Noel v. Town of Plymouth, Mass., Civ. A. No. 91-13230-PBS.

• Decision Date: 14 July 1995
• Docket Number: Civ. A. No. 91-13230-PBS.
• Citation: 895 F. Supp. 346
• Parties: Richard NOEL, Plaintiff, v. TOWN OF PLYMOUTH, MASSACHUSETTS; George Madsen; Charles Warnock; William Fistori; Robert M. Texeira; Victor M. Higgins; John Doe Crosby; and Richard Roe Santos, Defendants.
• Court: U.S. District Court — District of Massachusetts

895 F. Supp. 346

Richard NOEL, Plaintiff, v. TOWN OF PLYMOUTH, MASSACHUSETTS; George Madsen; Charles Warnock; William Fistori; Robert M. Texeira; Victor M. Higgins; John Doe Crosby; and Richard Roe Santos, Defendants.

Civ. A. No. 91-13230-PBS.

United States District Court, D. Massachusetts.

July 14, 1995.

COPYRIGHT MATERIAL OMITTED

Robert LeRoux Hernandez, Law Offices of Robert L. Hernandez, Malden, MA, for plaintiff Richard Noel.

David C. Jenkins, Grady and Dwyer, Joyce F. Frank, Kopelman and Paige, Boston, MA, for defendants Town of Plymouth, Mass., George Madsen, Robert M. Texeira, Victor M. Higgins, John Doe Crosby, Richard Roe Santos.

David C. Jenkins, Grady and Dwyer, Joyce F. Frank, Kopelman and Paige, Douglas I. Louison, Merrick and Louison, Boston, MA, for defendants Charles Warnock, William Fistori.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SARIS, District Judge.

Plaintiff Richard Noel claims that he was beaten by two Plymouth police officers, in the presence of several others, when a series of misunderstandings led the chief of police to chase him down a dirt road and crash into a tree. Plaintiff brings this civil rights action for compensatory and punitive damages under 42 U.S.C. § 1983 for violations of the Fourteenth Amendment and state law against the Town; its police chief, George Madsen; and six police officers. Along the lines more fully elaborated below, defendants' motion for summary judgment is ALLOWED in part, and DENIED in part.

FACTUAL BACKGROUND

For purposes of this motion, the court takes the following facts as undisputed, except where otherwise (quite frequently) noted.

Noel spent the evening of January 21, 1989, from about 9:00 to 11:30, alone at a Plymouth restaurant and bar called Bert's. According to his testimony, he consumed three beers during that time. Noel set out by car toward his home, on Route 3A south, at about the same time that Chief Madsen was returning from his own social engagement, with his wife Dennette, in an unmarked Cadillac. Noel passed Madsen. The Madsens state that Noel's car was travelling at a high rate of speed with its high beams on, and that while he passed, Noel waved both arms at them. Noel denies all of these details, and states that, while the Madsens were traveling slowly, he was driving within the speed limit and passing in a legal passing area. The Cadillac caught up to Noel, and Noel, purportedly believing that it was following him, pulled to the side of the road to let it pass. Noel got back onto the road, and caught up to the Madsens.

The Madsens believe that he began to follow them at that point, while still on Route 3A. The Madsens turned onto Delancey Drive, where they reside. Noel began to follow them at this point. He states that an old friend (whom he had not seen for five years) lived on Delancey — and it suddenly occurred to him that she might be driving the car that he believed had been following him. He turned onto Delancey, and followed the Cadillac to see if it would stop beside his old friend's house.

The Madsens pulled into their own driveway, and watched Noel round the cul de sac and head back toward Route 3A. It was at this point that Chief Madsen, alarmed by what appeared to him to be erratic behavior, had a general police dispatch broadcast, and began to follow Noel. Back on the highway, Noel travelled past the turnoff for his own home, out of fear (he says) of revealing his place of residence to the mysterious persons trailing him. A few turns later, he reached Old Sandwich Road, with the Cadillac still at his heels. After the road became unpaved, Chief Madsen lost control of his vehicle and crashed into a tree. Noel continued down the dirt road. He says he was going 35-40 miles per hour at this juncture; Officer William Fistori estimates that his speed was in the 50-60 miles per hour range.

Meanwhile, six police officers in four cars were making their separate ways to the scene, in response to Chief Madsen's dispatch. Victor M. Higgins was assigned as street sergeant for the northern end of town; and Robert M. Texeira street sergeant for the southern end. A pair of two-man cruisers were patrolling the Manomet section of Plymouth, where events came to a head: the team of Warnock and Santos; and the team of Fistori and Crosby.

