Damon v. Hukowicz

• Decision Date: 09 August 2013
• Docket Number: Civil Action No. 11–30203–KPN.
• Citation: 964 F.Supp.2d 120
• Parties: Eli DAMON, Plaintiff v. Dennis HUKOWICZ, individually and as chief of the Hadley Police Department, Town of Hadley Police Department, Mitchell Kuc, and Michael Mason, Defendants.
• Court: U.S. District Court — District of Massachusetts

964 F.Supp.2d 120

Eli DAMON, Plaintiff

v.Dennis HUKOWICZ, individually and as chief of the Hadley Police Department, Town of Hadley Police Department, Mitchell Kuc, and Michael Mason, Defendants.

Civil Action No. 11–30203–KPN.

United States District Court,

D. Massachusetts.

Aug. 9, 2013.

Andrew M. Fischer, Jason & Fischer, Boston, MA.

Carole Sakowski Lynch, Morrison Mahoney LLP, Springfield, MA, Andrew J. Gambaccini, Reardon, Joyce & Akerson, P.C., Worcester, MA, for Defendants.

MEMORANDUM AND ORDER WITH REGARD TO CROSS–MOTIONS FOR SUMMARY JUDGMENT (Document Nos. 48 and 57)

NEIMAN, United States Magistrate Judge.

Eli Damon (“Plaintiff”) brought this action asserting certain common law and civil rights claims and seeking a permanent injunction against the Town of Hadley Police Department and certain Hadley police officers (“Defendants”), Dennis Hukowicz (Chief of the Hadley Police Department), Mitchell Kuc (a Hadley police officer), and Michael Mason (a sergeant in the department). Plaintiff sued each officer in both their individual and official capacities. Plaintiff's claims stem from multiple encounters with the Hadley police in connection with his riding a bicycle in the center of the right-hand lane of a state highway, resulting in three traffic stops, the confiscation of both his bicycle and a camera on his helmet, and the pursuit of criminal charges against him.

Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the jurisdiction of this court. Presently, both Plaintiff and Defendants seek summary judgment on all of Plaintiff's claims. For the reasons that follow, the court will allow Defendants' motion for summary judgment in part and deny it in part and, in turn, deny Plaintiff's motion for summary judgment. As a result of these rulings, certain claims against Mitchell Kuc in his individual capacity will survive: malicious prosecution, conversion, unreasonable seizure, and violation of the Massachusetts Civil Rights Act. In addition, one claim against Michael Mason in his individual capacity will survive: violation of the Massachusetts Civil Rights Act.

The parties have also filed motions to strike certain parts of the opposing side's statement of facts. The court will deny Plaintiff's motion to strike and allow Defendants' motion to strike but in part only.

I. Standard of Review

When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is “material” when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review.” Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir.2006).

II. Background

The court notes as an initial matter that each side has responded to almost every paragraph of the other side's statement of undisputed facts by informally seeking to “strike” certain information as mischaracterizations of deposition testimony, as irrelevant and/or prejudicial, as constituting improper legal arguments or conclusions, and/or as failing to cite the record. The court will not delve into the minutiae of these arguments but will instead refer below only to those that deserve highlighting. The parties have also filed separate, formal motions to strike certain statements and exhibits referenced in the other party's undisputed facts. The court will address below the arguments raised in these separate motions.

A. Facts Not in Dispute

The parties do not dispute the following facts. At all times relevant to this action, Plaintiff resided in Amherst, Massachusetts. (Concise Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment (“Defs' SOF”) ¶ 1.) He does not own an automobile but, instead, chooses to travel by bicycle. ( Id. ¶ 6.) State Highway Route 9 in Hadley is one of the roads on which Plaintiff regularly rode his bicycle. ( Id. ¶ 7.) Consistent with his view that bicyclists have the right to use public roads in the same manner as motorists, Plaintiff, since the Summer of 2005, often rode in the center of the travel lane. ( Id. ¶ 8, 10; Plaintiff's Response to Defendants' Concise Statement of Undisputed Material Facts (“Pl's SOF”) ¶ 10.) He also believes that this practice is often safer than riding closer to the shoulder of the road because motorists approaching from behind will notice him earlier, “perceive [him] as relevant and be able to react earlier if [he is] in a prominent position.” (Defs' SOF ¶ 14; Exhibit A (attached to Defs' SOF) at 100.) Thus, if there was more than one lane in the same direction, Plaintiff “almost always” rode in the center of one of the lanes, usually in the right lane.¹ (Exhibit A (attached to Defs' SOF) at 71–72.)

