Cecchinato v. Town of Sheffield

• Decision Date: 04 January 2021
• Docket Number: Civil Case No. 3:19-30076-KAR
• Parties: JAMES CECCHINATO, Plaintiff, v. THE TOWN OF SHEFFIELD, BRENNAN POLIDORO, individually and in his official Capacity, BRIAN SHAW, individually and in his official capacity, ERIC MUNSON, individually and in his official capacity, Defendants.
• Court: U.S. District Court — District of Massachusetts

JAMES CECCHINATO, Plaintiff,
v.
THE TOWN OF SHEFFIELD, BRENNAN POLIDORO,
individually and in his official Capacity, BRIAN SHAW,
individually and in his official capacity, ERIC MUNSON,
individually and in his official capacity, Defendants.

Civil Case No. 3:19-30076-KAR

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

January 4, 2021

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION TO AMEND COMPLAINT
(Dkt. No. 38)

ROBERTSON, U.S.M.J.

This matter is before the court on the motion by plaintiff James Cecchinato ("Plaintiff") for leave to amend his complaint ("Plaintiff's Motion") (Dkt. No. 38). The defendants, who, if this motion is granted will include the Town of Sheffield ("the Town"), Brennan Polidoro ("Polidoro"), and Eric Munson ("Munson") (collectively, "Defendants"), assent to so much of the motion as removes all claims against Brian Shaw, the claim for violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, and the Monell and the failure to supervise claims against the Town (Dkt. No. 39 at 3). Defendants oppose so much of Plaintiff's Motion as seeks to add a negligence clam against the Town and claims under 42 U.S.C. § 1983 against Eric Munson (Dkt. No. 38). The court heard argument from the parties on October 6, 2020, and for the reasons set forth below, grants Plaintiffs' Motion in part and denies it in part.

I. BACKGROUND

Plaintiff filed this action on June 3, 2019 (Dkt. No. 1). The attorneys now representing Plaintiff entered an appearance on or around February 12, 2020 (Dkt. Nos. 32-33). On February

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27, 2020, the court entered a revised scheduling order, that, insofar as pertinent here, ordered that motions for leave to amend the pleadings be filed by July 24, 2020 (Dkt. No. 37).

In Plaintiff's proposed First Amended Complaint ("FAC"), he alleges that, on June 6, 2016, he was driving a gray 1997 Honda Accord with Connecticut plate 443EFD through the Town when Polidoro activated the emergency lights in his cruiser (FAC, Dkt. No. 38-1 at ¶¶ 13-14). Plaintiff pulled over to the side of road. Polidoro stopped his cruiser behind the Honda Accord, exited the cruiser, and, shielding himself behind the door of the cruiser, pointed his service weapon in Plaintiff's direction (FAC ¶¶ 15-17). Munson arrived on the scene in a second cruiser, exited the vehicle, and pointed his service weapon at Plaintiff (FAC ¶ 18). Polidoro ordered Plaintiff out of the vehicle. Plaintiff complied and Polidoro ordered him to lie on the ground. The officers continued to point their service weapons at Plaintiff. Once Plaintiff was on the ground, Polidoro approached him and told him to put his face on the pavement. When Plaintiff hesitated, Polidoro forced Plaintiff's face onto the pavement (FAC ¶¶ 19-23). Polidoro cuffed Plaintiff's hands behind his back, then ordered Plaintiff to stand up (FAC ¶¶ 24-25). Because of the position he was in, Plaintiff could not get up quickly. Polidoro yanked him to his feet, pulling him up by his left elbow, and placed Plaintiff in the rear of the cruiser (FAC ¶¶ 26-29). Polidoro and Munson then searched Plaintiff's car. Having found nothing indicating criminal activity, they released Plaintiff (FAC ¶¶ 30-31). Plaintiff's injuries from the encounter required arthroscopic surgery for a rotator cuff repair (FAC ¶¶ 32-27).

Based on these allegations, Plaintiff asserts Fourth Amendment claims under 42 U.S.C. § 1983 against Polidoro and Munson for a warrantless search and seizure and for excessive use of force (Count I); false imprisonment against Polidoro (Count II); intentional infliction of

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emotional distress against Polidoro (Count III); assault and battery against Polidoro (Count IV); and negligence against the Town (Count V).

II. DISCUSSION

1. Standard of Review

A motion to amend a complaint will be treated differently depending on its timing and the context in which it is filed. A plaintiff is permitted to amend a complaint once as a matter of right prior to the filing of a responsive pleading by the defendant. Fed. R. Civ. P. 15(a). Thereafter, the permission of the court or the consent of the opposing party is required. The default rule mandates that leave to amend is to be "freely given when justice so requires," id., unless the amendment "would be futile, or reward, inter alia, undue or intended delay." Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).

