United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
Dennis Saylor IV United States District Judge
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
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.
otherwise noted, the following facts are undisputed.
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). He was then handcuffed and transported
to the New Bedford Police Station for booking. (Ryan Dep. at
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).
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
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. ¶
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.).
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).
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.
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
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
remaining defendants have now moved for summary judgment on
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
Claims under 42 U.S.C. § 1983 (Counts One and
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). Here, the individual defendants contend
they are entitled to summary judgment on the basis of
Qualified Immunity Generally
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.
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)).
the relevant claims will be analyzed under that framework.
Excessive Force and False Arrest (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.
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).
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 ...