Minor v. City Of Pawtucket .
| Decision Date | 13 April 2010 |
| Docket Number | C.A. No. 08-325 S. |
| Citation | 725 F.Supp.2d 286 |
| Parties | Noelle FARRY, as Administratix of the Estate of Jason Swift, and as Parent and Next Friend of Matthew Swift, a minor, Plaintiff v. CITY OF PAWTUCKET, et al., Defendants. |
| Court | U.S. District Court — District of Rhode Island |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Max Wistow, Esq., Stephen P. Sheehan, Esq., Wistow & Barylick Incorporated, Providence, RI, for Plaintiffs.
Karen K. Corcoran, Esq., Marc DeSisto, Esq., DeSisto Law, Providence, RI, for Defendant.
During the early morning hours of February 12, 2008, a mother's call for help put into motion a series of events that ultimately ended with the death of her son at the hands of those sent to answer her call. Despite the number of officers and witnesses present throughout the ordeal, the facts of the incident (which lasted under ten minutes) are hotly contested. What is known is that Jason Swift (“Jason”), naked and unarmed in his apartment, was shot twice and killed after an altercation with law enforcement officers from the City of Pawtucket (“the City”). The officers who were present have testified in unison that Jason lunged at Officer Wallace Martin, which resulted in Officer Martin firing his revolver; however, Plaintiff offers the testimony of an expert, Dr. Gillespie, who testifies that the officers' account of events is scientifically impossible.
Plaintiff Noelle Farry, in her capacity as Administratix of the Estate of Jason Swift, and as parent and next friend of Matthew Swift, Jason's minor son, filed a Second Amended and Supplemental Complaint against the City (by and through its Finance Director Ronald Wunschel), Lieutenant Michael Newman, Officers Edward Wardyga, Wallace Martin, Anthony Lucchetti, David Dolan, John and Jane Does 1 through 10, all individually and in their representative capacities, alleging constitutional violations, and Monell liability pursuant to 42 U.S.C.1983, and corresponding state law violations. See Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The individual Defendants, with the exception of Officer Martin, all moved for summary judgment on all claims (federal and state) in the complaint based on qualified immunity. In response, and prior to the hearing before the Court, Plaintiff voluntarily dismissed her claims against the John and Jane Does, and the federal claims against Defendants Newman and Wardyga, while vigorously opposing all claims of qualified immunity. Defendant City also moved for summary judgment as to the Monell claim, on the basis that the City provided adequate training and supervision and therefore has no liability as a matter of law. In opposition, Plaintiff argues that because the City conceded (for the purposes of summary judgment) that Martin violated Jason's constitutional rights and because it has admitted that Martin acted in conformance with City policy in its Answer, the City cannot avoid going to trial.
Betty Swift (“Mrs. Swift”) 2 telephoned 9-1-1 requesting assistance to have her son Jason committed to a hospital because he was “out of his mind.” Jason was approximately 6'4? and weighed over 300 lbs. The operator transferred her call to Edward Wardyga, a Pawtucket police officer and the dispatcher on duty. Mrs. Swift informed Wardyga that Jason needed to be taken to the hospital because he was (9-1-1 Tr., Doc. 53-2.) Wardyga told her not to go back to the apartment, and dispatched officers Wallace Martin and Anthony Lucchetti to respond to the scene. Wardyga did not dispatch a supervisor, although Wardyga's supervisor, Lt. Michael Newman, (an officer with over ten years experience) was present at the station at the time the call came in and could have been sent. Newman also heard Wardyga dispatch the officers to the scene. 3 (Doc. 53-9.)
Wardyga informed the officers that Jason was “acting highly 96,” which in police parlance means he was emotionally disturbed. (Doc. 53-2.) Wardyga also informed the officers that that Jason was “destroying the house”, “may have a knife in possession”, and “he is not very friendly with police.” ( Id.)
Once Officers Martin and Lucchetti arrived, Mrs. Swift informed them of Jason's prior mental health history, including the fact that he did not like police officers and may feel threatened by their presence. The officers observed Jason about 30 feet away, as he emerged from the apartment holding a sheathed sword. The officers drew their weapons and ordered Jason to drop the sword. Jason immediately dropped his sword and lifted his shirt turning a full circle to show that he had no other weapons. Mrs. Swift picked up the sword and tossed it over a nearby fence, out of reach.
