Echavarria v. Roach

• Decision Date: 30 September 2021
• Docket Number: Civil Action No. 16-cv-11118-ADB
• Citation: Echavarria v. Roach, 565 F.Supp.3d 51 (D. Mass. 2021)
• Parties: Angel ECHAVARRIA, Plaintiff, v. J. Michael ROACH et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

565 F.Supp.3d 51

Angel ECHAVARRIA, Plaintiff,

v.J. Michael ROACH et al., Defendants.

Civil Action No. 16-cv-11118-ADB

United States District Court, D. Massachusetts.

Signed September 30, 2021

Anand Swaminathan, Pro Hac Vice, Arthur Loevy, Pro Hac Vice, Debra Loevy, Pro Hac Vice, Gayle Horn, Pro Hac Vice, Jonathan Loevy, Pro Hac Vice, Mark Loevy Reyes, Pro Hac Vice, Renee Spence, Pro Hac Vice, Steven Art, Pro Hac Vice, Tara Elizabeth Thompson, Pro Hac Vice, Loevy & Loevy, Chicago, IL, for Plaintiff.

Michael J. Akerson, Reardon, Joyce & Akerson PC, Worcester, MA, for DefendantsJ. Michael Roach, Raymond Guillermo, Jospeh Rowe, Russell Gokas, Charles Luise, John Scannell.

Joseph G. Donnellan, Rogal & Donnellan, P.C., Norwood, MA, for DefendantJohn Garvin.

Brian J. Rogal, Rogal & Donnellan, P.C, Norwood, MA, for DefendantsNorman Zuk, Andrew Zuk, Personal Representative of the Estate of Norman Zuk.

Joseph P. Kittredge, Lorena Galvez, Rafanelli & Kittredge, P.C., Acton, MA, for DefendantMichael Cooney.

John R. Hitt, Drohan, Hitt & Hadas, LLC, Thomas R. Kiley, Cosgrove, Eisenberg & Kiley, PC, Boston, MA, for Defendants John Hollow, City of Lynn.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

BURROUGHS, D.J.

PlaintiffAngel Echavarria("Plaintiff") brings this case pursuant to 42 U.S.C. § 1983,Mass. Gen. Laws ch. 12, § 11I, and Massachusetts state common law, alleging that Defendants—the City of Lynn(the "City"), former officers of the City of Lynn Police Department, and former officers of the Massachusetts State Police(the "MSP")—violated his civil rights by engaging in unlawful conduct during the investigation that led to his now-vacated conviction for first-degree murder.Currently pending before the Court are six motions for summary judgment filed by the City; John Hollow; Russell Gokas, Raymond Guillermo, Charles Luise, J. Michael Roach, Joseph Rowe, and John Scannell(collectively, the "Lynn Police Officers"); John Garvin; Michael Cooney; and Norman Zuk. [ECF Nos. 276 (City), 277 (Hollow), 279 (Lynn Police Officers), 280 (Garvin), 290 (Cooney), 292 (Zuk)].For the reasons set forth below, Zuk's, Cooney's, Rowe's, Luise's, Scannell's, and Gokas's motions for summary judgment are GRANTED.Hollow's, Garvin's, Roach's, Guillermo's, and the City's motions are GRANTED in part and DENIED in part.

I.BACKGROUND

A.Defendants’ Objections

Defendants have filed "Rule 56(c)(2) Objections" objecting to or, in the alternative, moving to strike portions of Plaintiff's statement of facts as well as exhibits submitted in support of his opposition to summary judgment.[ECF No. 332].Plaintiff did not respond to these objections.Federal Rule of Civil Procedure 56(c)(2) allows a party to object to material cited in support of a disputed fact if that material "cannot be presented in a form that would be admissible in evidence."Fed. R. Civ. P. 56(c)(2).Because the objections affect the factual record to be considered when ruling on the summary judgment motions, the Court addresses them first.

The parties’ statements of material facts are "useful devices for focusing a district court's attention on what is—and what is not—genuinely controverted."Calvi v. Knox Cnty., 470 F.3d 422, 427(1st Cir.2006)."But unless the statement is admitted, the court is required to evaluate the facts by reference to the record."Inman v. Siciliano, No. 10-cv-10202, 2012 WL 1980408, at *5(D. Mass.May 31, 2012).

1.Argumentative, Conclusory, and/or Opinion

Defendants object to dozens of the paragraphs and headings in Plaintiff's statement of facts as argumentative, conclusory, or based on opinion.[ECF No. 332at 3–4].When ruling on a motion for summary judgment, the Court"safely may ignore ‘conclusory allegations, improbable inferences, and unsupported speculation.’ "Cochran v. Quest Software, Inc., 328 F.3d 1, 6(1st Cir.2003)(quotingMedina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8(1st Cir.1990) ).Though the Court does not agree that every paragraph identified by Defendants is properly characterized in this way, to the extent Plaintiff's statements are speculative, conclusory, or argumentative, they have not been relied upon in deciding the motions for summary judgment.And, as noted above, because these portions of the statement of facts are disputed, the Court will look to the evidentiary support and make its conclusions from the record, drawing all inferences in the non-moving party's favor.

