Nuon v. City of Lowell

• Citation: 768 F.Supp.2d 323
• Decision Date: 04 March 2011
• Docket Number: Civil Action No. 09–11161–LTS.
• Parties: Vesna NUON, Plaintiff,v.CITY OF LOWELL and Brian M. Kinney, Defendants.
• Court: U.S. District Court — District of Massachusetts

768 F.Supp.2d 323

Vesna NUON, Plaintiff,

v.CITY OF LOWELL and Brian M. Kinney, Defendants.

Civil Action No. 09–11161–LTS.

United States District Court, D. Massachusetts.

March 4, 2011.

Jeffrey P. Wiesner, Stern, Shapiro, Weissberg & Garin, Boston, MA, Myong J. Joun, Joun Law Office, Brookline, MA, for Plaintiff.Brian W. Leahey, Christine P. O'Connor, Ciy of Lowell Law Department, Lowell, MA, Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON PLAINTIFF NUON AND DEFENDANT KINNEY'S CROSS–MOTIONS FOR SUMMARY JUDGMENT

SOROKIN, United States Magistrate Judge.

The Plaintiff, Vesna Nuon, brings claims against the City of Lowell and Defendant Brian M. Kinney arising from Kinney's March 21, 2008, arrest of Nuon on a charge of disorderly conduct, an arrest which Nuon asserts was not supported by probable cause and was motivated by his protected speech. Nuon brings claims against Kinney pursuant to 42 U.S.C. § 1983 and M.G.L. c. 12, §§ 11H and 11I, the Massachusetts Civil Rights Act (MCRA), in addition to common law claims for false imprisonment and malicious prosecution. Nuon's sole claim against the City of Lowell is for negligence, pursuant to the Massachusetts Torts Claims Act, M.G.L. c. 258.

Currently pending are Nuon and Kinney's cross-motions for summary judgment. For the following reasons, Nuon's motion for Partial Summary Judgment (Docket # 30) is ALLOWED IN PART and DENIED IN PART. Kinney's motion (Docket # 32) is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court has drawn all facts recited herein (other than undisputed background facts unrelated to the arrest at issue) from Kinney's account of the events at 174 Hale Street in Lowell on Friday evening, March 21, 2008. Although Nuon disputes portions of Kinney's account, he nevertheless concedes that the Court is obliged in reviewing his motion to view the record in the light most favorable to Kinney, the nonmoving party, and to draw all reasonable inferences in Kinney's favor. Docket # 31 at 2, n. 2; See infra at 6.

On March 21, 2008, Nuon was visiting a friend, Chun Leng, at Leng's home at 174 Hale Street in Lowell. Docket # 31–2 at 63–64. He arrived at about 9:40 p.m. Id. at 68. On that night, Kinney was working a 5:00 p.m. to 1:00 a.m. patrol shift, in uniform and without a partner. Docket # 31–3 at 17, 19. At approximately 12:10 a.m. on March 22, Kinney was dispatched to 174 Hale Street to respond to a call involving an unwanted male. Id. at 20–21. 174 Hale Street is a two-story residential building, with a small front yard and a walkway leading to a front porch. Id. at 23. Kinney parked in front of the driveway. Id. at 27. Nuon was standing in the front yard as Kinney arrived. Id. at 28. Kinney asked Nuon if he had called the police. Id. at 30. Nuon seemed upset and responded, “No, nobody called the police. Nobody wants you here.” Id. At that point, Kinney was not sure if Nuon might be the “unwanted male” referenced in the call to police. Id. at 49. Sambat Or (a resident of the rear apartment) then appeared at the back of the house in the driveway and indicated that he had called the police. Id. at 30–31.

Kinney and Nuon had no further interaction at this point, and Kinney accompanied Or to the back of the house. Id. at 33. Or told Kinney that he had called the police because his minor daughter had left the house with a boyfriend against his wishes. Id. at 34, 36. Or's daughter's boyfriend was the unwanted male referenced in the call to police. Id. at 39. Kinney then completed a missing person report. Id. at 35. Kinney spent approximately twenty minutes completing the report. Id. at 36.

