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Mackey v. Town of Tewksbury

United States District Court, D. Massachusetts

January 7, 2020

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

          MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 74)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.

         Pending before this court is a motion for summary judgment filed by defendants Town of Tewksbury (“the Town”), the Tewksbury Police Department (“TPD”), Tewksbury Police Chief Timothy Sheehan (“Chief Sheehan”), Officer Michael McLaughlin (“Officer McLaughlin”), Officer Markus McMahon (“Officer McMahon”), Sergeant Brian Warren (“Sergeant Warren”), Detective Patrick Connor (“Detective Connor”), Officer David Duffy (“Officer Duffy”), Officer James Ryser (“Officer Ryser”), Sergeant Daniel Kerber (“Sergeant Kerber”), Officer Eric Hanley (“Officer Hanley”), Detective Patrick Regan (“Detective Regan”), Sergeant Timothy Kelly (“Sergeant Kelly”), Sergeant Chris Coviello (“Sergeant Coviello”), Detective Andrew Richardson (“Detective Richardson”), Officer Albert Piccolo (“Officer Piccolo”), Officer Kimberly O'Keefe (“Officer O'Keefe”), Lieutenant Scott Gaynor (“Lieutenant Gaynor”), Detective Michael Donovan (“Detective Donovan”), Lieutenant Robert Stephens (“Lieutenant Stephens”), Officer James Griffin (“Officer Griffin”), Officer Paul Nicosia (“Officer Nicosia”), Officer David Miano (“Officer Miano”), Sergeant Walter Jop, III (“Sergeant Jop”), Officer James Hollis (“Officer Hollis”), Officer Jason McNamara (“Officer McNamara”), Officer Robert Bjokgren (“Officer Bjokgren”), Officer Robert Field (“Officer Field”), and Officer Alysia Russo (“Officer Russo”) (collectively “defendants”).[1] Plaintiff James F. Mackey, Jr. (“plaintiff”) opposes summary judgment and submits this court should enter partial summary judgment on a civil rights claim brought under 42 U.S.C. § 1983 (“section 1983”) against the arresting officers pursuant to Fed.R.Civ.P. 56(f)(1) (“Rule 56(f)(1)”). (Docket Entry ## 74, 79).

         Defendants also move to strike an affidavit filed by plaintiff in opposition to the summary judgment motion. (Docket Entry # 82). A separate opinion addresses this motion as well as defendants' motion to strike. After conducting a hearing, this court took the motions (Docket Entry ## 74, 82) under advisement.

         PROCEDURAL BACKGROUND

         Plaintiff filed this civil rights action seeking damages for an arrest and multiple applications for criminal complaints filed against plaintiff. The complaint sets out the following nine counts: (1) violation of plaintiff's civil rights, specifically his First and Fourth Amendment rights, by defendants in violation of section 1983 (Count I);[2] (2) supervisory liability against the Town, TDP, and Chief Sheehan under section 1983 (Count II); (3) a Monell claim[3] against the Town, TPD, and Chief Sheehan under section 1983 (Count III); (4) false arrest and false imprisonment against “Officer Markus, ” Officer McMahon and Lieutenant Stephens (Count IV); (5) malicious prosecution against the sub-defendants (Count V); (6) abuse of process against the sub-defendants (Count VI); (7) civil conspiracy against all defendants (Count VII); (8) intentional infliction of emotional distress (“IIED”) against all defendants (Count VIII);[4] and (9) violation of the Massachusetts Civil Rights Act (“MCRA”), Massachusetts General Laws chapter 12, sections 11H and 11I, against all defendants (Count IX). (Docket Entry # 1). Defendants filed an answer raising inter alia a qualified immunity defense. (Docket Entry # 9).

         STANDARD OF REVIEW

         Summary judgment is designed “to ‘pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'” Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It is appropriate “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.” Fed.R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

         “Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.'” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (internal citations omitted). The evidence is viewed “in the light most favorable to the non-moving party” and “all reasonable inferences” are drawn in favor of the moving party. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “Unsupported allegations and speculation” however, “do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment.” Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) (“allegations of a merely speculative or conclusory nature are rightly disregarded”). Where, as here, the nonmovant bears the burden of proof at trial, he “‘must point to facts memorialized by materials of evidentiary quality and reasonable inferences therefrom to forestall the entry of summary judgment.'” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014) (internal citation omitted); see Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (as to issues on which nonmovant bears burden of proof, he must “‘demonstrate that a trier of fact reasonably could find in his favor'”) (internal citation omitted).

         FACTUAL BACKGROUND

         1. Hunting Incident and Massachusetts Attorney General's Report

         While plaintiff was bow hunting on public property in Tewksbury, Massachusetts on November 6, 2010, two men confronted him and questioned his right to hunt in the area. (Docket Entry # 81-1, Ex. 3). Plaintiff testified that he called 911 after they became threatening and the two men began to beat him when he started dialing the phone. (Docket Entry # 81-5, Ex. 43, pp. 254-59). The altercation continued until a number of Tewksbury police officers arrived. (Docket Entry # 81-5, Ex. 43, p. 258). The officers, Sergeant Thomas Cooke (“Sergeant Cooke”) and Officer Lozado, questioned the men but made no arrests. (Docket Entry # 81-1, Ex. 2). Plaintiff was transported to a medical center for treatment whereas the two men “just walked away.” (Docket Entry # 81-1, Exs. 2, 3).

         Afterwards, plaintiff called the TPD and complained to Lieutenant Stephens about the officers' decision “not to arrest the [alleged] attackers” because one of the attackers “was a cop” and also described being choked and “kicked in the face” by the two attackers. (Docket Entry # 81-1, Ex. 3). In addition, plaintiff “called the State Police on a recorded line and told them” what happened, including Sergeant “Cooke's favoritism.” (Docket Entry # 81-1, Ex. 3). Sergeant Cooke's narrative report reflects that an officer of the Massachusetts Environmental Police provided Sergeant Cooke with a written statement by plaintiff dated November 7, 2010. (Docket Entry # 81-2). The statement recounts his conversation with Lieutenant Stephens and with “the State Police” regarding Sergeant Cooke's favoritism and plaintiff's above-noted conversation with Lieutenant Stephens. (Docket Entry # 81-1, Ex. 3). The statement additionally informs the TPD that plaintiff would ask “the State Police and” the Massachusetts Attorney General's Office (“AGO”) to investigate the incident and Sergeant Cooke's alleged favoritism. (Docket Entry # 81-1, Ex. 3). As noted, Sergeant Cooke confirms that he received a copy of this statement. (Docket Entry # 81-1, Ex. 2). Sergeant Warren filed an application for a criminal complaint against plaintiff for assault and battery with a dangerous weapon in Lowell District Court along with the narrative report by Sergeant Cooke. (Docket Entry # 81-1, Ex. 2). The prosecution entered a nolle prosequi on September 2, 2011. (Docket Entry # 81-1, Ex. 2). Plaintiff filed a complaint to the AGO on November 4, 2011, which it declined to investigate. (Docket Entry 81-1, Ex. 6).

