Ims v. Town of Portsmouth

• Decision Date: 09 December 2011
• Docket Number: 2009–238–Appeal,Nos. 2009–236–Appeal,2009–237–Appeal,2009–239–Appeal.,s. 2009–236–Appeal
• Parties: Jerry F. IMS v. TOWN OF PORTSMOUTH et al.
• Court: Rhode Island Supreme Court

32 A.3d 914

Jerry F. IMS

v.TOWN OF PORTSMOUTH et al.

Nos. 2009–236–Appeal

2009–237–Appeal

2009–238–Appeal

2009–239–Appeal.

Supreme Court of Rhode Island.

Dec. 9, 2011.

Michael F. Drywa, Jr., Esq., for Plaintiff.

Anthony F. DeMarco, Esq., Providence, for Defendant Town of Portsmouth.

Christopher S. Gontarz, Esq., Middletown, for Defendants Seale & Vierra.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on September 28, 2011, on appeal by the plaintiff, Jerry F. Ims (Ims or plaintiff), from a Superior Court judgment in favor of the defendants, the Town of Portsmouth (town), its then chief of police, Dennis Seale (Chief Seale), and now-retired Lieutenant Manuel Vierra (Lt. Vierra), on all counts in the complaint.¹ The plaintiff, a former Portsmouth police officer, filed an action alleging malicious prosecution, tortious interference with contractual relations, violation of the Rhode Island Whistleblowers' Protection Act (G.L. 1956 chapter 50 of title 28) (Whistleblower claim), and civil conspiracy arising from an investigation into the plaintiff's conduct during an officer training exercise. The trial justice granted judgment as a matter of law in favor of the defendants on the claims for malicious prosecution and tortious interference with contractual relations. The plaintiff contends that this was error; he also assigns error to certain evidentiary rulings at trial. Chief Seale and Lt. Vierra filed a cross-appeal asserting that their counterclaim against Ims alleging defamation should not have been dismissed before trial.² For the reasons set forth below, we affirm in part and vacate in part.

Facts and Travel

The plaintiff served as a Portsmouth police officer from July 6, 1987, until his retirement on February 26, 2004. The plaintiff contends that he was disliked by several of his fellow officers because he refused to provide them with preferential treatment for what he considered to be violations of the law, but instead he reported them for wrongdoing. At trial and in his brief to this Court, plaintiff illustrated several instances in which he reported police officers or relatives of police officers for various violations, including speeding.³ The plaintiff asserts that as a consequence, Chief Seale, Lt. Vierra, and other members of the department engaged in malicious conduct towards him.

The plaintiff alleges that the ill will harbored against him by Chief Seale and Lt. Vierra manifested itself most prominently after an incident during a training exercise for Portsmouth police officers on November 26, 2001. The training exercise centered on the issue of the appropriate use of force during an arrest and involved a role-playing exercise with Ims, Patrolman Scott Travers (Ptlm. Travers), and Patrolman Steve Alfonso acting as police officers—and with Officer William Burns (Officer W. Burns) portraying the perpetrator. It did not go well. After resisting the officers' attempts to “arrest” him, Officer W. Burns began struggling with plaintiff. Patrolman Travers fired several “simunition” rounds ⁴ at Officer W. Burns's back and leg in an effort to apprehend him. While struggling with plaintiff, Officer W. Burns exclaimed that he had been cut. The training exercise ended, and Officer W. Burns, who was bleeding, was taken to the hospital and was treated for a one-centimeter laceration on his head.

The next day, Officer W. Burns spoke with Lt. Vierra about filing assault charges against plaintiff, contending that during the exercise plaintiff intentionally struck him five times with the butt of his firearm. Based on this allegation, Chief Seale immediately ordered Lt. Vierra to commence an investigation into the training incident, and plaintiff was placed on administrative leave with pay and benefits. The plaintiff believed the investigation against him was initiated by Officer W. Burns, Chief Seale, and Lt. Vierra in retaliation for the fact that plaintiff had reported Officer W. Burns's brother, Officer Stephen Burns (Officer S. Burns), for speeding.

