Boyle v. Barnstable Police Dep't

• Decision Date: 22 September 2011
• Docket Number: Civil Action No. 09–11435–MBB.
• Citation: 818 F.Supp.2d 284
• Parties: John E. BOYLE, Plaintiff, v. BARNSTABLE POLICE DEPARTMENT, Town of Barnstable, John Klimm, Town Manager, Chief John Finnegan (retired), Chief Paul McDonald, Detective Sgt. John F. Murphy, Sgt. Arthur Caido and Sgt. Richard Morse, Defendants.
• Court: U.S. District Court — District of Massachusetts

818 F.Supp.2d 284

John E. BOYLE, Plaintiff,

v.BARNSTABLE POLICE DEPARTMENT, Town of Barnstable, John Klimm, Town Manager, Chief John Finnegan (retired), Chief Paul McDonald, Detective Sgt. John F. Murphy, Sgt. Arthur Caido and Sgt. Richard Morse, Defendants.

Civil Action No. 09–11435–MBB.

United States District Court, D. Massachusetts.

Sept. 22, 2011.

John E. Boyle, Hyannis, MA, pro se.

Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 25)

BOWLER, United States Magistrate Judge.

Pending before this court is a motion for summary judgment (Docket Entry # 25) filed by defendants Barnstable Police Department, Town of Barnstable, John Klimm (“Klimm”), Chief John Finnegan (retired) (“Chief Finnegan”), Chief Paul McDonald (“Chief McDonald”), Detective Sergeant John F. Murphy (“Murphy”), Sergeant Arthur Caido (“Caido”) and Sergeant Richard Morse (“Morse”) (collectively: “defendants”) pursuant to Rule 56, Fed.R.Civ.P. (“Rule 56”).

PROCEDURAL BACKGROUND

On August 28, 2009, plaintiff John E. Boyle (“Boyle”) filed a verified complaint (Docket Entry # 1) against defendants in which he raises various federal claims under 42 U.S.C. § 1983 (“section 1983”). Count One alleges that defendants violated Boyle's Fifth and Fourteenth Amendment rights by retaliating against him for exercising his First Amendment right to free speech. Count Two alleges that defendants violated Boyle's Fifth and Fourteenth Amendment rights by conspiring against him in violation of section 1983 and 42 U.S.C. § 1985 (“section 1985”). Count Three alleges that defendants violated Boyle's Fifth and Fourteenth Amendment rights by refusing to prevent or neglecting to prevent harassment, a malicious prosecution and conspiracy targeting Boyle. The count also alleges that Barnstable Police Department and the Town of Barnstable had an official policy or custom of failing to instruct and supervise Caido, Morse and Finnegan to refrain from maliciously harassing and prosecuting citizens and from conspiring to deprive citizens of their constitutional rights. In addition to the aforementioned federal claims, Boyle raises state law claims against defendants for malicious prosecution (Count Four); abuse of process (Count Five); conspiracy (Count Six); intentional infliction of emotional distress (Count Seven); and libel, slander and defamation (Count Eight).

Defendants move for summary judgment on both the federal and state law claims. Defendants additionally seek to dismiss Murphy and Chief McDonald because the complaint does not make any specific factual allegations against them. Defendants also seek dismissal of the Barnstable Police Department because it is not a legal entity subject to suit and dismissal of the Town of Barnstable because a municipality cannot incur liability under a theory of respondeat superior. Finally, defendants submit that the individual defendants are subject to qualified immunity.

On March 22, 2011, this court held a hearing and took the motion for summary judgment (Docket Entry # 25) under advisement.

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.” Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 12 (1st Cir.2007) (citation and internal quotation marks omitted). When the record shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” summary judgment is appropriate. Rule 56(a), Fed.R.Civ.P. “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the nonmoving party.” Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.2008). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Id.

“The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citation, internal brackets and internal quotation marks omitted). “After such a showing, the burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.” Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir.1998) (citation and internal quotation marks omitted).

The nonmoving party, who bears the ultimate burden of proof, may not rest on allegations in his briefs, see Borschow Hosp. & Med. v. Cesar Castillo, 96 F.3d 10, 14 (1st Cir.1996), “but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute.” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Where, as here, a complaint is verified, it is appropriate to consider factual averments based on personal knowledge therein as the equivalent of an affidavit for purposes of summary judgment. See Sheinkopf v. Stone, 927 F.2d 1259, 1262–1263 (1st Cir.1991).