         2. Abuse Prevention Orders

         In February 2012, plaintiff filed for divorce from his wife, Lisa Mackey. (Docket Entry # 1, p. 10, ¶ 53). In March 2012, the Middlesex Family and Probate Court (“Probate Court”) denied two motions, one filed by Lisa Mackey and the other filed by plaintiff, seeking temporary orders for support and custody of a minor child. (Docket Entry # 81-1, Ex. 7) (Docket Entry # 81, p. 2, ¶ 8). The court noted the absence of “specific, credible grounds” to enter a vacate order and unclear financial issues. (Docket Entry # 81-1, Ex. 7). One of Lisa Mackey's requests was for plaintiff to continue to pay utilities. (Docket Entry # 81-1, Ex. 7). On May 3, 2012, the Lowell District Court issued an abuse prevention order (“the RO”) under Massachusetts General Laws chapter 209A (“chapter 209A”) against plaintiff. (Docket Entry # 81-1, Ex. 10) (Docket Entry # 76-1). The top of the RO states, in part, that “VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.” (Docket Entry # 81-1, Ex. 10). The RO also states that the order “was issued without advance notice because the Court determined that there is a substantial likelihood of immediate danger of abuse.” (Docket Entry # 81-1, Ex. 10). Section A(1) of the RO states, “YOU ARE ORDERED NOT TO ABUSE [Lisa Mackey], by harming, threatening or attempting to harm [Lisa Mackey] physically or by placing [Lisa Mackey] in fear of imminent serious physical harm, or by using force, threat or duress to make [Lisa Mackey] engage in sexual relations.” (Docket Entry # 81-1, Ex. 10).

         Section A(2) of the RO states, in part, that “YOU ARE ORDERED NOT TO CONTACT [Lisa Mackey], in person, by telephone, in writing, electronically or otherwise, either directly or through someone else, and to stay at least 100 yards from [Lisa Mackey] even if [Lisa Mackey] seems to allow or request it.” (Docket Entry # 81-1, Ex. 10). Section A(3) of the RO states, in part, that “YOU ARE ORDERED TO IMMEDIATELY LEAVE AND STAY AWAY FROM THE PLAINTIFF'S RESIDENCE.” (Docket Entry # 81-1, Ex. 10). Subsection A(3)(c) of the RO states, in part, that plaintiff was “not to shut off or cause to be shut off any utilities or mail delivery to [Lisa Mackey].”[5] (Docket Entry # 81-1, Ex. 10).

         On May 17, 2012, the Lowell District Court added paragraph nine to the RO, requiring plaintiff to make support payments of $150 per week “directly to [Lisa Mackey] by mailing payments to 68 Mitchell G. Dr. Tewksbury.” (Docket Entry # 81-1, Ex. 10). On June 15, 2012, it modified paragraph nine to reduce the support payments to $75 per week.[6] (Docket Entry # 81-1, Ex. 10). On June 13, 2012, two days before this modification, the Probate Court entered a temporary order stating that it was adopting the Lowell District Court's order of $150 per week as a temporary support order. (Docket Entry # 76-2). On December 13, 2012, the Lowell District Court again modified paragraph nine, raising the support payments to $150 per week to be consistent with the Probate Court's June 13, 2012 order.7 (Docket Entry # 76-1). The Lowell District Court further modified the RO on December 13, 2012 by requiring “[t]he weekly payment . . . to be postmarked Wednesday of each week.” (Docket Entry # 81-1, Ex. 10). On August 23, 2013, the Lowell District Court modified the RO again by ordering that plaintiff stay 200 yards away from Lisa Mackey's residence. (Docket Entry # 81-1, Ex. 10). Each modification of the RO extended its expiration date by about one year, including another modification on May 16, 2014. (Docket Entry # 81-1, Ex. 10).

         3. TPD Training and Departmental Material

         Slides from the Middlesex District Attorney's Office contain information that pertains to arrest procedures following violations of an order issued under chapter 209A.[8] (Docket Entry # 76-5) (Docket Entry # 77, p. 2, ¶ 7). One slide, entitled “Special Arrest Rule in DV Cases under G.L. c. 209A, § 6(7), ” states that when the violation is a “felony, or a misdemeanor involving ‘abuse' as defined by 209A, § 1 . . . the ‘Preferred Response' is to make a warrantless arrest.” (Docket Entry # 76-5) (emphasis in original). The slide also states in pertinent part: “Mandatory Arrest for Violation of a Restraining Order under G.L. c. 209A, § 6(7): An officer must make an arrest if he/she has probable cause to believe that a suspect has violated any arrestable provision of an existing restraining order from any jurisdiction.” (Docket Entry # 76-5) (emphasis in original).

         Another slide, entitled “When a 209A Order is in Effect, ” sets out two columns (“chapter 209A slide”). (Docket Entry # 76-5). The left column on this slide reads: “Mandatory Arrest when probable cause to believe that there has been a violation of: No Contact[, ] No Abuse[, ] Vacate Household[, ] Stay Away[, ] Surrender[, ] Weapon/FID/LTC.” (Docket Entry # 76-5). The right column reads: “Non-Arrestable 209A Violations: Custody[, ] Visitation[, ] Support[, ] Utilities (Current View Note: We are looking for a case to decide this).” (Docket Entry # 76-5).