2.Statements Not Supported by Citation

Defendants again object to dozens of paragraphs and all of the headings in Plaintiff's statement of facts because Plaintiff: (1) cites to evidence that does not actually support the alleged fact; (2) does not cite to anything at all; (3) cites to an exhibit not before the Court; or (4) does not cite to a specific page number in a multi-page exhibit.[ECF No. 332at 3–4, 6–7].At the summary judgment stage, unsupported allegations need not be credited and the Court has not relied on any purported facts that are not supported by materials in the record when ruling on the pending motions.SeeCochran, 328 F.3d at 6.Any heading that does not contain a citation to the record will not be afforded any evidentiary weight.Amoah v. McKinney, 14-cv-40181, 2016 WL 6134119, at *10, 2016 U.S. Dist. LEXIS 191864, at *31(D. Mass.Sept. 2, 2016).Finally, the Court cannot rely on exhibits that are not before it, so to the extent portions of Plaintiff's statement of facts are supported only by material that is not in the record, those factual allegations are unsupported and the Court has not relied on them.

3.Inadmissible Hearsay

Defendants move to strike various paragraphs or portions of paragraphs because they are either inadmissible hearsay or rely exclusively on inadmissible hearsay.[ECF No. 332at 4–5].While it is true that "hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted[,]"Evergreen Partnering Grp., Inc. v. Pactiv Corp., 832 F.3d 1, 12(1st Cir.2016)(internal quotation marks and citations omitted), Defendants largely do not explain how the paragraphs they have moved to strike rely on only inadmissible hearsay.For example, in objecting to paragraph 129, Defendants state only that "[t]o the extent Plaintiff relies upon Exhibit 165 it is an inadmissible hearsay statement."[ECF No. 329 ¶ 29].Absent any analysis, the Court cannot make a well-reasoned determination about what portion of Plaintiff's statement of facts should be stricken as inadmissible hearsay or whether the evidence could nonetheless be properly introduced at trial.Cf.Int'l Shipping Agency, Inc. v. Union de Trabajadores de Muelles Loc. 1740, No. 12-cv-01996, 2015 WL 5022794, at *3(D.P.R.Aug. 21, 2015)(rejecting objection based on improper authentication because "[p]ursuant to Rule 56(c)(2), an objection must state that the movant's evidence ‘cannot be presented in a form that would be admissible’ at trial"(quotingFed. R. Civ. P. 56(c)(2) )).Accordingly, the Court will not strike these paragraphs.

4.Statements Not Based on Personal Knowledge

Defendants object to or move to strike the affidavits and reports of Plaintiff's expert witnesses, Dr. Timothy Longo and Dr. Jennifer Dysart, and any paragraphs in Plaintiff's statement of facts that rely on those documents because they are not based on personal knowledge.[ECF No. 332at 5–6, 9]."An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."Fin. Res. Network, Inc. v. Brown & Brown, Inc., 867 F. Supp. 2d 153, 171(D. Mass.2012)(quotingFed. R. Civ. P. 56(c)(4) ).In the case of an expert affidavit, however, "[a]n expert who provides an affidavit with an opinion formed within his area of expertise and based on his own assessment or analysis of the underlying facts or data satisfies the personal knowledge requirement ...."Marine Polymer Techs., Inc. v. HemCon, Inc., No. 06-cv-00100, 2009 WL 801826, at *1(D.N.H.Mar. 24, 2009)("To the extent [defendant] contends that an expert's affidavit must state that it is based on his personal knowledge, that theory is unsupported.");see also4 MVR, LLC v. Warren W. Hill Constr. Co., Inc., No. 12-cv-10674, 2016 WL 4775451, at *7(D. Mass.Sept. 13, 2016)("[T]o the extent an affiant is a qualified expert, her testimony need not be based on personal knowledge."(quotingFraser & Wise, P.C. v. Primarily Primates, Inc., 966 F. Supp. 63, 69(D. Mass.1996) )).

Accordingly, the Court will not strike these expert affidavits or the portions of Plaintiff's statement of facts that rely on them on personal knowledge grounds.

5.Beyond the Scope of the 30(b)(6) Notice

Defendants object to two paragraphs of Plaintiff's statement of facts that cite to portions of a Federal Rule of Civil Procedure 30(b)(6) witness's deposition transcript because the testimony elicited was beyond the scope of the 30(b)(6) notice.[ECF No. 332at 7].The Court does not rely on those portions of the deposition transcript in reaching its ruling, and Defendants’ request to strike or disregard those paragraphs is moot.

6.Non-Material Facts

Defendants ask the Court to strike or disregard portions of Plaintiff's statement of facts that are non-material and therefore irrelevant to the outcome of the suit.[ECF No. 332at 7–8].If a fact is not material, then it cannot be a basis for precluding summary judgment because the purpose of summary judgment is to determine whether disputes of material fact exist.Fed. R. Civ. P. 56(a)(explaining that summary judgment is appropriate where the moving party can show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law").Defendants, however, cite to no support for their statement that "[a]ll non-material facts should be disregarded [or]...