979 F.2d 259 (1st Cir. 1992), 92-1688, Rivera v. Murphy

Docket Nº:92-1688.
Citation:979 F.2d 259
Party Name:Emma RIVERA, Plaintiff, Appellant, v. Paul MURPHY, Defendant, Appellee.
Case Date:November 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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979 F.2d 259 (1st Cir. 1992)

Emma RIVERA, Plaintiff, Appellant,


Paul MURPHY, Defendant, Appellee.

No. 92-1688.

United States Court of Appeals, First Circuit

November 10, 1992

Heard Oct. 6, 1992.

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Jennifer Petersen, with whom Andrew Stockwell-Alpert, Boston, Mass., was on brief, for appellant.

William J. Walsh, Asst. Corp. Counsel, with whom Albert W. Wallis, Corp. Counsel, Boston, Mass., was on brief, for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

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BOWNES, Senior Circuit Judge.

This appeal arises out of an action brought by Emma Rivera against Paul Murphy, a Boston Police officer, for violations of 42 U.S.C. § 1983, Mass.Gen.L. ch. 12, § 11I, and for state law tort claims, including: assault and battery; false arrest; false imprisonment; malicious prosecution; intentional infliction of emotional distress; and, negligence. Rivera alleged she suffered physical and emotional injuries when Murphy subjected her to a warrantless arrest for possession of cocaine in violation of Mass.Gen.L. ch. 94C, § 34. Murphy moved for summary judgment on the ground that he was entitled to qualified immunity because he had probable cause to make the arrest from which the alleged violations and torts arose. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court granted the motion for summary judgment as to the § 1983 claim and six of the seven pendent state law claims.

Rivera appeals this ruling and has asked us to find that Murphy was not entitled to qualified immunity because he lacked probable cause to arrest her, and that, in any event, the district court should have dismissed without prejudice, rather than granted summary judgment on, the pendent state law claims. We agree with Rivera. We reverse and remand the case to the district court.


Standard of Review

Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see, e.g., Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir.1991). This court's review of a district court's grant of summary judgment is plenary. Hoffman v. Reali, 973 F.2d 980, 984 (1st Cir.1992); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). On appeal, as below, we must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan, 904 F.2d at 115. In the absence of a dispute over the underlying material facts, a defendant's entitlement to qualified immunity is a question of law and is reserved for plenary review by this court. Hoffman, 973 F.2d at 984 (citations omitted). We begin by setting out the facts of this case in the light most favorable to Rivera.



On the evening of October 25, 1988, Rivera was double-parked in downtown Boston. A man known to her as Torres said "hi" as he walked past her on the sidewalk, approximately ten feet from the car in which she was sitting. Rivera responded in kind, at which point their conversation terminated. Torres never came within ten feet of Rivera. Moments later, an unmarked police car stopped behind Rivera's vehicle. Paul Murphy, a plainclothes Boston police officer, stopped Torres, searched him, and placed him under arrest. Officer Murphy subsequently approached Rivera and asked that she get out of the car. Rivera complied without objection or resistance. Murphy then instructed Rivera to turn around. Again, Rivera complied. She was handcuffed and placed under arrest. In handcuffing Rivera, Officer Murphy tightened the handcuffs to a degree that caused her pain. After a police cruiser arrived at the scene, Rivera was taken to the police station and placed in a holding cell.

On October 26, 1988, Rivera was arraigned in Boston Municipal Court and was charged with possession of cocaine. She was tried on March 7, 1989. At the close of the Commonwealth's evidence, Rivera was found not guilty. Torres was convicted for unlawful possession of cocaine at a separate trial.

On April 1, 1991, Rivera filed a complaint in Suffolk County Superior Court against

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both the City of Boston and Paul Murphy, individually, and in his capacity as a police officer of the City of Boston. The complaint included eight counts: (I) violations of 42 U.S.C. § 1983; (II) violations of Mass.Gen.L. ch. 12, § 11I; (III) assault and battery; (IV) false arrest; (V) false imprisonment; (VI) malicious prosecution; (VII) intentional infliction of emotional distress; and (VIII) negligence. Defendants removed the case to the United States District Court for the Eastern District of Massachusetts, pursuant to 28 U.S.C. § 1441. The City of Boston filed a motion to dismiss the complaint as to itself, which uncontested motion was allowed.

Pursuant to Fed.R.Civ.P. 56, the remaining defendant, Officer Murphy, filed a motion for summary judgment. Murphy attached an affidavit to the memorandum in support of this motion, stating in pertinent part:

2. I have been a Boston Police Officer since May 15, 1985;

3. I have received training in Drug Investigations through the Boston Police Academy and various on the job training;

4. I have received the following awards for meritorious police work; the William J. Taylor Award and the Boston Police Department Medal of Honor;

5. I have a bachelor's degree in Marketing from Boston College (Class of 1982);

6. On October 25, 1988 I responded to 680 Tremont Street at the direction of my superiors Lieutenant Cellucci and Sergeant Famolare, as there was a report of drug trafficking taking place at that location;

7. I observed the Plaintiff Emma Rivera involved in what I believed to be a drug transaction based on my observations, training and experience;

8. I arrested Emma Rivera, Roberto Cruz and Jesus Torres on probable cause and without a warrant for possession of a Class "B" substance to wit Cocaine;

9. I formed my probable cause on a reasonable good faith belief under the attendant circumstances.

On May 5, 1992, the district court allowed Murphy's motion for summary judgment with respect to counts I-VII after finding that Murphy was entitled to qualified immunity. The court dismissed count VIII for lack of pendent jurisdiction. Rivera filed a timely appeal.

There is no genuine dispute over the material facts of this case. The two affidavits that were before the court below, and which are before this court on appeal, are not inconsistent. Rivera contends that Torres never came within ten feet of her on the night when she was arrested. Officer Murphy contends that he saw Rivera engaged in what he thought was a drug transaction based on his "observations, training and experience." Officer Murphy's affidavit does not deny any of the factual allegations of Rivera. He says nothing whatsoever about what facts led him to believe that Rivera was involved in a drug transaction. As far as his affidavit is concerned, he arrested Rivera simply because, for a few seconds, she was at a distance of ten feet from Torres. Officer Murphy's statement is not at variance with that of Rivera. Rivera does not, because she cannot, rebut the subjective and conclusory assertion of Murphy.

At issue on appeal is the legal conclusion asserted by Officer Murphy in his affidavit and relied upon by the court below. That is, taking the facts as asserted in Rivera's affidavit as true, summary judgment should have been granted in favor of Officer Murphy only if a reasonable police officer could have believed he had probable cause to arrest Rivera which would have cloaked him with...

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