         A manual entitled “Criminal Law: Massachusetts Police Manual 2011” authored by John Sofis Scheft, Esq. (“MCLP Manual” or “Scheft Manual”) discusses the different types of restraining orders, the courts that issue them, and violations thereof in chapter 13 of the manual. (Docket Entry # 81-4, Ex. 31). The TPD kept a copy of the Scheft Manual in an office of the “officer in charge” and used the manual in training at the Police Academy. (Docket Entry # 81-4, pp. 307-08, 486-87). In a section labeled “Notes, ” the manual explains that chapter 209A is “different than most laws that officers utilize because it provides both civil remedies (the restraining order and its related protections) and criminal penalties (the consequences that flow from violations of the order).” (Docket Entry # 81-4, Ex. 31, p. 27)[9] (emphasis in original). The Scheft Manual includes a table entitled “Violation of a Restraining Order G.L. c. 209A § 7” that contains four items: “Elements, ” “Mandatory Arrest, ” “Penalty, ” and “Contempt of Court.” (Docket Entry # 81-4, Ex. 31, pp. 29-30). The first item, entitled “Elements, ” states in pertinent part:

Direct or Indirect violation of order. The suspect, either directly or indirectly, violated the terms of a permanent or temporary restraining order, which was in effect at the time of the violation. By failing to do one or more of the following: Refrain from abuse; or [h]ave no contact with the plaintiff or her child(ren); or [s]urrender his firearms, weapons, ammunition and gun licenses; or [v]acate. A vacate order means that defendant must: Surrender the keys immediately; [n]ot damage any household property; [n]ot disrupt utility service or mail delivery; [l]eave and remain away from the house, a multi-family dwelling, and/or the victim's workplace.

(Docket Entry # 81-4, Ex. 31, p. 29) (emphasis in original and italics added). The following section, entitled “Mandatory Arrest, ” states:

G.L. c. 209A, § 6 mandates warrantless arrest on probable cause. This authority applied even when the abuser has fled the scene and is discovered later . . .
Arrest warrant option. Officers may obtain an arrest warrant and avoid applying for a complaint. However, they must use this approach “in good faith.” Comm. v. Ledger, 52 Mass.App.Ct. 232 (2001) (arrest warrant appropriate because the defendant had violated the order twice within a short time period).
Compare Comm. v. Tipolone, 44 Mass.App.Ct. 23 (1997) (the victim approached the police nine months after the defendant violated the order; police should have arranged a show cause hearing; at the time, there was no indication that the defendant posed a threat or flight risk; a warrant was unnecessary).

(Docket Entry # 81-4, Ex. 31, pp. 29-30) (emphasis in original). The last section, entitled “Contempt of Court, ” states: “G.L. c. 209A, § 7 establishes that 209A criminal remedies are not exclusive. A court ‘may enforce by civil contempt . . . a violation of its own order.' Mahoney v. Comm., 415 Mass. 278 (1993).” (Docket Entry # 81-4, Ex. 31, p. 30) (emphasis and ellipses in original). After the table, a section labeled “Notes” states:

Coverage. Officers must remember that only four violations result in criminal penalties under 209A. Thus, police must arrest any offender who violates an order by failing to: (1) refrain from abuse; or (2) stay away or have no contact with the plaintiff; or (3) vacate; or (4) surrender his guns and licenses. Other violations are not arrestable and must be pursued with the court by a motion for contempt -e.g., the defendant fails to pay the victim child support or medical expenses designated in the order.

(Docket Entry # 81-4, Ex. 31, p. 30) (emphasis in original).

         These procedures were also explained, in part, in the TPD's own department manual (“TPD Manual”). (Docket Entry # 81-3, Exs. 28, 29). Chapter 21 of the TPD Manual explains the department's policies and practices regarding arrest. (Docket Entry # 81-4, Ex. 40, p. 664) (Docket Entry # 81-3, Ex. 28) (Docket Entry # 81-5, Ex. 41, pp. 12-13). The chapter begins with: “POLICY: It shall be the policy of the Tewksbury Police Department to comply with all the provisions of the laws, ordinances, and court decisions consistent with arrest and accepted police procedures.” (Docket Entry # 81-3, Ex. 28) (emphasis in original). Regarding warrantless arrests, the TPD manual states in pertinent part:

An officer in his own jurisdiction may make arrest without a warrant for a felony if the officer has probable cause to believe the person to be arrested committed or is committing a felony. An officer may also, with a warrant, arrest for a misdemeanor which constitutes a breach of the peace, or for a misdemeanor where a warrantless arrest is allowed by statute.

(Docket Entry # 81-3, Ex. 28, p. 64). The TPD Manual also sets out specific arrest guidelines related to domestic abuse and chapter 209A violations. (Docket Entry # 81-4, Ex. 40, p. 666) (Docket Entry # 81-5, Ex. 41, pp. 13-14) (Docket Entry # 81-3, Ex. 29). The TPD Manual states in pertinent part:

1. In the interest of immediacy, and the statutory mandate to arrest, officers shall make a warrantless arrest of any person the officer witnesses or has probable cause to believe has violated an emergency, temporary or permanent vacate, refrain from abuse, stay away or no-contact order or judgment, a suspension and surrender order, or protection order issued by another jurisdiction.
2. When there are no refrain from abuse, vacate, stay-away or no contact orders or judgments in effect, arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person:
a. has committed a felony; or
b. has committed an assault and battery of a family or household member in violation of M.G.L. c.265 ss: 13A; or
c. has committed a misdemeanor involving abuse, as defined in M.G.L. c. 209A.

(Docket Entry # 81-3, Ex. 29, pp. 76-77) (emphasis in original).

         The TPD Manual provides a definition for “abuse”:

A. For the purpose of this policy “ABUSE” is defined by M.G.L. c. 209A as the occurrence of one or more of the following acts between family or household members:
1. attempting to cause or causing physical harm,
2. placing another in fear of imminent physical harm;
3. causing another to engage involuntarily in sexual relations by force, threat, or duress.

Docket Entry # 81-3, Ex. 29, p. 72) (bolding in original).

