Fontanez v. City of Worcester
| Decision Date | 29 June 2012 |
| Docket Number | Civil Action No. 09-40203-FDS |
| Parties | TANIKA FONTANEZ, JARMIL THARPE, and KAAMIL JENKINS, Plaintiffs, v. CITY OF WORCESTER, GARY J. GEMME, Chief of Police, Worcester, Massachusetts, in his official and individual capacities; DANIELLE PIRES, in her official and individual capacities; SEAN BAXTER, in his official capacity; and KEVIN KRUSAS, in his official and individual capacities, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This is a civil rights case against several police officers and the City of Worcester arising out of a search of an apartment and three subsequent arrests. The amended complaint asserts claims under 42 U.S.C. § 1983, Mass. Gen. Laws ch. 12, § 11I, and several state-law tort theories.
On January 19, 2007, Danielle Pires, a state police officer, drove to the apartment building of Tanika Fontanez. She then radioed for back-up from other police officers; in her dispatch, she reported that she had been assaulted. Fontanez, Jarmil Tharpe, and Kaamil Jenkins were in the apartment building at the time. After officers providing back-up arrived at thebuilding, Pires and the other officers conducted a warrantless search of the apartment. Fontanez, Tharpe, and Jenkins were arrested and charged with assault and battery on a police officer, and Tharpe and Jenkins were charged with unarmed robbery for an incident that had allegedly occurred earlier in the day. The Commonwealth later dismissed the charges.
Fontanez, Tharpe, and Jenkins have now brought this action against Pires, the other police officers involved, and the City of Worcester, with an amended complaint asserting various constitutional and state-law claims. Defendants have each moved for summary judgment. For the following reasons, defendants' motions will be granted in part and denied in part.
The facts are stated in the light most favorable to plaintiffs unless otherwise noted.
Tanika Fontanez is a resident of Worcester, Massachusetts. Danielle Pires is an officer with the Massachusetts State Police. At the time of the incident, Pires was assigned to the State Police recruitment office. While on that assignment, she did not investigate street-level crime or make arrests. (Pires Dep. at 23:14-17, 25:14-20).
Fontanez and Pires had been acquainted for some time before the incident giving rise to this case. Among other things, Pires's daughter Desire and Fontanez were romantically involved with the same man, Bernard Johnson. Johnson fathered Fontanez's two children. He was later murdered in Desire's presence on August 30, 2007. (Fontanez Dep. at 25:11-23, 53:2-4). Following Johnson's death, Fontanez and Desire exchanged heated messages on MySpace, and eventually Pires began sending messages directly to Fontanez. (Id. at 76:7-78:1).
On January 19, 2007, Pires received a telephone call from her daughter. Desire told her that Jarmil Tharpe, a friend of Fontanez, had approached her car, slapped her, and told her to getout of the car. When she refused, Tharpe and his brother, Kaamil Jenkins, entered the car through the windows and tried to take the keys out of the ignition. (Pires Facts ¶¶ 17-18, Ex. C).1
Pires drove to the area and saw Tharpe and Fontanez walking on Houghton Street. (Tharpe Dep. at 131:14-132:7; Pires Dep. at 54:8-22, 58:15-17). Pires got out of her car and approached Tharpe, yelling "You hit my fucking daughter!" (Fontanez Dep. at 88:10-16). Tharpe and Fontanez did not respond, but walked into the apartment building at 88 Houghton Street where they both lived.2 Pires followed them into the building. (Id. at 92:21-93:5). Pires told Fontanez and Tharpe she would file criminal charges. She asked Fontanez where she lived in the building. Fontanez refused to tell her and told Pires to leave the building. (Id. at 168:22-169:14-18).
Pires left the building and placed a hamper inside the door to prevent it from closing and locking. (Id. at 96:9-13). Around this time, Jenkins approached the building. Pires asked Jenkins what street they were on. He did not respond and joined Fontanez and Tharpe in the apartment.3 Pires then called the Massachusetts State Police. (See Pires Facts ¶ 28).
Trooper George Driscoll of the Massachusetts State Police arrived approximately 20 to 30 minutes later, followed shortly by Officer Kevin Krusas of the Worcester Police Department. (Pl. Resp. Pires Facts ¶ 105; Krusas Dep. at 7:11-20, 38:2-5, 92:1-3).4 Officer Krusas spoke withPires and she told him that she had been assaulted by people who were in the building. (Krusas Dep. at 9:2-11).