Sgt. Higgins arrived first, from the opposite end of Old Sandwich Road, with his lights flashing. Noel stopped, produced his license and registration, and readily assented to accompany the Fistori/Crosby team and Sgt. Texeira (who had initially intercepted the car and had just pulled up) to the scene of Madsen's accident. Sgt. Higgins, who had not observed an odor of alcohol on Noel's person, returned to his beat. The Warnock/Santos team was already waiting with Madsen. At the scene of the accident, Noel was approached by Fistori, who asked for his version of the events. Fistori then asked Noel to exit his car—reportedly because he had observed Noel speeding, and inferred from his slurred speech, glassy eyes, and malodorous breath, that Noel was drunk. Noel states that when he was attempting to leave his vehicle he was hit in the face and lost consciousness. The next thing he can remember, he was on the ground, flanked by Warnock and Fistori, and was struck from behind by one of them as he tried to get up. Noel then claims he was thrown against his car and handcuffed tightly.

According to defendants, Noel refused to leave his car. Both Fistori and Warnock have stated that while they, in the manner prescribed by training, were forcibly trying to remove Noel from his car and handcuff him, Noel resisted and threw several wild punches at Warnock. They then, on their own authority, decided on the spot to arrest Noel, each for a different reason — Warnock on the charge of assault and battery on a police officer; and Fistori on the charge of driving while under the influence. During the scuffle and the arrest, Warnock's partner, Santos, was standing about ten feet away with Chief Madsen, waiting for an ambulance to arrive; Fistori's partner, Crosby, and their supervisor, Sgt. Texeira, were also in the general vicinity; Noel does not recall seeing any of these three officers, and cannot say where they were standing. Chief Madsen asked Crosby to have "that person" brought to him. When Crosby brought Noel before him, Madsen just gave him a stare. At this time, Crosby, from short range, observed a bleeding cut on Noel's forehead (but no other injuries); Noel was cooperative.

At the police station, Noel was booked and given a breathalyzer test by Lieutenant Kevin Fahy (who is not a named defendant). Fahy detected a strong odor of alcohol, and glassy eyes. The breathalyzer examination produced a blood alcohol level of 1.7 to 1.9. A booking photograph was then taken, and filed away by Sgt. Higgins. According to Higgins, this photo showed bruises on the left side of Noel's face and blood "around" his mouth. Higgins concedes that, based on his training, accurate breathalyzer tests cannot be taken when there is blood in the mouth. Noel testified there was blood in his mouth when the breathalyzer was taken. The photo was allegedly lost. Noel was charged with driving under the influence.

Noel claims that on January 23, two days after the incident, he encountered Chief Madsen in a shopping mall. Noel further claims that Madsen pointed a finger at him and threatened that "if you ever do that again, I will kill you." Madsen denies the encounter.

In September, 1991, a judge of the Plymouth District Court dismissed the criminal charges filed against Noel, either because the booking photo was lost, or because Madsen failed to appear to testify, or both. (The record is unclear on this point.)

Noel describes his physical injuries as a "severe scrape and bruise to the upper left side of my eye, bruises and abrasions to the underside of the cheek of my left eye, swollen jaw, very large gash inside my mouth on the left-hand side, bruises to my left shoulder, front and back.... bruises on my back, left side of my back, and bruises on my buttocks." Noel also states that, as a result of the incident, he missed one week of work; he suffered eating and sleeping disturbances, feelings of confusion, fear for his life, nightmares, and depression; he was psychologically unable to drive for about a year and a half; and he had to seek counseling.

DISCUSSION

Plaintiff's first amended complaint lists eight causes of action, four under civil rights statutes and four under common law: violations of the federal civil rights act, 42 U.S.C. § 1983 (Count I); violations of the Massachusetts Civil Rights Act (MCRA), Mass.Gen.L. ch. 12 § 11I, arising from the Old Sandwich Road incident (Count II); false imprisonment (Count III); assault and battery (Count IV); intentional infliction of emotional distress (Count V); malicious prosecution (Count VI); denial of equal rights guaranteed by Mass.Gen.L. ch. 93, § 102(b) (Count VII); and violations of the MCRA, arising from the alleged mall incident (Count VIII).

A. Summary Judgment Standard

A motion for summary judgment must be granted if:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). "It is apodictic that summary judgment should be bestowed only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law." In re Varrasso, 37 F.3d 760, 762 (1st Cir.1994) (citing cases).

"To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). If this is accomplished, the burden then "shifts to the nonmoving party to establish the existence of an issue of fact that...