Lieutenant Vierra began his investigation by gathering statements from Officer W. Burns and Ptlm. Travers. However, before he obtained plaintiff's account of the incident, Chief Seale directed Lt. Vierra to suspend the internal investigation while the state police conducted a separate inquiry into the incident. The state police investigation eventually culminated in a grand jury proceeding. In January 2002, the grand jury declined to indict plaintiff for assault with a dangerous weapon or simple assault. Thereafter, Lt. Vierra resumed his departmental investigation; he received a statement submitted by plaintiff. Lieutenant Vierra's investigative report, composed of witness statements and his findings, concluded that plaintiff violated the department's use of force policy during the training exercise.

By letter dated January 28, 2002, Chief Seale notified plaintiff that if he wished to return to his position as a police officer he must undergo a psychological examination and, if he refused, he would be suspended without pay for ninety days. The plaintiff declined to undergo the examination and notified the department that he would invoke the provisions of the Law Enforcement Officers' Bill of Rights (LEOBOR) with respect to the proposed discipline. See G.L.1956 § 42–28.6–4. The LEOBOR hearing board ruled that Officer W. Burns's injury resulted from a training accident and that plaintiff was not at fault. The plaintiff was cleared to return to work and did so on August 12, 2002.⁵ He retired in February 2004, and this litigation ensued.

On December 10, 2004, plaintiff, in accordance with G.L.1956 § 45–15–5, notified the Portsmouth Town Council of his forthcoming suit and all anticipated claims therein.⁶ Significantly, this notice consisted of eleven pages of accusations, setting forth in excruciating detail the perceived wrongs allegedly endured by plaintiff. On January 11, 2005, plaintiff filed this action against the town and against Chief Seale and Lt. Vierra individually and in their official capacities, seeking damages for malicious prosecution, tortious interference with contractual relations, civil conspiracy, and violation of the Rhode Island Whistleblowers' Protection Act.

Chief Seale and Lt. Vierra, in their individual capacities, filed a counterclaim alleging defamation arising from plaintiff's December 10, 2004 notice to the Portsmouth Town Council. The plaintiff filed a motion to dismiss under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure on the grounds that the allegations in the notice of claim were privileged, as having been made in connection with a judicial proceeding. On April 4, 2005, the motion justice, finding that plaintiff was statutorily required to provide the town council with notice of his forthcoming suit, granted the motion to dismiss, concluding that an absolute privilege existed with respect to the contents of the notice. The individual defendants appeal the dismissal of their counterclaim, and they contend that the motion justice improperly found that plaintiff's letter was entitled to absolute privilege.

The case was reached for trial in March 2009, at which point the trial justice heard and decided several pretrial motions in limine. The plaintiff sought to introduce the testimony of Officer John Huppee (Officer Huppee) from the LEOBOR hearing because Officer Huppee was in Iraq and unavailable at trial. The trial justice refused to allow the former testimony based on a finding that the issues that were subject to cross-examination at the LEOBOR hearing were not sufficiently similar to the issues at trial. The plaintiff also conceded at the pretrial hearing that the only evidence he intended to introduce to support the Whistleblower claim was the report that he made to Chief Seale about Officer S. Burns speeding.

The plaintiff testified at trial that he was disliked by his fellow police officers. He described several instances in which he reported colleagues for violating the law, and he alleged that his superiors did not pursue his reports. Ims also testified that he believed Officer W. Burns was injured as a result of an accident during the training exercise. On cross-examination, plaintiff testified that he did not know how Officer W. Burns got injured, but that he did not assault him.⁷

Included in his claims for damages, Ims alleged that he lost the opportunity to earn overtime and detail pay while he was on administrative leave. The defendants sought to exclude this testimony based on their contention that plaintiff did not adequately respond to interrogatories relating to the amount of money allegedly lost while on administrative leave. The trial justice agreed and refused to allow this evidence.

With respect to his claim for tortious interference with contractual relations, plaintiff testified that he was employed by the Town of Portsmouth and that there was a collective bargaining agreement (CBA) between the union and the town from which all his employment rights emanated. The plaintiff acknowledged that he did not have a formal contractual relationship with the town apart from the CBA. At the close of plaintiff's case, the trial justice granted judgment as a matter of law on the claim for tortious interference with contractual relations. The trial justice noted that “there is not one piece of physical evidence, documentary evidence, that in any way would suggest that there was a separate contract existing between Mr. Ims and the Town of Portsmouth Police Department.”

Additionally, defendants moved for judgment as a matter of law on the count alleging malicious prosecution, and they argued that malicious prosecution must fail because no criminal proceeding or criminal prosecution was instituted in this case. The defendants argued that plaintiff was not indicted or arrested for a criminal...