Magnett v. Pelletier

• Decision Date: 22 June 1973
• Docket Number: Civ. A. No. 71-229-C.
• Citation: 360 F. Supp. 902
• Parties: Ronald MAGNETT, Plaintiff, v. Joseph PELLETIER, Chief of Police of the City of New Bedford, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

360 F. Supp. 902

Ronald MAGNETT, Plaintiff, v. Joseph PELLETIER, Chief of Police of the City of New Bedford, et al., Defendants.

Civ. A. No. 71-229-C.

United States District Court, D. Massachusetts.

June 22, 1973.

Melvyn H. Zarr, Ernest Winsor, Boston, Mass., for plaintiffs.

Paul F. Markham, Boston, Mass., for defendants.

OPINION

CAFFREY, Chief Judge.

This is a civil action which was tried to the court without a jury on the basis of a complaint, as amended, alleging deprivation under color of state law, of rights, privileges and immunities secured by the Fourteenth Amendment to the United States Constitution. Jurisdiction of this court is invoked on the basis of 28 U.S.C.A. § 1343 on a cause of action arising under 42 U.S.C.A. § 1983. The complaint as filed was brought on behalf of nine individual plaintiffs, three unincorporated associations and one non-profit corporation. The defendants originally named were Joseph Pelletier, Chief of Police of the City of New Bedford, Sergeant Raymond Eugenio, and New Bedford police officers Ronald Sylvia, Donald Couto and Alan Mills. During the pre-trial stages of the case amendments to the pleadings eliminated all plaintiffs other than Ronald Magnett and also eliminated as parties-defendant Sergeant Eugenio and Officers Couto and Mills. Sergeant William Rhodes, Jr. was added as a party-defendant.

As submitted to the court for ultimate decision, the amended complaint contains two separate claims. Mr. Magnett's first claim is that Sergeant Rhodes and Officer Sylvia deprived him of his right to be secure in his home from a warrant-less, unreasonable search and from assault and police intimidation in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. On the basis of this first claim, plaintiff seeks to recover $2500 in actual damages against Sergeant Rhodes and Officer Sylvia, jointly and severally. He also seeks punitive damages in the same amount against each of these defendants.

Plaintiff's second and separate claim is that Chief Pelletier of the New Bedford Police Department has deprived him of his civil rights by the Chief's failure to reopen an administrative investigation into the events which underlie this litigation. Plaintiff seeks an order from this court requiring Chief Pelletier to reopen the Police Department investigation of a written complaint filed by Mr. Magnett with Chief Pelletier on August 3, 1970. Plaintiff also seeks an order from this court directing Chief Pelletier upon the conclusion of that investigation to take appropriate disciplinary action against Sergeant Rhodes and Patrolman Sylvia. Finally, plaintiff requests that the court direct Chief Pelletier to institute measures for the easy and accurate identification of New Bedford police officers.

After trial I find and rule as follows. In July of 1970 in the City of New Bedford, Massachusetts, disturbances approaching riot conditions took place for several days prior to the incident which is the basis of this action. During those several days the following events occurred: buildings and automobiles were set on fire; sniper fire was reported; New Bedford Police officers were stoned from buildings in the section of the city in which the civil disorders occurred; while on duty, members of the police and fire departments were subjected to considerable vilification and harassment and were further subjected to the risk of physical injury because of stones, bottles and other missiles being thrown at them in the darkness. A nine P.M. curfew was imposed and the streets in the troubled section of the city were patroled by police officers wearing rior gear, including helmets and nightsticks.

On the night of July 29, Sergeant Rhodes began his tour of duty at 10 o'clock. His responsibilities included keeping the streets in the troubled area of New Bedford clear for vehicular and pedestrian traffic and watching for snipers. He was in charge of a group of approximately 14 police officers in the area of South First Street. All street lights had been extinguished in the vicinity of South First Street. Sergeant Rhodes testified, and I find, that when he came on duty, fires were burning on Water Street, Blackman Street and on First Street. He lined up his detachment of police officers on the east side of First Street near the building in which plaintiff was babysitting. Sergeant Rhodes spaced his men about four feet apart and directed them to walk north toward Blackman Street where a car was on fire in the middle of the intersection. As the officers walked toward Blackman Street, they were subjected to obscenities and profanities emanating from a group of people on a porch of an apartment house. Sergeant Rhodes shouted a warning to the persons on the porch of number 659 to the general effect that if any additional assaults were made on the police officers by the occupants of that building, arrests would be made. Sergeant Rhodes testified that as they were passing the building the officers were showered with bottles and stones which came from the general direction of the building at number 659 South First Street. He stated that the detachment proceeded along South First beyond number 659 to the scene of the automobile fire where it was learned that the fire had been brought under control by the Fire Department. The officers returned down South First Street, remaining on the south side of the street. He stated that as they neared number 659 they were again subjected to assaults by flying projectiles and verbal abuse. Sergeant Rhodes ordered two members of the detachment to accompany him into the house at number 659 South First Street. Officers Sylvia and Carr entered that building with Sergeant Rhodes. Sergeant Rhodes testified and I find that the police officers heard the sound of feet running up the stairs as they entered the three-story wooden frame multi-tenement house. The police found no exit in the hall of the first floor and so proceeded to the second floor from which point plaintiff Magnett was observed at the top of the stairs leading from the second to the third floors.

The evidence as to what transpired from this point forward is sharply contradictory. Plaintiff, a black construction laborer with a 10th grade education, testified that he had resided in New Bedford for 18 years, that he was on the date of this incident the father of four children aged 10, 9, 7 and 4, that he had been married for five years and separated from his wife for 2½ years, that the children lived with their mother at an apartment at 659 South First Street, New Bedford, and that just before midnight on July 29, 1970, he was present in his wife's apartment in which the four children were sleeping. His wife was visiting her mother in another apartment in the building at the time of this incident. Magnett testified that he heard a commotion, heard voices and steps which sounded as if they were coming from the second to the third floor of the building; that he put on a light in the hall; and that he opened the door of his wife's apartment whereupon he saw Sergeant Rhodes. He testified that he told the Sergeant that he did not wish him to enter the apartment as it contained only the four sleeping children. According to Magnett, the Sergeant responded to him, "You are a wise black S.O.B.," and raised a nightstick, and pushed plaintiff into the apartment, knocking him into a chair about eight feet from the door. He testified that three other police officers entered the apartment after the Sergeant, held him in the chair and told him to "shut his goddam mouth" each time he attempted to protest. He further testified that he was held by one officer on either side of the chair; that each of the officers held him by an arm and shoulder; that Rhodes swung a nightstick at him but did not actually touch him with the stick. He further testified that Patrolman Sylvia entered the bedroom in which the four children were sleeping and in so doing woke up his (Magnett's) daughter Lisa, whereupon Sylvia left the bedroom and informed the other police that there...