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Mackey v. Town of Tewksbury

United States District Court, D. Massachusetts

January 7, 2020

JAMES F. MACKEY, JR., Plaintiff,
TOWN OF TEWKSBURY, et al., Defendants.



         Pending before this court are two motions to strike various portions of the summary judgment record with respect to a motion for summary judgment filed by defendants.[1] (Docket Entry ## 82, 91). Defendants filed both motions to strike (Docket Entry ## 82, 91), which plaintiff James F. Mackey, Jr. (“plaintiff”) opposes (Docket Entry ## 89, 93). Plaintiff also moves to deem his LR. 56.1 statement of additional facts admitted. (Docket Entry # 93). The rulings herein apply to the record before this court on defendants' summary judgment motion (Docket Entry # 74).

         I. Motion to Strike Plaintiff's Affidavit

         Defendants move to strike plaintiff's 18-paragraph affidavit (Docket Entry # 81-1) on the basis that it contains legal conclusions as well as self-serving and conclusory statements. (Docket Entry # 82). Defendants also object to certain paragraphs on the basis that they include hearsay and that plaintiff lacks personal knowledge. (Docket Entry # 82). Defendants provide specific reasons tailored to ten of the 18 paragraphs and additionally seek to strike the affidavit in its entirety because of “the numerous defects.” (Docket Entry # 82). Plaintiff, in turn, addresses eight of these ten paragraphs. (Docket Entry # 89).


         “[U]nsupported, speculative assertions, ” and conclusory statements in an affidavit submitted in opposition to summary judgment do not create a genuine or a material fact sufficient to warrant proceeding to trial. Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 315 (1st Cir. 2016); see Méndez-Aponte v. Bonilla, 645 F.3d 60, 68 (1st Cir. 2011) (“agree[ing] with the district court that the plaintiffs' . . . statement of contested material facts consist[s], in large part, of speculation and conclusory allegations for which the only evidentiary support is Méndez-Aponte's sworn affidavit, which itself contains conclusory allegations”). Likewise, statements that amount to “mere unsupported characterizations, ” personal opinions, or “subjective belief[s]” do not create a triable issue. Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 425 (1st Cir. 2017) (plaintiff “provides no detail and no support other than his subjective belief that he was being discriminated against by Costco”); Quinones v. Buick, 436 F.3d 284, 291 (1st Cir. 2006) (“mere unsupported characterizations” in affidavit “was not evidence creating a triable issue”). For example, affidavit statements reflecting a plaintiff's “subjective speculation, ” such as that another employee's higher wages resulted from discrimination, are improper. Quinones, 436 F.3d at 290 (discounting plaintiff's affidavit which, “like his deposition testimony, reflects only Quinones' subjective speculation and suspicion that Barnes' greater earnings” resulted “from discrimination”). Similarly, plaintiff's averments that the TPD “engaged in a campaign of harassment against” plaintiff, “repeatedly issued baseless criminal charges against” him, and “deployed an excessive amount of resources to try to arrest [him] on those charges” between 2012 and 2013 (Docket Entry # 81-1, ¶ 2) amounts to plaintiff's subjective beliefs, personal opinions, and characterizations of the evidence that do not create a triable fact. Paragraph two is therefore stricken.

         A summary judgment affiant must also have personal knowledge for the statements offered. Fed.R.Civ.P. 56(c)(4); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (“affidavits submitted in opposition to” summary judgment motion that do not provide “specific factual information made on the basis of personal knowledge . . . are insufficient”). In addition, affidavit statements regarding the law and the plaintiff's interpretation of the law are inappropriate. See Mancini v. City of Providence, by and through Lombardi, 282 F.Supp.3d 459, 466 (D.R.I. 2017) (“First Circuit . . . consistently reject[s] conclusory affidavits that lack factual specificity and merely parrot the legal conclusions required by the cause of action at the summary judgment stage”); Sarbanis v. Fed. Nat'l Mortg. Assen, No. 17-CV-037-JD, 2017 WL 3822034, at *1 (D.N.H. Aug. 30, 2017) (summary judgment “affidavit must state facts, not legal conclusions”). Simply stated, a plaintiff “may not rely upon [his or] her own interpretation of the law or the legal conclusions [he or] she wishes the Court to draw from the facts at hand.” Siupa v. Astra Tech, Inc., Civil Action No. 10-10525-LTS, 2013 WL 4854031, at *7 (D. Mass. Sept. 10, 2013) (striking statements in plaintiff's “affidavit regarding what is ‘required by Massachusetts law,' and whether certain conduct amounts to ‘sexual harassment'”) (ellipses omitted). Finally, “It ‘is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted.'” Garcia-Garcia, 878 F.3d at 428 (internal citation and brackets omitted).