         Several TPD officers testified about their understanding of chapter 209A and TPD arrest policies. Chief Sheehan testified that “[i]f there's probable cause to believe that a violation of a 209A has occurred, our officer's response is supposed to be arrest . . . It's a mandatory mandate from the law.” (Docket Entry # 81-4, Ex. 32, p. 158). In other words, he testified that it was the “practice” of the TPD to arrest for any chapter 209A violation. (Docket Entry # 81-4, Ex. 32, p. 158). Lieutenant Gaynor agreed that “any violation of a restraining order is an arrestable offense without a warrant in Tewksbury.” (Docket Entry # 81-4, Ex. 36, p. 430). He based this opinion “on all the training we've had” and his personal interactions with prosecutors and courts. (Docket Entry # 81-4, Ex. 36, p. 430). Likewise, Sergeant Jop testified that “any violation” of a restraining order authorized a warrantless arrest. (Docket Entry # 81-4, Ex. 37, p. 491). He also agreed that “the actual language in General Law Chapter 209A differs from [TPD] policy, ” explaining that “our policies and procedures are just a guide . . . [t]hey're not . . . set in stone.” (Docket Entry # 81-4, Ex. 37, pp. 492-493). He further agreed that “what really guides [him] or what prescribes the limitations of [his] actions would be the language of General Law Chapter 209A or case law analyzing General Law Chapter 209A.” (Docket Entry # 81-4, Ex. 37, p. 493). Sergeant Warren testified that, “Every 209A violation is arrestable” because “[i]t is written in the law that way.” (Docket Entry # 81-4, Ex. 39, p. 589). He agreed that “the law says you have to arrest for an alleged 209A violation” because that is “something [he] [was] trained in.” (Docket Entry # 81-4, Ex. 39, p. 596). However, he was unsure whether “it was an actual written policy [of the TPD].” (Docket Entry # 81-4, Ex. 39, p. 596). Officer McLaughlin agreed “that 209A, Section 6 provides you or the Tewksbury Police Department with the right to arrest anyone who violates a restraining order.” (Docket Entry # 81-5, Ex. 41, p. 10). He stated that was his “understanding of the law as it was explained to [him].” (Docket Entry # 81-5, Ex. 41, p. 10). Officer McMahon agreed that “any violation of a restraining order is an arrestable offense.” (Docket Entry # 81-4, Ex. 40, p. 665).

         4. June 7, 2012

         On June 7, 2012, Officers McMahon and McLaughlin responded to a radio call regarding an alleged chapter 209A violation at 68 Mitchell Drive. (Docket Entry # 76-14) (Docket Entry # 81-5, Ex. 41, p. 8). In June 2012, Officer McMahon was an 11-year veteran patrolman at the TPD with training in domestic-violence cases at the time of the arrest. (Docket Entry # 81-4, Ex. 40, pp. 655, 657). Officer McLaughlin, a 2011 graduate of the police academy, was a recently-hired patrolman undergoing field training at the TPD.[10] (Docket Entry # 81-5, Ex. 41, p. 4). After they arrived at 68 Mitchell Drive, they spoke with Lisa Mackey, who stated she had a restraining order against plaintiff, her husband at that time. (Docket Entry # 76-14). Lisa Mackey informed the officers that plaintiff had not paid for her cable, telephone, or internet services “and that this violated her restraining order.”[11] (Docket Entry # 76-14). She did not provide paperwork or documents to corroborate her allegations, but the officers “observed the television and phone not functioning.”[12] (Docket Entry # 76-14). Lisa Mackey then contacted a Comcast representative, who, after also speaking with Officer McMahon, would confirm only that the payment for an account in plaintiff's name was past due. (Docket Entry # 76-14). Although Officer McLaughlin's narrative report notes that under the RO plaintiff “cannot shut off any utilities of Lisa's” (Docket Entry # 76-14), Officer McMahon testified at his deposition that neither he nor Officer McLaughlin had a copy of the RO at the scene.[13] (Docket Entry # 81-4, Ex. 40, p. 661). (Docket Entry # 81-5, Ex. 41, p. 8). Rather, Officer McLaughlin testified that Lisa Mackey stated that the RO had a provision that plaintiff could not “shut off the utility.”[14] (Docket Entry # 81-5, Ex. 41, p. 10).

         Officer McMahon contacted Lieutenant Stephens and explained the situation. (Docket Entry # 76-14, p. 4) (Docket Entry # 81-4, Ex. 40, p. 661). Lieutenant Stephens informed him that he could arrest plaintiff for violating the RO.[15] (Docket Entry # 81-4, Ex. 40, pp. 661-662) (Docket Entry # 81-5, Ex. 41, p. 10). In his narrative report, Officer McLaughlin stated that “[a]fter observing the phone and television not functioning and listening to Lisa's explanation of the events, there is probable cause that [plaintiff] had violated [the RO].” (Docket Entry # 76-14). The officers traveled to plaintiff's current residence at 20 South Oliver Street, spoke to plaintiff, and placed him under arrest. (Docket Entry # 76-14). They handcuffed plaintiff before placing him in the back of a police cruiser. (Docket Entry # 81-4, ¶ 3, sent. 2). On the way to the TPD station, plaintiff told Officers McMahon and McLaughlin that “he did not think non payment of a cable bill constituted violation of non payment [sic] of utilities.” (Docket Entry # 76-14) (emphasis omitted); (Docket Entry # 81-1, Ex. 1, ¶ 3, sent. 3). Sergeant Warren applied for a criminal complaint in Lowell District Court. The court found probable cause and arraigned plaintiff for violating chapter 209A the next day after he spent the night in the TPD jail.[16] (Docket Entry # 81-1, Ex. 1, ¶ 3). The complaint was dismissed upon his motion on December 13, 2013. (Docket Entry # 81-2, Ex. 18).

         After Officer McLaughlin was read excerpts of the TPD Manual and chapter 209A at deposition, he agreed that neither authorized him to arrest plaintiff for the chapter 209A violation that Lisa Mackey alleged.[17] (Docket Entry # 81-5, Ex. 41, pp. 17-18). He also agreed that police officers have the authority to arrest for an alleged violation of a chapter 209A restraining order only in cases of abuse, a violation of an order to vacate the premises, and a violation of an order of no contact. (Docket Entry # 81-5, Ex. 41, p. 18). “[A]n alleged violation of an order to pay utilities would have to be charged as criminal contempt and not a violation of a restraining order, ” according to Officer McLaughlin. (Docket Entry # 81-5, Ex. 41, p. 18). Additionally, Officer McMahon agreed that this was the first time he had charged or arrested an individual for shutting off utilities in violation of a restraining order. (Docket Entry # 81-4, Ex. 40, p. 661). After reviewing Officer McLaughlin's narrative report, Sergeant Warren testified that the information was not satisfactory to provide probable cause to arrest plaintiff for violating the RO. (Docket Entry # 81-4, Ex. 39, p. 612). Sergeant Warren would have sought clarification from a judge to determine what a “utility” is and whether the RO requires plaintiff “to pay for Lisa Mackey's cable, internet, and phone.” (Docket Entry # 81-4, Ex. 39, pp. 611-612).

