Lund v. Henderson
| Decision Date | 27 May 2014 |
| Docket Number | Civil Action No. 11–11413–NMG. |
| Citation | 22 F.Supp.3d 94 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | Joseph LUND, Plaintiff, v. Daniel HENDERSON, John Walcek, Thomas Joyce, in his capacity as Chief of the Wareham Police Department, The Town of Wareham, Defendants. |
Richard K. Latimer, Falmouth, MA, for Plaintiff.
Jeremy I. Silverfine, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Defendants.
ORDER ON REPORT AND RECOMMENDATIONS
After consideration of plaintiff's objection thereto (Docket No. 90), Report and Recommendation is accepted and adopted.
On August 8, 2011, plaintiff Joseph Lund (“Lund”) filed a nine-count complaint against defendants Daniel Henderson (“Henderson”), John Walcek (“Walcek”), Thomas Joyce, in his capacity as Chief of Police of the Wareham Police Department (“Joyce”), and the Town of Wareham (“Wareham”) arising out of the events that transpired on August 22, 2008. The claims alleged by the plaintiff include false arrest and false imprisonment (Count I); assault and battery (Count II); intentional infliction of emotional distress (Count III); violation of 42 U.S.C. § 1983 (Count IV); violation of civil rights under the Massachusetts Civil Rights Act, Mass. Gen. L. c. 12 § 11I (Count V); malicious prosecution (Count VI); abuse of process (Count VII); negligent supervision—municipal defendants (Count VIII); and violation of civil rights—municipal defendants (Count IX).
Approximately two years after the institution of this action, on September 9, 2013, the defendants filed a motion for summary judgment (# 62) accompanied by a memorandum of law in support (# 63), a concise statement of undisputed material facts with attached exhibits (# 64) and an affidavit of counsel (# 65). In due course the plaintiff filed an opposition to the motion for summary judgment (# 661 ), a concise statement of material facts in dispute (# 68), a memorandum of law (# 70), an affidavit of the plaintiff (# 69), an affidavit of counsel (# 71) and fifty-five exhibits (# 72). A reply brief (# 74) was filed by the defendants on October 15, 2013. After the dispositive motion was referred to the undersigned for the issuance of a report and recommendation as to disposition (# 79), oral argument was heard on April 15, 2014. Three days later, on April 18, 2014, the plaintiff submitted a supplemental memorandum. (# 87) At this juncture, the summary judgment motion stands ready for resolution.
The following facts are gleaned from the defendants' statement of undisputed facts and the plaintiff's concise statement of material facts in dispute.2 It shall be noted when a dispute of fact exists.
On August 22, 2008, Lund was in Dudley Square in Onset, Massachusetts, when he observed an unidentified man and woman yelling at each other across the street in front of the Onset Village Market. (# 64 ¶ 1) The pair got into a car and left the scene. (# 64 ¶ 1) There was also a group of teenagers congregated in the area in front of the market. (# 64 ¶ 2; # 72).
Around 6:00 PM on August 22, 2008, a call was made to the Wareham Police Department about a disturbance at the Onset Village Market that appeared to be escalating. (# 72) Two police officers arrived on foot at the market, and one of those officers, Officer Lalli (“Lalli”), began speaking with Danny DeBarros (“DeBarros”), one of the teenagers in the group. (# 64 ¶¶ 3, 4; # 72) DeBarros yelled at Lalli and began to back away and flail his arms. (# 64 ¶ 5; # 72) Because DeBarros' yelling and swearing behavior “was observed by numerous motorists and pedestrians,” Lalli decided to arrest DeBarros. (# 72) When Lalli attempted to handcuff DeBarros, he actively resisted. (# 72) The second officer, defendant Henderson, was moving in to assist Lalli when another teenager in the group, Dominic Alves, whose hand was in a cast, hit Lalli in the chest with the cast. (# 64 ¶ 6) At that point Henderson tased Dominic Alves. (# 64 ¶ 7)
While Lalli continued to struggle with DeBarros with the assistance of Officer Leblanc (“Leblanc”), another Wareham police officer who had arrived at the scene, another teenager approached the officers demanding a cell phone from DeBarros. (# 72) This teenager was warned several times that she needed to back away or she would be arrested, but the teen continued loudly to yell her demands. (# 72) After a final warning that was ignored, she was arrested. (# 72).
After Dominic Alves was tased, his brother, Terrell Alves, rushed at Henderson, yelling and screaming; Henderson pulled out his pepper spray and ordered Terrell Alves to back off. (# 64 ¶¶ 8, 9) Terrell Alves retreated and began running around the square continuing to yell and scream in an attempt to incite the crowd. (# 64 ¶ 10) At this juncture, the scene was chaotic with the crowd being unruly. (# 64 ¶ 11) Lund was a witness to, not a participant in, this activity. (# 70 at 1).