         Turning to the remaining paragraphs in numerical order, the statement in paragraph three that the TPD arrested plaintiff for not paying a cable bill “despite the fact that there was no court order telling me to do so” (Docket Entry # 81-1, ¶ 3, sent. 1) constitutes a personal, subjective opinion regarding the lack of support for the arrest. The subsequent statement by plaintiff as to what he said during the drive to the police station, however, is neither hearsay nor a personal opinion. It also provides notice to the police that nonpayment of a cable bill might not violate the restraining order at issue. Plaintiff also has personal knowledge that “[t]he TPD placed [him] in handcuffs outside [his] parents' home . . . .” (Docket Entry # 81-1, ¶ 3, sent. 2). Accordingly, the only portion of paragraph three stricken from the record is the above-quoted language, i.e., “despite the fact that there was no court order telling me to do so.” (Docket Entry # 81-1, ¶ 3, sent. 1).

         Defendants next object to paragraph four as hearsay. Plaintiff correctly points out that a statement “offered against an opposing party” by plaintiff is not hearsay. See Fed.R.Evid. 801(d)(2). In the paragraph, plaintiff attests that he heard “the TPD officers” ask his father “to bring [plaintiff] outside” and state “they did not have a warrant.” (Docket Entry # 81-1, ¶ 4). The paragraph, however, does not identify the “TPD officers” referenced in the paragraph by name or otherwise provide a basis to ascertain whether one or more of these “TPD officers” is an opposing party such that Fed.R.Evid. 801(d)(2) applies. Detective Regan's narrative report of the incident notes that Detective Richardson, an opposing party, observed plaintiff go into his father's residence but otherwise only states that “Officers” approached the residence and that plaintiff's father told them “they should get a Search Warrant.” (Docket Entry # 76-22). The second sentence in paragraph four starting with the word “could” is therefore stricken.[2] (Docket Entry # 81-1, ¶ 4, sent. 2). For similar reasons, the third sentence is stricken as hearsay. (Docket Entry # 81-1, ¶ 4, sent. 3). With respect to the remaining portion of paragraph four, plaintiff's observation of his father not allowing the officers to enter the house is based on plaintiff's personal knowledge and is not a statement within the meaning of the hearsay rule. See Fed.R.Evid. 801(a). Founded upon plaintiff's observations, the rest of paragraph four remains in the summary judgment record. The same reasoning applies to the second sentence in paragraph eight, which contains double hearsay and is therefore stricken. Hence, even assuming “the TPD” refers to Officer Hollis or Officer Griffin, each an opposing party, the sentence includes Lisa Mackey's statement that plaintiff “had not made the weekly support payment.” (Docket Entry # 81-1, ¶ 8, sent. 2). The first and third sentences of paragraph eight, which recount plaintiff's observations and what plaintiff did, remain in the record. (Docket Entry # 81-1, ¶ 8, sent. 1, 3).

         The portion of the single sentence in paragraph six that subjectively characterizes Officer Griffin's conduct as trying “to force his way into the house” is stricken as a personal opinion or subjective belief. The remaining portion that plaintiff opened the door and Officer Griffin pushed the door is permissible. See Majahad v. Reich, 915 F.Supp. 499, 502 n.3 (D. Mass. 1996) (denying motion to strike affidavits as “meritless” because “affidavits are almost entirely based on direct personal observations”). Paragraph seven also depicts plaintiff's personal observation that his daughter saw the event and his description of her as “visibly upset, ” which therefore remains part of the summary judgment record. (Docket Entry # 81-1, ¶ 7). The additional subjective characterization of the reason for his daughter being upset, namely, “by the TPD's use of force” is stricken as a subjective characterization of the evidence. (Docket Entry # 81-1, ¶ 7).

         The clause at the end of the sentence in paragraph nine is stricken as a self-serving opinion or a characterization of the evidence. (Docket Entry # 81-1, ¶ 9). The remaining portion of the sentence is permissible after striking the word “still.” (Docket Entry # 81-1, ¶ 9). Paragraph ten is not stricken except for the word “baseless” because, as plaintiff notes, he simply attests that he did not receive notice of a hearing. (Docket Entry # 81-1, ¶ 10, sent. 1).

