Petricca v. City of Gardner
| Decision Date | 28 February 2006 |
| Docket Number | No. CIV.A.03-40218 NMG.,CIV.A.03-40218 NMG. |
| Citation | 429 F.Supp.2d 216 |
| Parties | Lawrence PETRICCA, Sr., Plaintiff, v. CITY OF GARDNER et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
George A. Berman, Marjunette deMagistris, Peabody & Arnold LLP, Boston, MA, Daniel P O'Brien, Posternak, Blankstein & Lund LLP, Boston, MA, for Kopelman & Paige, P.C., Katherine Goree Doyle, Defendants.
Jeremy I. Silverfine, Brody, Hardoon, Perkins & Kesten, LLP, Boston, for City of Gardner, Daniel Kelley, Richard Reynolds, Defendants.
Marjunette deMagistris, Peabody & Arnold LLP, Boston, MA, for Kopelman & Paige, P.C., Katherine Goree Doyle, Defendants.
Plaintiff, Lawrence Petricca, Sr. ("Petricca"), proceeding pro se, filed a civil rights action in September, 2003, against the following defendants: the City of Gardner, Massachusetts ("the City"), its former Mayor, Daniel Kelley ("Mayor Kelley"), its Building Commissioner, Richard Reynolds ("Comm'r Reynolds"), unnamed employees and agents of the City ("John Does 1-20"), a law firm retained by the City, Kopelman & Paige ("the Law Firm"), and an attorney with that firm, Katherine I. Goree Doyle ("Atty Doyle").
Currently pending before the Court are motions filed jointly by the City, Mayor Kelley and Comm'r Reynolds (collectively, "City Defendants") 1) for summary judgment and 2) to strike portions of an affidavit filed by Petricca in opposition to their motion for summary judgment. The motion to strike will be discussed first because its disposition affects the Court's consideration of the pending dispositive motion.
Petricca alleges that defendants individually, and in concert with one another, deprived him of his rights under the United States and Massachusetts constitutions by means of, inter alia, abusing the legal process and making false statements. He further alleges that defendants have engaged in a pattern of violence, intimidation and humiliation against him and his business for 20 years. More specifically, Petricca avers that defendants unjustifiably prevented him from selling properties that he owns, failed to investigate his police complaints or respond to requests for public information and filed unfounded criminal charges against him. Plaintiff's complaint states eight causes of action: federal and state civil rights violations, negligence, conspiracy to interfere with civil rights, breach of the covenant of good faith and fair dealing, malfeasance, malicious prosecution, interference with business relations and malicious abuse of legal process.
Numerous motions have been filed by Petricca during the course of this litigation, most of which have been denied. In October, 2004, the Court referred to Magistrate Judge Swartwood various motions including one seeking summary judgment on behalf of Atty Doyle and the Law Firm in which those defendants contended that plaintiff's claims against them were deficient as a matter of law and without evidentiary support. The Magistrate Judge's Report and Recommendation ("R & R") of January 4, 2005, recommended that this Court allow that motion for summary judgment. No timely opposition to the R & R was filed and this Court accepted and adopted the R & R on January 26, 2005, thereby dismissing the claims against Atty Doyle and the Law Firm.
Fed.R.Civ.P. 56(e) provides that a party may support its motion for summary judgment or opposition thereto with affidavits that are
made on personal knowledge, ... set forth such facts as would be admissible in evidence, and ... show affirmatively that the affiant is competent to testify to the matters stated therein.
City Defendants contend that portions of an affidavit sworn to by David Thomas ("Thomas"), a real estate broker who was under contract with Petricca and who had various communications with defendants with respect to the instant lawsuit, fail to meet the requirements of Rule 56(e).
In particular, City Defendants request that ¶¶ 7-9, 11, 15-17, 21 and 24 be struck on the grounds that those paragraphs include inadmissible 1) legal arguments and conclusions, 2) unfounded expert opinions and 3) assertions about which Thomas lacks personal knowledge. Petricca disputes those contentions in a filing that fails to address defendants' positions squarely. Rather, he requests that City Defendants' motion be denied on the grounds that a) they failed to confer with him before filing that motion, b) many of Thomas's statements are corroborated by other affidavits and c) the uncorroborated statements nonetheless raise genuine issues of material fact.
After reviewing the portions of the affidavit that City Defendants seek to strike, the Court will deny their motion with respect to ¶ 8 but otherwise allow it. Whereas ¶ 8 reflects the affiant's personal knowledge, ¶¶ 7, 9, 11, 15-17, 21 and 24 either have no basis in the affiant's personal knowledge or else state inadmissible legal conclusions.
City Defendants have moved for summary judgment with respect to all claims asserted against them. In support thereof, they adopt the statement of material facts that accompanied the motion for summary judgment of Atty Doyle and the Law Firm, adding only a few other facts in support of their own motion. See LR 56.1. Because the statement of facts provided by Atty Doyle and the Law Firm concerned only those defendants, it is largely irrelevant to the contentions of City Defendants. Leaving such a paucity of supporting material, the motion of City Defendants for summary judgment is more akin to one for judgment on the pleadings. Petricca opposes that motion in an overlong memorandum that touches only obliquely upon defendants' legal contentions. He does, however, assert numerous facts which City Defendants have not specifically addressed.
Summary judgment is appropriate where the moving party has shown, based upon the pleadings, discovery and affidavits, "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).
A fact is material if it "might affect the outcome of the suit under the governing law". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party". Id.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). If, after viewing the record in the nonmovant's favor, the Court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate.
Petricca has asserted claims under 42 U.S.C. §§ 1983 and 1985 and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H and 11I ("MCRA"), in which he contends that defendants infringed his civil rights secured by the federal and Massachusetts constitutions.
The City contends that Petricca cannot maintain a § 1983 action against it because there is no allegation or evidence that he suffered injury caused by its official "policy or custom". Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To establish a § 1983 claim against the City, Petricca must prove the existence of an unconstitutional municipal policy or a
widespread practice that, although not authorized by written law or express municipal policy, is `so permanent and well settled as to constitute a custom or usage with the force of law'. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion).
Because Petricca has proffered no evidence of a municipal custom acquiring the force of law, his § 1983 claim against the City must be based on the existence of unconstitutional municipal policy. The United States Supreme Court has held that policy-based municipal liability may only derive from acts representing a final policymaking decision. Id. at 123, 108 S.Ct. 915 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)). Thus, plaintiff must demonstrate misconduct performed pursuant to a policy duly adopted by the official or officials in charge of policymaking in that area. Id. Where an official's decisionmaking authority is discretionary, any policy which binds that discretion is considered official municipal policy. Id. at 127, 108 S.Ct. 915. Where the authority of a subordinate is subject to review and ratified by a policymaking official, that ratification is attributable to the municipality. Id.
Plaintiff must show, moreover, an "affirmative link" between the City (or its supervisory personnel) and the alleged misconduct by municipal employees. See Gaudreault v. Municipality of Salem, 923 F.2d 203, 209 (1st Cir.1990) (citation omitted). Establishing such a link requires proof that "acts or omissions of the municipality's policymakers evidence[d] `deliberate indifference'" to plaintiff's rights. Id. (citing Canton v. Harris, 489 U.S. 378, 387-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
In this case, Petricca has offered only the following with respect to the alleged unconstitutional municipal...
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