Barbosa v. Johnson
| Decision Date | 10 June 2013 |
| Docket Number | Civil Action No. 11–11997–JGD. |
| Citation | 962 F.Supp.2d 316 |
| Parties | Maria BARBOSA, Henriqueta Barbosa, Manuel Barbosa, and Angela Barbosa, Plaintiffs, v. William K. CONLON in his Capacity as Chief of Police for the City of Brockton, Ma, Thomas Hyland, Bryan Maker, Jesse Drane, Kenneth Lofstrum, Brian Donahue, Steven E. Johnson, Mark Celia, Michael Dube, Frank Baez, Anthony Giardini, Emanuel Gomes, Leon McCabe, and John Does 1–3, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Charles P. Kazarian, Christopher S. Malloy, Law Office of Charles P. Kazarian, Boston, MA, for Plaintiffs.
Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.
This action arises out of an altercation between the plaintiffs and various Brockton police officers on November 15, 2008. The plaintiffs have asserted claims for violations of their federal and state constitutional rights as well as violations of their rights under state law. Discovery is complete, and the defendants have moved for summary judgment on all counts of the complaint pursuant to Fed.R.Civ.P. 56(c). (Docket No. 41).
The plaintiffs agree that the claims against defendants Bryan Maker, Kenneth Lofstrum, Michael Dube, Mark Celia, Anthony Giardini and the John Doe defendants should be dismissed. Judgment shall enter in favor of those defendants and they will not be discussed further. With respect to the claims against the other defendants, this court holds as follows:
1. The plaintiffs have failed to establish a claim against William K. Conlon in his official capacity as Chief of Police, and the claims against him are dismissed.
2. The plaintiffs have failed to establish their claims under the Massachusetts Civil Rights Act, and Counts II, IV and VI of the First Amended Complaint are dismissed.
3. Plaintiffs Henriqueta and Angela Barbosa have failed to establish their claims of false arrest, and Count VIII of the First Amended Complaint is dismissed.
4. Except as provided above, the motion for summary judgment is DENIED.
The defendant, William Conlon, is the Chief of Police for the City of Brockton, Massachusetts, and the remaining defendants are Brockton police officers. The plaintiffs Henriqueta and Manuel Barbosa are the parents of plaintiffs Angela and Maria Barbosa.
On November 15, 2008, Officers Hyland and Donahue were assigned to a two-man police cruiser, when they received a dispatch call concerning loud music at 22 Leavitt Street in Brockton, the property owned by Henriqueta and Manuel Barbosa. (DF ¶¶ 1, 13). Upon their arrival at that locale, the Officers noticed beer bottles and alcoholic beverages on the porch, and heard loud music. (DF ¶¶ 3–4). While the police contend that Officer Hyland yelled “police” several times before entering the house through an open side door, the plaintiffs deny that there was any notice given before the police entered the premises. (DF ¶¶ 2, 5–6; PR ¶¶ 2, 5–6). Rather, the plaintiffs contend that plaintiff Henriqueta Barbosa, who was in the house, happened to turn towards her kitchen door and saw two policemen already in the house. (PR ¶¶ 5–6). In any event, it is undisputed that the police did not have a warrant to enter the home, and did not have the occupants' consent. ( See id.). Officer Hyland asserts that he entered the home to “quell the disturbance” of the loud music. (PF ¶ 5; DF ¶ 8). He also contends that when he entered, someone said to him, “we will turn it down, but we are just going to turn it up when you leave.” (DF ¶ 7). The plaintiffs deny that any such statement was made. (PR ¶ 7).
The events that transpired after the police entered the premises also are in dispute. According to the defendants, Officer Hyland entered the premises first, heard very loud music, and went up to the second floor where he saw a DJ with headphones operating a turntable. (DF ¶¶ 9–10). There were about 15 people in the house at the time. (DF ¶ 12; PR ¶ 12). After he asked the man operating the music (later identified as Antonio DaVeiga) to turn the music down, he did. (DF ¶ 11). However, when Officer Hyland went to leave the premises, he contends that someone shouted at him, he had a verbal altercation with someone else, and Henriqueta Barbosa threw a strainer full of silverware which hit Officer Hyland on the back of his head. (DF ¶¶ 14–18). Prior to being struck, Officer Hyland had called for backup because he felt that the situation could get out of control, and Officers Drane, Dube and Celia had arrived. (DF ¶¶ 15, 21). Officers Hyland and Drane placed Henriqueta under arrest, at which time plaintiff Angela Barbosa allegedly threw a cell phone at Officer Hyland, hitting him in the leg. (DF ¶¶ 19–20). Angela was then arrested too, and both women were charged with assault and battery with a dangerous weapon, among other things. (DF ¶¶ 21–22).