The first altercation occurred outside the apartment between the officers and Jason. Mrs. Swift testified in deposition that the officers continued to yell commands, including for Jason to go to his knees and/or lie down, which Jason did not do. (Doc. 53-13.) Mrs. Swift also testified that Officer Martin threw himself at Jason, and when Jason tried to move away he struck Martin in the face with his shoulder, knocking Martin's sunglasses off. 4 Id.
Officer Martin and Lucchetti, however, stated that Jason attacked Martin by hitting him with a backhand across his face, ripping his sunglasses off, crumpling them up, and throwing them to the ground. Officer Martin stated that he and his partner stepped back but Jason continued to approach them, so they both responded and tried to restrain him. The officers responded with chemical spray, and struck Jason numerous times with their batons. (Doc. 53-16.) Jason was able to escape and run toward his apartment.
The officers entered the apartment building (which contained several apartments) with their guns drawn, following the trail of chemical spray up the stairs to Mrs. Swift's apartment, which was locked. After hearing yelling and loud noises, and after seeing there was no response to their request that Jason come out, the officers forced entry into the apartment with guns drawn.
In the apartment Jason was alone, unarmed, and completely naked. The officers testify that at one point Jason put his hands up and looked “sincere” and “scared” and “as if he was going to be extremely cooperative.” Indeed, Officer Lucchetti put in a radio call to his fellow officers that backup could proceed to arrive at normal speed (i.e. without the use of sirens and lights). Officer Martin testified that after entry, he instructed Officer Dolan (who had arrived after Jason ran upstairs) to handcuff Jason. The officers testified that Jason resisted, all the while telling the officers that he loved them. Officer Martin, in his statement to the police, indicated that Jason then put Lucchetti in a headlock. Martin stated that Lucchetti began changing colors, so he proceeded to hit Jason in the head with his baton. Lucchetti states that Jason had grabbed his shirt but did not get his throat, when Officer Martin started to hit Jason with the baton. At some point Jason grabbed Martin, who escaped by slipping out of the jacket he was wearing. After a few minutes, Jason ended up on his knees, sweaty, and bloodied by the officers' blows.
Approximately a minute after Lucchetti's radio call, Officer David Kelley 5 arrived at the scene, immediately making a second radio call requesting immediate rescue. The officers testified in unison that Jason then stood up, outstretched his arms, and lunged at Martin. Officer Martin shot Jason twice, killing him.
To contest this version of Jason's ultimate demise, Plaintiff offers the deposition testimony of her medical expert, Dr. Peter Gillespie. The relevant testimony follows:
Q. Doctor, I would ask you to assume for the purpose of the questions I am about to ask you that at the time of the shooting Jason Swift was fully upright, that Officer Wallace Martin was the shooter.
That Officer Martin was also standing upright. That Officer Martin was holding his gun in a classic combat stance with his arms extended, arms basically horizontal to the ground. That at the time of both shots Officer Martin and Mr. Swift were on the same level.
And I would like to assume that Officer Martin when he fired both shots was aiming for the center mass of Mr. Swift's chest. And with those assumptions in mind my question is do you have an opinion to a reasonable degree of medical certainty whether the wounds noted in the autopsy performed on Jason Swift, specifically the gunshot wounds, could have been produced by shots being fired from those relative positions?
....
A. No. It is my opinion that is not possible.
Q. Could you explain why?
(Doc. 53-32, Dep. of Peter Gillespie, MD.) Unsurprisingly, given this factual dispute, Officer Martin does not join the other Defendants' motion for summary judgment on Plaintiff's claims.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. An issue of fact is “genuine” if it “may reasonably be resolved in favor of either party,” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (internal quotation marks and citation omitted), and it is “material” “only when it possesses the capacity, if determined as the nonmovant wishes, to alter the outcome of the lawsuit under the applicable legal tenets.” Roche v. John Hancock...
To continue reading
Request your trial
-
Deaton v. Town of Barrington
... ... in light of all the circumstances known at the time.” ... Forest v. Pawtucket Police Dep't , 377 F.3d 52, ... 57 (1st Cir. 2004) (holding ... that officer's ... Warner's account was credible. See Smith v. City of ... Boston , C.V. No. 21-10039-IT, 2021 WL 3742478, at * 9 ... (D. Mass. Aug. 24, ... ...
- Graniela v. VÉlez-arocho