conduct. (Defs. Ex. D (Arrest Report)). A jury ultimately found him not guilty of all charges. (Compl. ¶ 5).

         Joseph Cordeiro is the Chief of Police of New Bedford. Cordeiro was not present at the Wonder Bowl or at the booking area where the altercation took place.

         B. Procedural Background

         On November 3, 2017, Bird filed a complaint against the City of New Bedford, the New Bedford Police Department, and officers Greg Demers, David Michalski, James Ryan, Terence O'Shea, and Police Chief Joseph Cordeiro, both individually and in their official capacities. The complaint alleged seven claims: (1) a claim under 42 U.S.C. § 1983 for excessive force and unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments; (2) a claim for excessive force and unreasonable search and seizure in violation of Article 14 of the Massachusetts Declaration of Rights; (3) a claim under § 1983 for malicious prosecution in violation of the Fourth, Fifth, and Fourteenth Amendments; (4) assault; (5) battery; (6) false arrest; and (7) malicious prosecution.

         On February 20, 2018, defendants moved for partial judgment on the pleadings, seeking to dismiss all claims against the New Bedford Police Department and the named police defendants in their official capacities. That motion was granted on March 20, 2018.

         The remaining defendants have now moved for summary judgment on all claims.[5]

         II. Legal Standard

         The role of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary judgment is appropriate when the moving party shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A ‘genuine' issue is one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving party may not simply “rest upon mere allegation or denials of his pleading, ” but instead must “present affirmative evidence.” Id. at 256-57.

         III. Analysis

         A. Claims under 42 U.S.C. § 1983 (Counts One and Three)

         Counts One and Three allege claims under 42 U.S.C. § 1983 for violations of constitutional rights arising under the Fourth, Fifth, and Fourteenth Amendments. A plaintiff in a § 1983 action must establish (1) that the defendant has deprived him or her of a right secured by the Constitution, and (2) that the defendant did so acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970); see also Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000).[6] Here, the individual defendants contend they are entitled to summary judgment on the basis of qualified immunity.

         1. Qualified Immunity Generally

         The doctrine of qualified immunity protects public employees “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is determined according to a two-part test. See Pearson v. Callahan, 555 U.S. 223, 232-33 (2009); Maldonado v. Fontanes, 568 F.3d 263, 268-9 (1st Cir. 2009). The relevant inquiries are (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant's alleged misconduct. Maldonado, 568 F.3d at 268-9.

         The question is not whether some right has been clearly established at a highly abstract level-for example, the right to be free from unreasonable searches and seizures-but “whether, under the circumstances that confronted the official, ‘a reasonable official would understand that what he is doing violated that right.'” Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other words, the question is “whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right.” Burke v. Town of Walpole, 405 F.3d 66, 77 (1st Cir. 2005) (quoting Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004)). The qualified-immunity doctrine “leaves ample room for mistaken judgments.” Berthiaume, 142 F.3d at 15 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

         Each of the relevant claims will be analyzed under that framework.

         2. Excessive Force and False Arrest (Count One)

         Count One asserts a claim for “violation of the right to freedom from excessive force, unreasonable search and unreasonable seizure” under the Fourth and Fourteenth Amendments. (Compl. ¶ 70). It specifically alleges that defendants, acting under the color of state law, “violated Bird's right to be free from unreasonable search and seizure by, inter alia, using excessive force, and unreasonable and unjustified force” and by “arresting and imprisoning” him, “charging him with multiple offenses, and prosecuting him, all without probable cause.” (Id.). In substance, Count One thus asserts a claim of excessive force; a claim of false arrest; and a claim of malicious prosecution, all under the Fourth and Fourteenth Amendments. Because Count Three expressly alleges a constitutional claim based on malicious prosecution, that claim will be addressed separately.

         a. Excessive Force

         In order to establish a Fourth Amendment claim based on excessive use of force, the plaintiff must show (1) that there was a seizure within the meaning of the Fourth Amendment; and (2) that the use of force during the seizure was unreasonable under all circumstances. Graham v. Connor, 490 U.S. 386, 394 (1989); Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002). The right to make an arrest carries with it the right to use some degree of force. See Graham, 490 U.S. at 396. Only excessive force is actionable; “not every push or shove rises to the level of a constitutional violation.” Gaudreault v. Municipality of Salem, 923 F.2d 203, 205 (1st Cir. 1990).

         The critical question is whether the force used was “excessive under objective standards of reasonableness.” Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The objective reasonableness of the force used is determined by means of a balancing test that considers, among other things, the severity of the suspected offense, whether the suspect poses an immediate threat ...

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