         5. June 8, 2012

         On June 8, 2012, Detective Connor spoke with Lisa Mackey at the TPD station. (Docket Entry # 76-16). She told him that plaintiff had shut off her cell phone service as well as her daughter's that morning to make her “feel unsafe at her house, by having no means of communication to the public.”[18] (Docket Entry # 76-16). She did not present documentary or physical evidence that “the cell phone” was deactivated; instead, she stated that she had contacted “her service provider and spoke with them and the[y] told her it was canceled.” (Docket Entry # 76-16). Detective Connor noted in his narrative report that plaintiff had been arrested for violating the RO the previous day. (Docket Entry # 76-16). He also noted that “[s]ection #3(c) of the Abuse Prevention Order states [plaintiff] is not to shut off any utilities or mail delivery to Ms. Mackey.” (Docket Entry # 76-16). On June 11, 2012, Sergeant Warren, as the complainant, filed an application for a criminal complaint against plaintiff in Lowell District Court based on a chapter 209A violation that took place on June 8, 2012. (Docket Entry # 81-5, Ex. 48). The court eventually dismissed the complaint due to a failure to prosecute on October 8, 2013. (Docket Entry # 81-5, Ex. 48).

         6. June 11, 2012

         On June 11, 2012, Officers Duffy and Russo were dispatched to 68 Mitchell Drive in response to a reported restraining order violation. (Docket Entry # 76-17). When they arrived, Lisa Mackey presented a copy of the RO and explained that plaintiff had visited the residence twice in the last three days. (Docket Entry # 76-17). She said that he had pulled into her driveway and “parked [his truck] directly in front of the house” while dropping off their daughter, Melissa Mackey, on June 8, 2012. (Docket Entry # 76-17). He idled the truck for about 15 minutes while speaking with Melissa Mackey and then drove away. (Docket Entry # 76-17). The officers attempted to call Melissa Mackey on a number that Lisa Mackey provided, but the call failed because the phone had been disconnected. (Docket Entry # 76-17). At her deposition, Melissa Mackey testified that plaintiff dropped her off at the end of the driveway, which was “pretty far back” from the house. (Docket Entry # 81-5, Ex. 45, p. 549). In the narrative report, Officer Duffy noted that “the driveway leading up to the residence is approximately 150 yards long.” (Docket Entry # 76-17).

         Lisa Mackey also told the officers that earlier on June 11, 2012, plaintiff had “pulled his truck into the beginning of the driveway” and stopped approximately 120 yards from the house. (Docket Entry # 76-17). James Mackey III, the son of plaintiff and Lisa Mackey, exited the truck and entered the garage to look for a part for a grill that plaintiff thought might be there. (Docket Entry # 76-17). Lisa Mackey informed James Mackey III that plaintiff was not allowed to remove anything from the property, whereupon James Mackey III returned to the truck. (Docket Entry # 76-17). They then left the property. (Docket Entry # 76-17).

         The officers informed Lisa Mackey that the foregoing incidents violated the RO and asked where they could find plaintiff so they could speak with him. (Docket Entry # 76-17). Lisa Mackey stated that her son lived at 47 Riverdale Street, that he was remodeling a house at 51 Riverdale Street, and that he has been staying with his parents at 20 South Oliver Street. (Docket Entry # 76-17).

         Sergeant Perry, [19] Officer Russo, and Officer Duffy failed to locate plaintiff on Riverdale Street. (Docket Entry # 76-17). They spoke to James Mackey III at his residence, who stated that plaintiff did drive him to 68 Mitchell Drive but that plaintiff had parked on the street, stayed in the truck, and never entered the driveway. (Docket Entry # 76-17). Sergeant Cooke drove to 20 South Oliver Street to check if plaintiff was at his parents' residence. (Docket Entry # 76-17). Meanwhile, Officers Russo and Duffy checked Simply Self Storage at 470 Main Street, where plaintiff “is known to spend some time.” (Docket Entry # 76-17). A number of officers failed to locate plaintiff at any of these locations. (Docket Entry # 76-17). A number of officers returned to the residences a few hours later, but were again unsuccessful. (Docket Entry # 76-17).

         Officer Duffy stated in his narrative report that there was “probable cause to arrest [plaintiff] for these multiple violations” of the RO. (Docket Entry # 76-17). Officer Duffy cited section A(2) of the RO, i.e., that plaintiff “was ordered not to contact” Lisa Mackey “in person, and to stay at least 100 yards from [Lisa Mackey].” (Docket Entry # 76-17). Officer Duffy also wrote that, “According to section A3, plaintiff was ordered to immediately leave and stay away from [Lisa Mackey's] residence located at 68 Mitchell” Drive and that the officers “have probable cause to believe that [plaintiff] violated both of these two sections when he entered the driveway of the residence to drop his children off.” (Docket Entry # 76-17). On June 12, 2012, Sergeant Warren filed an application for a criminal complaint against plaintiff in Lowell District Court based on a chapter 209A violation and Officer Duffy requested a warrant for his arrest. (Docket Entry # 81-5, Ex. 49). The court issued the complaint.[20] On November 6, 2014, the court dismissed the complaint in light of a failure to prosecute. (Docket Entry # 81-5, Ex. 49).

         7. June 21, 2012

         On June 15, 2012, the Lowell District Court amended the RO to reduce plaintiff's weekly payment to Lisa Mackey from $150 to $75. (Docket Entry # 81-1, Ex. 10). Six days later, on June 21, 2012, Sergeant Steven Torres (“Sergeant Torres”) and Officer Edward D. Jackman (“Officer Jackman”) met with Lisa Mackey at the TPD station. (Docket Entry # 81-5, Ex. 50). She told them that plaintiff was denying her cable television from Comcast and that plaintiff was responsible for paying her $150 weekly. (Docket Entry # 81-5, Ex. 50). She provided a copy of the RO, on which the figure of $150 had been handwritten. Sergeant Warren then provided a copy of the RO that had been issued, which showed that the figure had been reduced to $75. (Docket Entry # 81-5, Ex. 50). Sergeant Torres asked Lisa Mackey whether the RO had been amended, to which she responded that the payment had been reduced to $75. (Docket Entry # 81-5, Ex. 50). Sergeant Torres also asked her who had written the figure of $150 on the copy of the RO that she had provided, to which she responded that she had. (Docket Entry # 81-5, Ex. 50). At this point, Lisa Mackey “was advised that she had falsified a court document and advised that she needed to be completely truthful when completing her voluntary statement form.” (Docket Entry # 81-5, Ex. 50).