As these events unfolded, the crowd continued to grow with some members of the crowd becoming disorderly and confrontational in their objections to the arrests being made. (# 72) The entire on-duty patrol shift and detective units of the Wareham Police responded as back-up to Onset Village, and mutual aid was requested from Bourne and the State Police to assist in restoring order. (# 72).
According to defendant Walcek, the melee at this point had grown to encompass Dudley Square, the park where the plaintiff was located. (# 64 ¶ 12) The plaintiff disputes this contention. (# 70 at 1) In his complaint Lund alleges that Terrell Alves came across the street and confronted him in the park. (# 1 ¶ 7; # 64 ¶ 13) Initially the plaintiff testified at his deposition that Terrell Alves did not say anything to him, but he later stated that Terrell Alves was waving his hands and yelling at him. (# 64 ¶ 14) According to Lund, he told Terrell Alves that his brother had been tased because he had assaulted a police officer. (# 64 ¶ 15) When speaking to Terrell Alves, the plaintiff had to raise his voice to be heard over the surrounding din, but he “wasn't yelling as much as [Terrell Alves] was yelling.” (# 64 ¶ 15) At his deposition Lund admitted that he was “angry at the police” and “that's what [he] was complaining about.” (# 64 ¶ 17) The plaintiff acknowledged that police are a trigger for his anger issues. (# 64 ¶ 17).
John Bullard, a witness who was with Lund in Dudley Square as the events of August 22, 2008 unfolded, testified at his deposition that the plaintiff was yelling at the police officers about their conduct. (# 64 ¶ 16) Lund disputes this statement.
(# 70 at 13 ) Bullard further testified that the police officers ordered everyone to disperse, so he left but Lund stayed and continued to yell. (# 64 ¶ 18) The plaintiff disputes this statement. (# 70 at 14 ) Bullard also asserted that a police officer advised Lund that if he did not leave, he would be arrested, but the plaintiff did not leave. (# 64 ¶ 19) Lund disputes this statement. (# 70 at 15 ).
In his complaint the plaintiff alleged that “[w]ithout any reason ... defendant Henderson suddenly grabbed the plaintiff from behind and handcuffed the plaintiff.” (# 1 ¶ 8; # 64 ¶ 20) Lund acknowledged that after he was placed in cuffs, he “probably swore” at Henderson. (# 64 ¶ 21) The plaintiff testified that, after putting him in cuffs, Henderson “dragged” him by the cuffs to the police cruiser, hit him on the head, pushed him down into the cruiser and shut the door. (# 64 ¶ 22) The handcuffs caused pain to his right wrist, and Lund complained about the injury to several officers on the night of the incident about it. (# 64 ¶ 23) On August 23, 2008, Lund sought medical treatment after speaking with an attorney (# 64 ¶ 38); the plaintiff disputes this fact, although he testified in his deposition that he “sought medical (sic) that day [August 23, 2008] after talking to Attorney Edward Wells.” (# 64–1 at 90).
The following facts are disputed: The plaintiff testified that Walcek was the arresting officer but that he, Lund, never saw Walcek that day and he had no interaction with him. (# 64 ¶ 24) Walcek claims that he was, in fact, the arresting officer. (# 64 ¶ 25) According to Walcek, when interacting with Terrell Alves, Lund was using aggressive mannerisms, waving his arms and yelling.6 (# 64 ¶ 26) In Walcek's view, this interaction was inciting people in a very fluid situation and was causing a bigger problem. (# 64 ¶ 26) Walcek feared that a riot could break out.7 (# 64 ¶ 26) Walcek testified that he was the police officer who handcuffed Lund and walked him across the street.8 (# 64 ¶ 27) Walcek further testified that the plaintiff protested his arrest and initially refused to be put in the police cruiser. (# 64 ¶ 28) In his deposition, Henderson testified that he heard the plaintiff and Terrell Alves arguing, but he did not remember either of them getting arrested because he was engaged in removing the taser probes from Dominic Alves. (# 64 ¶ 29).
None of the reporting officers stated that, prior to his arrest, Lund had in any way interfered with their law enforcement activities. (# 72, # 72–1, # 72–2) No police officer reported having heard the plaintiff utter any specific words to incite others to riot or to indicate his participation in the events that transpired in front of the Village Market. (# 72, # 72–1, # 72–2) Walcek did not see Lund attempt to assault anyone before he was arrested. (# 72–3 at 56) Other individuals who were arrested in Onset Village that evening had actively interfered with the responding police officers, but had been given warnings to disperse before they were arrested. (# 72, # 72–1, # 72–2) Walcek testified that he acted as he did:
Because I had dealt with Mr. Lund in the past. I was aware of his record. I was aware of his involvement with incidents that were violent...
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