Mackey v. Town of Tewksbury, CIVIL ACTION NO. 15-12173-MBB

• Decision Date: 07 January 2020
• Docket Number: CIVIL ACTION NO. 15-12173-MBB
• Citation: 433 F.Supp.3d 116
• Parties: James F. MACKEY, Jr., Plaintiff, v. TOWN OF TEWKSBURY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

433 F.Supp.3d 116

James F. MACKEY, Jr., Plaintiff,

v.TOWN OF TEWKSBURY, et al., Defendants.

CIVIL ACTION NO. 15-12173-MBB

United States District Court, D. Massachusetts.

Filed January 7, 2020

Benjamin S. Kafka, David B. Mack, Joseph P. Calandrelli, Sean T. Carnathan, Stephanie R. Parker, O'Connor, Carnathan and Mack LLC, Burlington, MA, for Plaintiff.

Jeremy I. Silverfine, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA, Austin M. Joyce, Reardon, Joyce & Akerson, P.C., Worcester, MA, for Defendants.

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 74)

BOWLER, U.S.M.J.

Pending before this court is a motion for summary judgment filed by defendants Town of Tewksbury ("the Town"), the Tewksbury Police Department ("TPD"), Tewksbury Police Chief Timothy Sheehan ("Chief Sheehan"), Officer Michael McLaughlin ("Officer McLaughlin"), Officer Markus McMahon ("Officer McMahon"), Sergeant Brian Warren ("Sergeant Warren"), Detective Patrick Connor ("Detective Connor"), Officer David Duffy ("Officer Duffy"), Officer James Ryser ("Officer Ryser"), Sergeant Daniel Kerber ("Sergeant Kerber"), Officer Eric Hanley ("Officer Hanley"), Detective Patrick Regan ("Detective Regan"), Sergeant Timothy Kelly ("Sergeant Kelly"), Sergeant Chris Coviello ("Sergeant Coviello"), Detective Andrew Richardson ("Detective Richardson"), Officer Albert Piccolo ("Officer Piccolo"), Officer Kimberly O'Keefe ("Officer O'Keefe"), Lieutenant Scott Gaynor ("Lieutenant Gaynor"), Detective Michael Donovan ("Detective Donovan"), Lieutenant Robert Stephens ("Lieutenant Stephens"), Officer James Griffin ("Officer Griffin"), Officer Paul Nicosia ("Officer Nicosia"), Officer David Miano ("Officer Miano"), Sergeant Walter Jop, III ("Sergeant Jop"), Officer James Hollis ("Officer Hollis"), Officer Jason McNamara ("Officer McNamara"), Officer Robert Bjokgren ("Officer Bjokgren"), Officer Robert Field ("Officer Field"), and Officer Alysia Russo ("Officer Russo") (collectively "defendants").¹ Plaintiff James F. Mackey, Jr. ("plaintiff") opposes summary judgment and submits this court should enter partial summary judgment on a civil rights claim brought under 42 U.S.C. § 1983 (" section 1983") against the arresting officers pursuant to Fed. R. Civ. P. 56(f)(1) (" Rule 56(f)(1)"). (Docket Entry ## 74, 79).

Defendants also move to strike an affidavit filed by plaintiff in opposition to the summary judgment motion. (Docket Entry # 82). A separate opinion addresses this motion as well as defendants' motion to strike. After conducting a hearing, this court took the motions (Docket Entry ## 74, 82) under advisement.

PROCEDURAL BACKGROUND

Plaintiff filed this civil rights action seeking damages for an arrest and multiple applications for criminal complaints filed against plaintiff. The complaint sets out the following nine counts: (1) violation of plaintiff's civil rights, specifically his First and Fourth Amendment rights, by defendants in violation of section 1983 (Count I);² (2) supervisory liability against the Town, TDP, and Chief Sheehan under section 1983 (Count II); (3) a Monell claim³ against the Town, TPD, and Chief Sheehan under section 1983 (Count III); (4) false arrest and false imprisonment against "Officer Markus," Officer McMahon and Lieutenant Stephens (Count IV); (5) malicious prosecution against the sub-defendants (Count V); (6) abuse of process against the sub-defendants (Count VI); (7) civil conspiracy against all defendants (Count VII); (8) intentional infliction of emotional distress ("IIED") against all defendants (Count VIII);⁴ and (9) violation of the Massachusetts Civil Rights Act ("MCRA"), Massachusetts General Laws chapter 12, sections 11H and 11I, against all defendants (Count IX). (Docket Entry # 1). Defendants filed an answer raising inter alia a qualified immunity defense. (Docket Entry # 9).