         Sergeant Torres and Officer Jackman informed Lisa Mackey that they would visit her house to verify the problem. (Docket Entry # 81-5, Ex. 50). Upon arriving, Lisa Mackey turned on the television, which displayed a prompt requesting that a lock code be entered. Lisa Mackey “presumably entered the correct code, ” which caused an error message to be displayed. (Docket Entry # 81-5, Ex. 50). The officers informed her they would follow up on the issue. (Docket Entry # 81-5, Ex. 50).

         After reviewing Officer Jackman's narrative report at his deposition, Sergeant Warren testified that Lisa Mackey had admitted to falsifying a court document. (Docket Entry # 81-4, Ex. 39, p. 615). Sergeant Warren also testified that it was “strange” that Sergeant Torres and Officer Jackman did not charge Lisa Mackey with a crime for the falsification. (Docket Entry # 81-4, Ex. 39, p. 616). Finally, Sergeant Warren agreed that the TPD “[was] now on notice, by its own written documents, that [Lisa] Mackey has lied to the Tewksbury Police Department and has falsified a document, and admitted both those things.” (Docket Entry # 81-4, Ex. 39, p. 616).

         8. June 22, 2012

         On Friday, June 22, 2012, Officer Ryser met with Lisa Mackey at the TPD station. (Docket Entry # 76-18). Lisa Mackey told him that plaintiff had violated the RO by failing to pay her $150, which had been due on June 15, 2012. (Docket Entry # 76-18). Officer Ryser reviewed the RO and determined there was “a Probate Court order” requiring that plaintiff pay $150 weekly to Lisa Mackey and an order from the Lowell District Court requiring that plaintiff pay $75 to Lisa Mackey weekly. (Docket Entry # 76-18). Officer Ryser noted that the Lowell District Court had amended the RO on June 17, 2012, reducing the weekly payment to $75. Officer Ryser determined that this was “more current that [sic] the order stating $150.” (Docket Entry # 76-18). Officer Ryser stated in his narrative report that he would request a [clerk's] hearing “to determine any possible violations of the orders in place.” (Docket Entry # 76-18) (Docket Entry # 81-6, Ex. 51). Officer Ryser later added that Lisa Mackey had called to state that plaintiff had paid “what he owed her.” (Docket Entry # 81-6, Ex. 51). The report, however, notes that “this payment would still be late and could be a possible violation based on that and the amount paid.” (Docket Entry # 81-6, Ex. 51). Sergeant Warren filed an application for a criminal complaint in Lowell District Court based on a chapter 209A violation and requested a hearing. (Docket Entry # 81-6, Ex. 51). The court issued a criminal complaint on August 15, 2012 for a chapter 209A violation. (Docket Entry # 81-6, Ex. 51). The court eventually dismissed the charge on a recommendation of the court's Probation Department on September 19, 2014. (Docket Entry # 81-6, Ex. 51).

         At his deposition, Sergeant Warren stated that Lisa Mackey had lied to Officer Ryser about the amount of money that plaintiff owed her during this incident. (Docket Entry # 81-4, Ex. 39, p. 616). However, Officer Ryser did not charge Lisa Mackey for this conduct. (Docket Entry # 81-4, Ex. 39, p. 616). Sergeant Warren also noted that the RO did not specify a payment deadline that would have required plaintiff to make the payment by Friday on any given week. (Docket Entry # 81-4, Ex. 39, p. 616). Therefore, Sergeant Warren testified that there had been no probable cause for Officer Ryser to request a clerk's hearing. (Docket Entry # 81-4, Ex. 39, p. 616-617).

         9. June 26, 2012

         On June 26, 2012, Lisa Mackey returned to the TPD station to complete a voluntary statement for Sergeant Kerber alleging a violation of the RO. (Docket Entry # 76-19). The voluntary statement claimed that plaintiff “text[ed] [their] daughter Kelly several times both last night and today about her.” (Docket Entry # 76-19). Plaintiff had asked Kelly Mackey “why [Lisa Mackey] had called the police on him today.” (Docket Entry # 76-19). No threats were made. (Docket Entry # 76-19). Rather, the questions plaintiff asked Kelly Mackey were about “Lisa [Mackey's] going ons.” (Docket Entry # 76-19).

         Sergeant Kerber's narrative report noted that plaintiff may have violated the RO, which contained a “no 3rd party clause.” (Docket Entry # 76-19). Sergeant Kerber explained to Lisa Mackey that Lieutenant Gaynor, an officer on duty for the next shift, “would be advised of the 209[A] Violation and [plaintiff's] last known address, ” and that “if they were able to locate him[, ] he would be arrestable. However[, ] if [the officers] [were not] able to locate him[, ] [Sergeant Kerber] would seek a warrant on the violation of the 209A.” (Docket Entry # 76-19). Sergeant Warren requested a warrant and filed an application for a criminal complaint against plaintiff in Lowell District Court based on a chapter 209A violation. (Docket Entry # 81-6, Ex. 52). A judicial officer issued a criminal complaint on August 15, 2012 based on Sergeant Kerber's narrative report and Lisa Mackey's statement. (Docket Entry # 81-6, Ex. 52). The court eventually dismissed the complaint due to a failure to prosecute on November 6, 2014. (Docket Entry # 81-6, Ex. 52).

         After reviewing the narrative report at his deposition, Chief Sheehan testified that Sergeant Kerber should have requested to see the texts. (Docket Entry # 81-4, Ex. 32, pp. 108-09). Chief Sheehan also testified that, in his opinion, the report contained insufficient evidence to support a finding of probable cause. (Docket Entry # 81-4, Ex. 32, p. 109). Sergeant Warren testified similarly. (Docket Entry # 81-4, Ex. 39, p. 617-618). Lieutenant Gaynor also agreed that, if it was him, he “would have wanted to see those text messages as part of [his] investigation” into “an alleged violation of the restraining order.” (Docket Entry # 81-4, Ex. 36, p. 435).

         10. July 6, 2012

         On Friday, July 6, 2012, Officer Russo “was dispatched to 68 Mitchell G[.] Drive.” (Docket Entry # 76-20). There, Lisa Mackey stated that the RO against plaintiff required him to pay her $150 weekly and that he “usually gives the money to their daughter” to deliver it to Lisa Mackey. (Docket Entry # 76-20). Lisa Mackey explained that plaintiff “is supposed to pay every Wednesday, ” but that she had received the payment on Friday the two previous weeks. (Docket Entry # 76-20). She then stated that it was Friday, her daughter was “away this week, ” and “she has not received” the payment. (Docket Entry # 76-20).