         Defendants object to paragraph 11 as hearsay. The first clause of the first sentence is not stricken whereas the remaining portion of the sentence beginning with the “the clerk informed me” is stricken as hearsay. (Docket Entry # 81-1, ¶ 11, sent. 1). The third sentence is stricken as hearsay. (Docket Entry # 81-1, ¶ 11, sent. 3). As to the second sentence, the fact that plaintiff spoke with the clerk and the fact that the court recalled the default warrants is within plaintiff's personal knowledge and not hearsay. (Docket Entry # 81-1, ¶ 11, sent. 2).

         Paragraph 16 recounts what plaintiff did; what he said to TPD officers, i.e., that they did not have permission to enter the premises; and what he observed, namely, that the officers stepped inside the premises. (Docket Entry # 81-1, ¶ 16). It does, however, contain plaintiff's personal characterization of the officer's action as entering the premises “despite being told” about the lack of permission. (Docket Entry # 81-1, ¶ 16, sent. 2). Striking the word “despite, ” the paragraph shall otherwise remain part of the summary judgment record.

         II. Motion to Strike Plaintiff's Response and Statement

         Defendants next move to strike plaintiff's LR. 56.1 response in its entirety, the cited exhibits, and the statement of additional facts and/or deem their statement of material facts admitted as noncompliant with LR. 56.1. (Docket Entry # 91). They also submit that even if this court considers plaintiff's response and additional statement, the plaintiff still fails to identify a genuine dispute of material fact sufficient to avoid summary judgment in defendants' favor. (Docket Entry # 91). The latter argument is addressed in the opinion on the summary judgment motion.

         As to the former argument, defendants contend that the 72-page response to defendants' 22-page LR. 56.1 statement of material facts (“SOMF”) and the 87 exhibits as well as the 90-page, 496-paragraph statement of additional facts are not “concise” within the meaning of LR. 56.1. The filing also fails to distinguish between general facts and material facts that are genuinely disputed, according to defendants. Moreover, the headings or captions in the statement of additional facts purportedly show the legal nature of the additional “facts.”[3]More specifically, defendants seek to strike on the basis of “non-compliance with [Local] Rule 56.1”: (1) paragraphs 45 to 78 of the additional statement as legal conclusions rather than facts; (2) responses two to ten and 23 as conclusory assertions, legal argument, and immaterial facts, even though labeled “undisputed”; and (3) responses 12, 13, 15, 17, 19 to 25, 27, 30 to 35, 37, 39 to 44, 46, 47, 50, 53, 55 to 58, 60, 63, 76, 80, 83, 221, and 223 to 232 as conclusory assertions, argument, immaterial facts, and self-serving characterizations.[4] (Docket Entry # 91, p. 4).

         Plaintiff points out that this case necessitates the additional facts because it spans a three-year period, includes 29 defendants, implicates defendants' state of mind, and involves multiple witnesses concerning 19 incidents. (Docket Entry # 93). Plaintiff submits that LR. 56.1 “is very clear” that defendants' failure to controvert his statement of additional facts results in deeming those facts admitted. (Docket Entry # 93). In addition to opposing defendants' motion, plaintiff therefore moves to deem his additional statement of material facts admitted. He points out that LR. 56.1 does not set a page or paragraph limit and maintains that his responses to defendants' SOMF and his additional statement of facts are well-organized and supported with citations to the record. He further maintains that defendants omit “key material facts” from their SOMF, which necessitates more extensive responses and the additional statement. (Docket Entry # 93, p. 5). As an example, plaintiff identifies facts set out in his response to paragraph 116 of defendants' SOMF and paragraph 325 in his additional statement as evidencing that defendants intentionally omitted material facts. (Docket Entry # 93, pp. 5-6). Plaintiff additionally maintains that various exhibits, consisting of Massachusetts General laws chapter 209A (“chapter 209A”) and cases referenced in paragraphs 45 to 78 of his additional statement, are appropriate because of qualified immunity issues and identical, internal TPD policies. (Docket Entry # 93, p. 8).


         District courts “‘enjoy broad latitude in'” administering and enforcing local rules. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 6 (1st Cir. 2002) (internal citation omitted); United States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir. 1989). As an anti-ferret rule, LR. 56.1 functions to focus a court's attention on the facts that are genuinely disputed. See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007) (anti-ferret “rules are designed to function as a means of ‘focusing a district court's attention on what is-and what is not-genuinely controverted'”); accord CMI Capital Market Inv. LLCv. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008) (purpose of “rule is to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute”); Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).[5] The rule is designed “to reduce the burden on trial courts and ...

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