Shortly thereafter, Sergeant Matthew D'Andrea of the Worcester Police arrived and took charge of the scene. (Pires Dep. at 111:1-12; Krusas Dep. at 10:4-11:22).5 He ordered Officer Krusas to take a position in the back of the building and watch the back door. (Krusas Dep. at 10:4-11:22). At this point, there were about ten police officers at the scene. ( . Pires followed approximately five officers into the building. (Pires Facts ¶ 42). The police officers kicked in the door to Fontanez's apartment and entered, followed by Pires. (Driscoll Internal Aff. Test., at 8:1-7).6 Officer Krusas was let in through the back door of the apartment by the other officers. (Pires Facts ¶¶ 44-45, Ex. E).
The officers conducted a search of the apartment. They did not have a search warrant. During the search, Pires went through a photo album; she also removed photographs of Johnson from another album that she found in a cabinet. .7 As the officers were finishing their initial search of the apartment, Trooper Driscoll called for a K-9 unit to conduct a further search. (Pires Dep. at 127:11-12). After the search, Officer Krusas interviewed Desire and her friend about the incident with Tharpe and Jenkins. (Pires Facts ¶ 51). While the interview was taking place, Pires left the scene to look forFontanez, Tharpe, and Jenkins. (Id.; Baxter Facts ¶ 25; Pires Dep. at 164:20-165:3).
Lieutenant Sean Baxter of the Massachusetts State Police arrived at the scene after hearing Trooper Driscoll's call for a K-9 unit and other radio transmissions related to the incident. (Baxter Facts ¶¶ 18-19).8 When he arrived, Officer Krusas told him that "he was handling everything," that they had cleared the apartment, and that this would be a Worcester Police Department investigation. (Id. ¶ 26). Lt. Baxter called Pires and told her to return to the scene. (Id. ¶ 29). When she arrived, she told Lt. Baxter what had happened and gave him photographs of Tharpe and Jenkins. (Pires Facts ¶ 62; Pl. Ex. I). After the K-9 unit arrived, Lt. Baxter conducted another search of the apartment. (Baxter Facts ¶¶ 31-32).9
After searching the apartment, Lt. Baxter went to the house of the mother of Jenkins and Tharpe. He asked her to identify her sons from the photographs he had obtained from Pires. (Id. ¶ 38). He strongly suggested that it would be best for her sons to turn themselves in, and said the police would "turn the city upside down" to find them. (Id.). Lt. Baxter then returned to 88 Houghton Street. He saw that the light was on and entered the apartment to investigate. (Pl. Resp. Baxter Facts ¶ 39, Ex. U at 213:22-24).
When Fontanez returned to the apartment, she saw that some of her personal property was damaged or destroyed and that several items in the apartment were missing. (See Fontanez Dep. at 117:1-14, 168:7-21). Specifically, she testified that several items were thrown in the toilet and that photographs were ripped in half. (Id. at 117:9-16, 168:8-12). She also testified that photoalbums and an iPod portable media player were missing from the apartment. (Id. at 168:15-21).
Fontanez, Tharpe, and Jenkins were later charged with assault and battery on a police officer based on Pires's allegations of the events that occurred at 88 Houghton Street.10 Jenkins and Tharpe were also charged with unarmed robbery for the incident involving Desire Pires.11 Fontanez and Tharpe presented themselves to the Worcester Police Department when they learned that the Massachusetts State Police were looking for them. (Id. ¶ 28, Ex. 3). The assault and battery on a police officer charged against Tharpe was amended to assault and battery and he pleaded guilty. (Krusas Facts ¶¶ 26, 31). After an investigation, the Commonwealth dismissed all of the remaining charges.
The amended complaint alleges (1) claims against the officers and the City of Worcester under 42 U.S.C. § 1983, asserting violations of (a) the Fourth and Fourteenth Amendment protections against unreasonable search and seizure without probable cause and excessive force and (b) the Fourteenth Amendment protections against deprivation of property and liberty without due process of law; (2) claims against the officers and the Worcester chief of police under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I; and (3) claims against Pires and other officers for assault, conversion, malicious prosecution, abuse of process, and intentional infliction of emotional distress.
On October 15, 2010, the Court dismissed certain claims brought against defendant Piresfor failure to state a claim upon which relief could be granted. Following the summary judgment motion hearing, the Court dismissed all claims brought against defendant Baxter in his official capacity, all claims against defendant Deborah Simon, the claims against the Doe defendants, the claims of plaintiffs Fontanez and Tharpe against defendant Krusas for malicious prosecution and abuse of process, the federal and state constitutional claims against defendant Gary Gemme, the federal constitutional claims against the City of Worcester, and the assault and intentional infliction of emotional distress claims.
The remaining claims are as follows: Counts 5 and 6, alleging...
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