As Kinney returned to the police cruiser, Nuon was still standing in the yard and had been joined by another male (who, like Nuon, appeared to Kinney to be in his late thirties). Id. at 39–40. As Kinney walked by, Nuon pointed at Kinney and said to his companion, “[t]hat's him. that's the guy right there.” Id. at 40. Kinney stopped and asked Nuon if he could help him with something. Id. Nuon responded “no,” angrily and loudly ordered Kinney to “get off the property.” Id. Kinney testified that, “[h]e was very angry, it was like he was upset at me for nothing.” Id. Nuon had remained in the same spot as he spoke, but pointed and waved his arms. Id. at 44–45. The two men were three-to-four feet apart. Id. at 45. Kinney was puzzled as to the reason for Nuon's behavior because “he ha[d] nothing to do with the call.” Id. Nuon's speech was slurred and Kinney smelled alcohol and suspected that he had been drinking. Id. at 46. He considered Nuon's behavior to be irrational. Id. at 47. Kinney asked Nuon if he lived there, and Nuon answered that he did not but indicated that his companion did. Id. at 48. Kinney then asked to see Nuon's identification. Id. Kinney testified that at this point, he believed Nuon's behavior came close to subjecting him to arrest for disorderly conduct. Id. at 52, 77.

Nuon told Kinney that his identification was inside the house. Id. at 53. Kinney asked Nuon to retrieve it, and Nuon retreated inside the house, followed by Kinney. Id. Kinney requested that an additional car be dispatched to his location. Id. at 58. Nuon gave his identification to Kinney, and Kinney made a warrant check. Id. at 56. While Kinney waited for the results, Nuon was upset and indicated that he felt that Kinney was harassing him and that he wanted to speak to his supervisor. Id. He was no longer screaming and yelling, or even loud. Id. at 59. When the warrants check was negative, Kinney asked the dispatcher for a criminal record check as well. Id. at 62. When that was also negative, Kinney returned Nuon's identification, suggested to both men that they stay inside, and then left the residence. Id. at 64, 68. Before Kinney reached his cruiser, Nuon yelled, “you're a coward, hiding behind your badge, get off my property.” Id. at 68. Both men were on the porch, and Kinney asked Nuon's companion, “can you get him in the house?,” which generated no response from the companion. Id. Nuon, however, became more upset, pointing towards the cruiser and yelling, “you can't tell him what to do. You can't tell me what to do,” and repeating that Kinney should “get off the property.” Id. Kinney then warned Nuon that he needed to be quiet, or Kinney would arrest him for disorderly conduct. Id. at 72. Nuon responded that Kinney could not arrest him and repeated his demand that Kinney leave. Id. Kinney then came up to the porch and arrested Nuon. Id.

Kinney testified that at no point did Nuon threaten physical violence or the use of any physical force. Id. at 82. He felt that Nuon's behavior delayed and inconvenienced a police investigation ( i.e., that of the missing juvenile) and had the potential to disturb and disrupt the neighborhood after midnight. Id. at 83. Kinney was not aware of anyone who was actually disturbed by Nuon's behavior, and did not see anyone come out of their home, nor did he see lights turned on in neighboring homes. Id. at 84. Other than a house to the left and to the rear, 174 Hale Street is surrounded by commercial buildings and empty parking lots. Docket # 31–6.

Nuon was charged with one count of disorderly conduct under M.G.L. c. 272, § 53, and was arraigned at the Lowell Division of the District Court on Monday, March 24, 2008. At the arraignment, the charges against Nuon were dismissed upon his payment of $200 in court costs. Docket # 31, Ex. D (Criminal Docket in the Matter of Commonwealth v. Vesna Nuon, Lowell District Court, Docket No. 0811CR001943).

On July 9, 2009, Nuon filed this action. Docket # 1. His Amended Complaint brings five claims against Kinney: Count I, pursuant to 42 U.S.C. § 1983, for arresting him without probable cause in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States; Count II, pursuant to 42 U.S.C. § 1983, for arresting him in retaliation for his protected speech, in violation of the First Amendment to the United States Constitution; Count III, pursuant to the MCRA, for arresting him without probable cause and in retaliation for protected speech, both in violation of the Massachusetts Declaration of Rights and the Constitution of the United States; Count IV, for false imprisonment, brought pursuant to Massachusetts common law; and Count V, for malicious prosecution, brought pursuant to Massachusetts common law. Docket # 23–1. In Count VI, Nuon brings a negligence claim against the City of Lowell.¹ Id.

Nuon now moves pursuant to Fed.R.Civ.P. 56 for partial summary judgment on Counts I–IV against Kinney. Docket # 30–31. Kinney moves for summary judgment on all counts directed against him. Docket # 32.²

II. DISCUSSIONSummary Judgment Standard

Summary judgment is appropriate when “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). Once a party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who “may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Moreover, the Court is “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993).

A. Nuon's Motion for Summary JudgmentCounts I and III, Probable Cause for the Arrest

Under the Fourth Amendment to the United States Constitution, the right to be free from unreasonable searches gives rise to a requirement that an arrest be supported by probable cause. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)....