The plaintiffs deny that they were in any way instigators of the altercation, or that they threw anything at Officer Hyland. (PR ¶¶ 14–18, PF ¶¶ 32–33). Rather, they contend that the music was turned down as soon as Mr. DaVeiga saw the police car lights outside. (PF ¶ 17). Officer Hyland then requested that the music be turned off completely, which it was. (PF ¶ 18). According to the plaintiffs, Officer Hyland subsequently asked Henriqueta for identification so he could charge her with “anticipatory breach of the peace” despite there being no legal or factual basis for such a charge. (PF ¶¶ 23–28). Officer Hyland then slipped and fell in the kitchen, falling on Henriqueta and on the strainer of silverware. (PF ¶¶ 31, 34). The plaintiffs further contend that Henriqueta was handcuffed, picked up, thrown against a wall or the basement door, thrown outside onto the porch and dragged to a police cruiser. (PF ¶ 36). Angela, who was one week post-partum, was handcuffed, dragged by her arm and hair out of the house, and pulled down the porch steps to the police cruiser, which caused her to bleed from her recent cesarean section incision. (PF ¶¶ 37–38).
The defendants have recently submitted evidence, which does not appear to be in dispute, showing that in connection with the charges arising out of this incident, Henriqueta admitted to sufficient facts to charges of assault and battery with a dangerous weapon, disturbing the peace, interfering with a police officer and resisting arrest. (Docket No. 54). Similarly, the defendants have submitted evidence showing that Angela admitted to sufficient facts to charges of assault and battery with a dangerous weapon, interfering with a police officer and resisting arrest. ( Id.). Both women received a six month continuance without a finding. ( Id.). However, the record does not contain the details as to the facts to which the plaintiffs admitted. It is unclear whether, or to what extent, the admissions in the criminal cases conflict with the plaintiffs' sworn testimony in this proceeding about the events of November 15, 2008. Therefore, for purposes of the summary judgment motion, the plaintiffs' statements of facts, as supported by deposition testimony and other evidence, continue to constitute part of the record.
After their arrest, Henriqueta and Angela Barbosa were taken to the Brockton Police Department. (DF ¶ 23). Thereafter, according to the defendants, plaintiff Maria Barbosa arrived at the station and was verbally abusive to the police officers, yelling racial slurs, among other things. (DF ¶¶ 24, 27). Maria refused to leave the premises, despite repeated requests by the defendant Officer Johnson, who was behind the lobby service window. (DF ¶¶ 25–27). Maria was arrested by Officer Johnson and defendant Officer Baez, who was needed for backup, and charged with disturbing the peace. (DF ¶¶ 28–29).
Again, the plaintiffs dispute the officers' version of events. Rather, they contend that Maria, along with another sister, Nilda, went to the police station after learning that her mother and sister had been arrested. (PF ¶¶ 39–40). Maria and Nilda claim that they were repeatedly ignored, but were eventually told to leave and come back in 30 minutes to bail out Henriqueta and Angela. (PF ¶¶ 39–43). Maria decided to wait at the station instead of leaving and returning 30 minutes later, but Officer Johnson yelled at her and pushed her toward the exit. (PF ¶¶ 44–45). A struggle ensued during which Maria alleges that she was pushed and struck by Officer Johnson and others. (PF ¶¶ 45–51). Maria was then arrested. The outcome of any criminal charges is not included in the summary judgment record.
According to the plaintiffs, Henriqueta needed medical attention for her right arm while in police custody, but her pleas for help were ignored. (PF ¶¶ 53–54). She contends that she needs surgery on her right shoulder for injuries she sustained as a result of the policemen's actions. (PF ¶ 55). The plaintiffs further allege that Angela also needed medical attention while in police custody due to the bleeding from her cesarean incision. (PF ¶ 56). However, Angela's requests for assistance were also ignored. (PF ¶¶ 57, 59). Similarly, the plaintiffs allege that Maria needed medical attention as a result of her altercation with the police, but her requests were ignored as well. (PF ¶¶ 58–59). In addition, the three woman testified that during the course of the events at issue, the police made racial slurs about the fact that they were Cape Verdean, they told Henriqueta to “go back to her country” and the police called Maria an “immigrant bitch,” among other things. (PF ¶¶ 60–66).
By their First Amended Complaint the plaintiffs allege that the defendants are liable under 42 U.S.C. § 1983 for violating their Fourth, Fifth and Eighth Amendment rights by, inter alia, use of excessive force, entering their premises without a warrant,...
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