         Officer Russo reviewed the RO and noted that although it required plaintiff to pay Lisa Mackey $150 weekly, “it does not specify a particular day, date, or time when the payments are due.” (Docket Entry # 76-20). Officer Russo told Lisa Mackey that there was no violation because “we [were] still technically in the week and [plaintiff] still has time to make the payment to her.” (Docket Entry # 79-20). She then told Lisa Mackey that she (Officer Russo) “would attempt to call [plaintiff] to determine when and how he intended to make the payment this week, ” and Lisa Mackey stated that she understood. (Docket Entry # 76-20). Officer Russo called plaintiff and left a voicemail requesting that he contact her, and called Lisa Mackey to inform her that she “was unable to make contact with [plaintiff].” (Docket Entry # 76-20). The report concludes “[n]o further action at this time.” (Docket Entry # 76-20).

         11. July 12, 2012

         On Thursday, July 12, 2012, Officer Hanley met with Lisa Mackey at the TPD station. (Docket Entry # 76-21). She explained that the RO required plaintiff to make weekly payments of $150. (Docket Entry # 76-21). In his narrative report, Officer Hanley stated that the “ninth stipulation on the restraining order states that [plaintiff] shall pay Lisa [Mackey] $150.00 plaintiff support, weekly.” (Docket Entry # 76-21). Lisa Mackey explained that plaintiff usually gives the money to their daughter to deliver it on Wednesdays, that Lisa Mackey then “signs a receipt, saying she received the payment, and [that] their daughter returns the signed receipt to [plaintiff] as evidence that she received the payment.” (Docket Entry # 76-21). Lisa Mackey explained that because she had not received any money from plaintiff the previous week or the current week, he owed her “a total of $300.00.” (Docket Entry # 76-21). Officer Hanley concluded the narrative report that:

After listening to Lisa [Mackey's] summary of events and reviewing her statement for [sic] there is probable cause to believe that [plaintiff] did not pay Lisa [Mackey] the . . . support that is owed to her and is in violation of the restraining order . . . I am requesting a summons be filed, charging [plaintiff] with . . . [v]iolation of abuse prevention order [under chapter 209A].

(Docket Entry # 76-21). Sergeant Warren filed an application for a criminal complaint in Lowell District Court based on a chapter 209A violation. (Docket Entry # 81-6, Ex. 54). The court dismissed the complaint on a recommendation of the Probation Department on September 19, 2014. (Docket Entry # 81-6, Ex. 54).

         At his deposition, Sergeant Warren agreed that Lisa Mackey had lied about the amount that the RO required plaintiff to pay and about the date on which payments were due. (Docket Entry # 81-4, Ex. 39, pp. 618-19). Sergeant Warren also testified that, in his opinion, there had been no probable cause to issue a complaint against plaintiff. (Docket Entry # 81-4, Ex. 39, p. 619).

         12. July 17, 2012

         On July 17, 2012, Officer Hanley responded to 68 Mitchell Drive concerning an alleged chapter 209A violation. (Docket Entry # 76-22). While at the property, he spoke with Lisa Mackey, who informed him about the RO against plaintiff. (Docket Entry # 76-22). Officer Hanley noted that the “ninth stipulation” of the RO states “that [plaintiff] shall pay Lisa [Mackey] $150.00 support, weekly. The payment is supposed to be mailed to 68 Mitchell Drive. This is the only way the payment is supposed to be payed [sic] to Lisa [Mackey], as detailed in the [RO].” (Docket Entry # 76-22). Lisa Mackey stated plaintiff usually gave the money to Melissa Mackey, their daughter, to deliver on his behalf every Wednesday. (Docket Entry # 76-22). Lisa Mackey also recounted that she would then sign a receipt verifying that she had received the payment. (Docket Entry # 76-22). Lisa Mackey stated that on Friday, July 13, 2012, plaintiff gave Melissa Mackey “the support payment” and “Melissa then brought the payment to Lisa [Mackey].” (Docket Entry # 76-22). Lisa Mackey then “sign[ed] a receipt, which was returned to [plaintiff].” (Docket Entry # 76-22). In his narrative report, Officer Hanley stated that, “After listening to Lisa [Mackey's] summary of the events and reviewing her statement there is probable cause to believe that [plaintiff] did violate the above restraining order by involving a third party and by not sending Lisa her payment as detailed in the restraining order.” (Docket Entry # 76-22). Due to these facts as summarized in Detective Regan's narrative report, “it was determined that [plaintiff] had violated the restraining order and was subject to arrest, ” and “Tewksbury police officers were sent to locations known to be frequented by [plaintiff].” (Docket Entry # 76-2).

         A number of police officers then searched for plaintiff in various locations. (Docket Entry # 76-22). One such location was the residence of plaintiff's father on 20 South Oliver Street in Tewksbury. (Docket Entry # 76-22). Detective Regan's narrative states that Officer Richardson “observed [plaintiff] get off a motorcycle and run into his father's residence.” (Docket Entry # 76-22). When officers approached the residence, plaintiff's father told them that they could not enter without a search warrant. (Docket Entry # 76-22). Officers remained on scene to “secure the residence in anticipation of obtaining” one. (Docket Entry # 76-22).

         Detective Richardson's narrative states, “Chief Sheehan advised [Detective Richardson] to stay in close proximity to the residence” to keep watch on it. (Docket Entry # 81-6, Ex. 55). Eventually, Detective Richardson saw plaintiff's father enter a pickup truck and drive away. (Docket Entry # 81-6, Ex. 55). Detective Richardson had previously observed the bed of the pickup truck, which was covered, close to the open garage door of the residence and “that there was access to the home from the garage.” (Docket Entry # 81-6, Ex. 55). Under the direction of Sergeant Coviello, Detective Richardson followed the truck and observed it going “at a speed that was greater than reasonable for this area” and turning without using a turn signal. (Docket Entry # 81-6, Ex. 55). Detective Richardson then stopped the truck to check if plaintiff was inside the back of the truck. (Docket Entry # 81-6, Ex. 55). When he did not find plaintiff, Detective Richardson let plaintiff's father go with a verbal warning. (Docket Entry # 81-6, Ex. 55). Detective Richardson returned to the residence and soon saw plaintiff arrive on a motorcycle and run inside. (Docket Entry # 81-6, Ex. 55). When another officer arrived, he and Detective Richardson again approached the house and knocked on the door. (Docket Entry # 81-6, Ex. 55). Plaintiff's father repeated that they could not enter without a warrant. (Docket Entry # 81-6, Ex. 55).