Defendants submit a LR. 56.1 statement of undisputed facts. Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record.¹ See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir.2003) (the plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton School Department, 322 F.3d 97, 102 (1st Cir.2003) (citing LR. 56.1 and deeming admitted undisputed material facts that the plaintiff failed to controvert); see also Kenda Corp., Inc. v. Pot O'Gold Money Leagues, Inc., 329 F.3d 216, 225 n. 7 (1st Cir.2003) (citing principle that “ ‘[p]ro se status does not insulate a party from complying with procedural and substantive law’ ”). The court also examines the facts in a light most favorable to the non-moving party and resolves any reasonable inferences in that party's favor. See Dasey v. Anderson, 304 F.3d 148, 153 (1st Cir.2002).

Construing the facts in Boyle's favor for the purpose of adjudicating the summary judgment motion, they show the following.

FACTUAL BACKGROUND ²

Boyle, a longtime resident of Hyannis, Massachusetts, served on the Barnstable Town Council for six years. (Docket Entry # 1, ¶ 1). At all times relevant to this action, Boyle was the owner and chief executive officer of King's Coach, Inc. (“King's Coach”), a sedan, van and limousine service provider licensed in the Town of Barnstable. (Docket Entry # 30, ¶ 1). The instant action arises out of events between Boyle and defendants in connection with the licensing and operation of King's Coach in 2006.

The Town of Barnstable Rules and Regulations for the Regulation of Taxi Cabs and the Operation Thereof (“Rules and Regulations”) dictate that an individual must obtain a permit from the Barnstable Town Manager in order to operate a livery business in the Town of Barnstable.³ (Docket Entry # 30, ¶ 2; Docket Entry # 33, Ex. 2). In order to acquire a permit, which the Rules and Regulations also refer to as “a vehicle for hire license,” a business must have its vehicles inspected and pay a fee. (Docket Entry # 30, ¶ 2; Docket Entry # 33, Ex. 2). Section 21 of Massachusetts General Laws chapter 40 (“ section 21”) allows towns such as Barnstable to prescribe such ordinances and bylaws and affix monetary penalties not exceeding a certain amount for any breach. Mass. Gen. L. Ch. 40, § 21. The permit also designates the number of vehicles the business may use under the permit. (Docket Entry # 33, Ex. 2). The Rules and Regulations also provide that “the Chief of Police of the Town of Barnstable or any person or persons so designated by the Chief of Police” may act as the examiner for the regulations. (Docket Entry # 30, ¶ 8; Docket Entry # 33, Ex. 2). Pursuant to the Rules and Regulations, a vehicle for hire license “shall be valid for such term as the Examiner shall determine.” (Docket Entry # 32, Ex. 2; Docket Entry # 33).

The examiner may suspend or revoke a license at any time if he believes the license holder violated any of the Rules and Regulations. (Docket Entry # 30, ¶ 8; Docket Entry # 32; Docket Entry # 33, Ex. 2). The examiner must, however, notify the license holder of the suspension or revocation in writing as well as inform the licensee of his right to a hearing before the Town Manager. (Docket Entry # 32; Docket Entry # 33, Ex. 2). “A request for a hearing [however] shall not delay any suspension or revocation.” (Docket Entry # 33, Ex. 2).

Boyle founded King's Coach in April of 2000. (Docket Entry # 1, ¶ 2). At its peak, the company owned 20 vehicles and employed 35 drivers and eight office staff. (Docket Entry # 1, ¶ 2). In 2004 and 2005, King's Coach raised $980,000 and $880,000 in revenues, respectively. (Docket Entry # 1, ¶ 2). Boyle also owned and operated Shuttle King, “a shared ride shuttle service operating in 40 cit[ies] and towns” in Massachusetts. (Docket Entry # 1, ¶ 2). The Department of Telecommunications and Energy licensed Shuttle King, not the Town of Barnstable.⁴ (Docket Entry # 1, ¶ 2). On August 18, 2005, Boyle purchased Five Star Enterprises, Inc. (“Five Star”), a “rubbish and demolition and construction collection service” operating in Falmouth, Massachusetts (“Falmouth”), from a court appointed receiver.⁵ (Docket Entry # 1, ¶ 4).

On November 16, 2005, Thomas Geiler (“Geiler”), the Town of Barnstable licensing agent, notified Boyle that he must have the livery vehicles inspected at the Barnstable police station on December 13 or 14, 2005, in order to obtain 2006 permits for King's Coach. (Docket Entry # 30, ¶...