As a case progresses, and the issues are joined, the burden on a plaintiff seeking to amend a complaint becomes more exacting. Scheduling orders, for example, typically establish a cut-off date for amendments (as was . . . the case here). Once a scheduling order is in place, the liberal default rule is replaced by the more demanding "good cause" standard of Fed. R. Civ. P. 16(b). O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-155 (1st Cir. 2004). This standard focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party opponent. Id.

Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12 (2004) (footnotes omitted); see also Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013). "Amendment of pleadings is largely a matter within the discretion of the district court." Guest-Tek Interactive Entm't Inc. v. Pullen, 731 F. Supp. 2d 80, 92 (D. Mass. 2010) (citing Farkas v. Texas Instruments, Inc., 429 F.2d 849, 851 (1st Cir. 1970)). "If leave to amend is sought before discovery is complete and neither party has moved for summary judgment, the accuracy of the 'futility' label is gauged by reference to the liberal criteria of Federal Rule of Civil Procedure 12(b)(6)." Hatch v. Dep't for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). When evaluating a motion to dismiss, the court assumes the truth of the well-pleaded facts in the complaint and draws all reasonable inferences in the plaintiff's favor. See, e.g., The Hilsinger Co. v. Kleen

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Concepts, LLC, 164 F. Supp. 3d 195, 199 (D. Mass. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570 (2007); Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007)).

The court initially set a May 29, 2020 deadline for completion of non-expert discovery (Dkt. No. 22). In late February 2020, following a change in Plaintiff's counsel, the court extended the deadline for completion of non-expert discovery to September 30, 2020 (Dkt. No. 37). As of September 17, 2020, the parties had not taken depositions (Dkt. No. 39 at 2). At the hearing on Plaintiff's Motion, at the joint request of the parties, the court extended the deadline for completion of non-expert discovery to December 31, 2020. No deadline has been set for the filing of dispositive motions (Dkt. No. 41). Plaintiff's Motion was filed on September 3, 2020 (Dkt. No. 38). Plaintiff's counsel has explained that he did not meet the July 24, 2020 deadline for filing Plaintiff's Motion because he was seeking Defendants' assent to the motion and because he did not receive defendants' interrogatory answers prior to the July 24, 2020 deadline (Dkt. No. 38 at 3 n.7). "[G]iven the totality of the circumstances[, the status of non-expert discovery, and the modest delay beyond the deadline set in the court's scheduling order], the court reviews [Plaintiff's Motion] for leave to amend pursuant to the standards governed by Rule 15(a)." Elliott-Lewis v. Abbott Labs., Inc., Civil Action No. 14-cv-13155-IT, 2017 WL 1826627, at *2 (D. Mass. May 5, 2017).

The court turns briefly to the question of which documents are properly before it as it rules on Plaintiff's Motion. Defendant argues that, in assessing the sufficiency of the FAC, the court should rely on factual information in the parties' written discovery responses, including Plaintiff's answers to the defendants' first set of interrogatories, Munson's answers to Plaintiff's first interrogatories, Polidoro's answers to Plaintiff's first interrogatories, and a Sheffield Police

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Department Traffic Enforcement policy. These documents are attached as exhibits to the defendants' opposition to Plaintiff's Motion and relied upon by the defendants in support of their contentions that Plaintiff's proposed amendments to his initial complaint are futile (Dkt. Nos. 39, 39-1 to 39-4). When applying the Rule 12(b)(6) standards governing a motion to dismiss, however, "a court ordinarily may only consider facts alleged in the complaint and exhibits attached thereto, Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993), or else convert the motion into one for summary judgment. Id.; Fed. R. Civ. P. 12(d)." Freeman v. Town of Hudson, 714 F.3d 29, 35-36 (1st Cir. 2013). The narrow exception to this general rule does not encompass answers to interrogatories or documents such as the police department policy submitted by the defendants. See id. at 36 (a court may consider official public records, documents central to a plaintiff's claims, and documents sufficiently referred to in the complaint without converting the motion to dismiss to one for summary judgment). When a motion to amend a complaint "is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show 'substantial and convincing evidence' to justify a belated attempt to amend a complaint." Steir, 383 F.3d at 12 (quoting Resolution Tr. Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994)). The defendants have not moved for summary judgment in the instant case. The defendants' proposal would require the court to accept the parties' written discovery responses at face value before those responses have been tested, clarified by examination, or placed in context at...