         Detective Regan stated in an narrative report that Melissa Mackey visited the TPD station during these events and provided a written statement, which reads:

I, Melissa Mackey have received one hundred and fifty dollars every week, (since its [sic] been ordered by the court) to give to my mother, Lisa Mackey. My father, James Mackey [plaintiff] gives me this money every Friday. Friday is the day my mother told me she receives this support payment. She has never had a problem with it in the past, and my father always pays on time. He has paid her every week since the court order.

(Docket Entry # 76-22) (emphasis omitted). Sergeant Warren included Melissa Mackey's statement in an ensuing application for a criminal complaint. (Docket Entry # 81-6, Ex. 55). On July 17, 2012, Detective Regan requested an arrest warrant for plaintiff for violating the RO and applied for a search warrant for the address at 20 South Oliver Street “to effect[uate] that arrest, ” both of which were denied. (Docket Entry # 76-22) (Docket Entry # 81-6, Ex. 55). The officers at the residence “were instructed to disperse.” (Docket Entry # 76-22).

         Detective Regan concluded his narrative report by stating there was probable cause to believe that plaintiff violated the RO. (Docket Entry # 76-22). First, he stated that plaintiff violated item number two, which required plaintiff to have no contact with Lisa Mackey either directly or through a third party, when he had “his daughter convey money and receipts between he and Lisa Mackey.” (Docket Entry # 76-22) (emphasis omitted). Second, Detective Regan stated that plaintiff violated item number nine, which required plaintiff to mail the support payments to Lisa Mackey, by “giving the payments to his daughter to give to Lisa Mackey.” (Docket Entry # 76-22) (emphasis omitted).

         As noted, Sergeant Warren filed an application for a criminal complaint in Lowell District Court based on a chapter 209A violation. (Docket Entry # 81-6, Ex. 55). A criminal complaint issued on August 15, 2012 charging a chapter 209A violation. (Docket Entry # 81-6, Ex. 55). The court eventually dismissed the complaint on a recommendation of the court's Probation Department on September 19, 2014. (Docket Entry # 81-6, Ex. 55).

         13. July 24 to 26, 2012

         On July 24, 2012, Officer Piccolo spoke with Lisa Mackey at the TPD station, who claimed that plaintiff had cancelled the phone service at 68 Mitchell Drive in violation of the RO. (Docket Entry # 76-24). When Officer Piccolo attempted to call the house phone number, he received a recorded message stating that the number was temporarily disconnected.[21] (Docket Entry # 76-24). Officer Piccolo noted in his report that “[b]ased on section 3 subsection C of the [RO] which states Defendant shall not to [sic] shut off or cause to be shut off any utilities or mail delivery to [Lisa Mackey]” (emphasis omitted), he believed “there has been a violation of this order.” (Docket Entry # 76-24).

         Sergeant Warren and Chief Sheehan filed narrative reports concerning events that followed. (Docket Entry # 76-25) (Docket Entry # 81-6, Ex. 58). Sergeant Warren wrote that on July 25, 2012, Lisa Mackey visited the TPD station to speak with Chief Sheehan. (Docket Entry # 76-25). She stated that she had no “means of communication with the hospital where her gravely sick parents are and [she was] the health care proxy.” (Docket Entry # 76-25). Both Chief Sheehan and Sergeant Warren “made inquiries with a number of other departments and domestic violence groups to try and get a phone for [Lisa Mackey].” (Docket Entry # 76-25).

         Chief Sheehan also contacted Verizon, Lisa Mackey's carrier for the home phone, to ask whether it could reconnect her phone. (Docket Entry # 81-6, Ex. 58). Verizon employees informed him that the phone was in Lisa Mackey's name, that she had contacted Verizon to change her service to Verizon Fios, and that she had set up a date and time to transfer the service. (Docket Entry # 81-6, Ex. 58). Verizon had not completed the transfer installation because it could not reach Lisa Mackey for confirmation. (Docket Entry # 81-6, Ex. 58). Chief Sheehan also learned that the phone had been disconnected because of nonpayment. (Docket Entry # 81-6, Ex. 58). When he relayed this information to Lisa Mackey, she admitted that she had scheduled the migration to Fios but she then decided against it. (Docket Entry # 81-6, Ex. 58). She also stated that she had never cancelled the disconnection of her phone. (Docket Entry # 81-6, Ex. 58). Ultimately, Sergeant Warren helped Lisa Mackey set up a payment plan to reconnect her phone. (Docket Entry # 76-25).

         Sergeant Warren concluded his narrative report by stating that he “believe[s] that we have probable cause to have a warrant issued for [plaintiff]” for violating, section A(3)(C) of the RO, which requires that he “not shut off or cause to be shut off any of the utilities or mail delivery to [Lisa Mackey's] residence.” (Docket Entry # 76-25). Sergeant Warren reported that plaintiff violated this by “not paying the phone bill, thus the phone being shut off for [an] outstanding bill.” (Docket Entry # 76-25). Sergeant Warren filed an application for a criminal complaint and requested a warrant in Lowell District Court based on a chapter 209A violation. (Docket Entry # 81-6, Ex. 58). A criminal complaint issued on August 3, 2012.[22] The court eventually dismissed the charge upon failure to prosecute on October 8, 2013. (Docket Entry # 81-6, Ex. 58).

         At his deposition, Sergeant Warren agreed that “everyone seemed confused that Lisa Mackey reported [plaintiff] shut the service off when, in fact, Lisa Mackey shut the service off.” (Docket Entry 81-4, Ex. 39, p. 621). He explained that his finding of probable cause “[h]ad to be a mistake.” (Docket Entry 81-4, Ex. 39, pp. 622-623). In other words, Sergeant Warren testified that there had been no probable cause to arrest plaintiff and that he “screwed up when [he] was writing the report.” (Docket Entry 81-4, Ex. 39, p. 623). Chief Sheehan testified that he did not “know how [Sergeant Warren] could have taken out a criminal complaint based upon [Chief Sheehan's narrative] report.” (Docket Entry # 81-4, Ex. 32, p. 119). In addition, he acknowledged that he was recorded as saying the following during one of his phone calls:

I still would like to know if this is a continuation of a restraining order violation, is it ongoing every day that the phone is off? Should we still be locking this fucking guy up and dragging his ass in because obviously they don't even think we have the right to arrest because they're not putting it on for a warrant ...

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