Plaintiff had a number of confrontations with motorists while riding in this manner on Route 9. For example, on March 30, 2007, Plaintiff was riding in the middle of the right lane for approximately one mile when Eric Perkins, driving a pickup truck, “came up behind [him] and laid on his horn for a pretty long time, and finally went around [him] and pulled into the Domino's parking lot.” (Defs' SOF ¶ 19–20; Exhibit A (attached to Defs' SOF) at 108.) Plaintiff never moved from the middle of the right lane while Perkins was behind him. (Defs' SOF ¶ 21.) Plaintiff, however, followed Perkins into the parking lot where, he claims, Perkins threw him to the ground on top of his bicycle.² (Exhibit A (attached to Defs' SOF) at 108–109.) Hadley police officer Adam Bartlett was dispatched to the scene and later informed Plaintiff that he did not have enough information to charge Perkins with a crime. (Defs' SOF ¶ 23; Exhibit AA (attached to Defendants' Responses to Plaintiff's Statement of Facts (“Defs' Response”) ¶ 3.)

Approximately one month later, Plaintiff made a complaint to the Hadley Police Department about being harassed by a school bus driver who attempted to pass him on Route 9 when there was insufficient room on the road. (Defs' SOF ¶ 25.) Plaintiff again met with officer Bartlett who, according to Plaintiff, “kept repeating back [Plaintiff's] story to [him] incorrectly and then, when [Plaintiff] corrected him, accused [Plaintiff] of being inconsistent.” (Exhibit F (attached to Defs' SOF) at 264.) Bartlett claims that he explained to Plaintiff that “it sounded ... as though the bus driver was trying to help him [by yelling at Plaintiff to get out of the road] so that he would not get hurt.” (Exhibit AA (attached to Defs' Response) ¶ 4.) Bartlett claims he “said [to Plaintiff] that if someone told him to get out of the road, they were not threatening him because he did not have the right to ride in the middle of a lane during rush hour when he was impeding traffic.” ( Id.)

Plaintiff was also pulled over by Hadley police on several occasions for riding his bicycle in this manner on Route 9. For example, on August 22, 2009, Plaintiff was riding down the middle of the right lane traveling west at approximately fifteen miles per hour in a thirty-five mile per hour zone; the traffic was “light to medium,” and cars behind him had to wait until the left lane opened up to pass him. (Defs' SOF ¶¶ 26, 27; Exhibit G (attached to Defs' SOF) at 103–104.) At the time, Hadley police officer Mitchell Kuc was inside a parked police cruiser in a driveway off the main road. ( Id.) As Plaintiff passed, he heard Kuc shout through a loudspeaker to “get out of the middle of the road.” ( Id.) After hearing this, Plaintiff did not move but instead continued riding in the center of the right lane. ( Id. ¶ 28.) Kuc then pulled Plaintiff over and, according to Plaintiff, told him that it was illegal to ride a bicycle on a state highway and that he was obstructing traffic. ( Id. ¶ 29; Exhibit A (attached to Defs' SOF) at 126–127.) According to Kuc, he stated that Plaintiff was riding on a busy state road, where vehicles travel at a high rate of speed and where there had been several accidents, and that he was concerned for Plaintiff's safety. (Exhibit G (attached to Defs' SOF) at 116.) Kuc also stated at the time that if he saw Plaintiff in the middle of the road again, he could be arrested. (Exhibit A (attached to Defs' SOF) at 127, 132, 135; Exhibit G (attached to Defs' SOF) at 117.) Plaintiff responded by stating that it was not illegal to ride his bicycle in the middle of the lane and that it was actually safer to do so. (Defs' SOF ¶ 31; Exhibit A (attached to Defs' SOF) at 135; Exhibit G (attached to Defs' SOF) at 117.) Kuc then walked to his cruiser, brought back a statute book, and showed Plaintiff a statute that Kuc claimed required Plaintiff to move to the right to facilitate overtaking by other vehicles. (Defs' SOF ¶ 31.) Thereafter, Kuc let Plaintiff go without giving him a written warning. ( Id. ¶ 32.)

Plaintiff had another encounter with Kuc on September 12, 2009. ( Id. ¶ 40.) Plaintiff was riding in approximately the same vicinity as he had been on August 22, 2009, at approximately the same speed, when he was again pulled over by Kuc. ( Id. ¶ 40–41.) The two had an exchange similar to that which occurred on August 22. ( Id. ¶ 41; Exhibit A (attached to Defs'...