STANDARD OF REVIEW

Summary judgment is designed "to ‘pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.’ " Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992) ). It is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). It is inappropriate "if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

"Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’ " Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (internal citations omitted). The evidence is viewed "in the light most favorable to the non-moving party" and "all reasonable inferences" are drawn in favor of the moving party. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). "Unsupported allegations and speculation" however, "do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment." Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011) ; see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) ("allegations of a merely speculative or conclusory nature are rightly disregarded"). Where, as here, the nonmovant bears the burden of proof at trial, he " ‘must point to facts memorialized by materials of evidentiary quality and reasonable inferences therefrom to forestall the entry of summary judgment.’ " Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014) (internal citation omitted); see Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (as to issues on which nonmovant bears burden of proof, he must " ‘demonstrate that a trier of fact reasonably could find in his favor’ ") (internal citation omitted).

FACTUAL BACKGROUND

1. Hunting Incident and Massachusetts Attorney General's Report

While plaintiff was bow hunting on public property in Tewksbury, Massachusetts on November 6, 2010, two men confronted him and questioned his right to hunt in the area. (Docket Entry # 81-1, Ex. 3). Plaintiff testified that he called 911 after they became threatening and the two men began to beat him when he started dialing the phone. (Docket Entry # 81-5, Ex. 43, pp. 254-59). The altercation continued until a number of Tewksbury police officers arrived. (Docket Entry # 81-5, Ex. 43, p. 258). The officers, Sergeant Thomas Cooke ("Sergeant Cooke") and Officer Lozado, questioned the men but made no arrests. (Docket Entry # 81-1, Ex. 2). Plaintiff was transported to a medical center for treatment whereas the two men "just walked away." (Docket Entry # 81-1, Exs. 2, 3).

Afterwards, plaintiff called the TPD and complained to Lieutenant Stephens about the officers' decision "not to arrest the [alleged] attackers" because one of the attackers "was a cop" and also described being choked and "kicked in the face" by the two attackers. (Docket Entry # 81-1, Ex. 3). In addition, plaintiff "called the State Police on a recorded line and told them" what happened, including Sergeant "Cooke's favoritism." (Docket Entry # 81-1, Ex. 3). Sergeant Cooke's narrative report reflects that an officer of the Massachusetts Environmental Police provided Sergeant Cooke with a written statement by plaintiff dated November 7, 2010. (Docket Entry # 81-2). The statement recounts his conversation with Lieutenant Stephens and with "the State Police" regarding Sergeant Cooke's favoritism and plaintiff's above-noted conversation with Lieutenant Stephens. (Docket Entry # 81-1, Ex. 3). The statement additionally informs the TPD that plaintiff would ask "the State Police and" the Massachusetts Attorney General's Office ("AGO") to investigate the incident and Sergeant Cooke's alleged favoritism. (Docket Entry # 81-1, Ex. 3). As noted, Sergeant Cooke confirms that he received a copy of this statement. (Docket Entry # 81-1, Ex. 2). Sergeant Warren filed an application for a criminal complaint against plaintiff for assault and battery with a dangerous weapon in Lowell District Court along with the narrative report by Sergeant Cooke. (Docket Entry # 81-1, Ex. 2). The prosecution entered a nolle prosequi on September 2, 2011. (Docket Entry # 81-1, Ex. 2). Plaintiff filed a complaint to the AGO on November 4, 2011, which it declined to investigate. (Docket Entry 81-1, Ex. 6).

2. Abuse Prevention Orders

In February 2012, plaintiff filed for divorce from his wife, Lisa Mackey. (Docket Entry # 1, p. 10, ¶ 53). In March 2012, the Middlesex Family and Probate Court ("Probate Court") denied two motions, one filed by Lisa Mackey and the other filed by plaintiff, seeking temporary orders for support and custody of a minor child. (Docket Entry # 81-1, Ex. 7) (Docket Entry # 81, p. 2, ¶ 8). The court noted the absence of "specific, credible grounds" to enter a vacate order and unclear financial issues. (Docket Entry # 81-1, Ex. 7). One of Lisa Mackey's requests was for plaintiff to continue to pay utilities. (Docket Entry # 81-1, Ex. 7). On May 3, 2012, the Lowell District Court issued an abuse prevention order ("the RO") under Massachusetts General Laws chapter 209A ("chapter 209A") against plaintiff. (Docket Entry # 81-1, Ex. 10) (Docket Entry # 76-1). The top of the RO states, in part, that "VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both." (Docket Entry # 81-1, Ex. 10). The RO also states that the order "was issued without advance notice because the Court determined that there is a substantial likelihood of immediate danger of abuse." (Docket Entry # 81-1, Ex. 10). Section A(1) of the RO states, "YOU ARE ORDERED NOT TO ABUSE [Lisa Mackey], by harming, threatening or...