Robinson v. Cook

• Decision Date: 21 March 2012
• Docket Number: Civil Action No. 10–10188–JGD.
• Citation: 863 F.Supp.2d 49
• Parties: Robert F. ROBINSON and Mario T. Robinson, Plaintiffs, v. Timothy J. COOK, Jr., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

863 F.Supp.2d 49

Robert F. ROBINSON and Mario T. Robinson, Plaintiffs,

v.Timothy J. COOK, Jr., et al., Defendants.

Civil Action No. 10–10188–JGD.

United States District Court, D. Massachusetts.

March 21, 2012.

Valeriano Diviacchi, Diviacchi Law Office, Boston, MA, for Plaintiffs.

Douglas I. Louison, Joseph A. Padolsky, Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

I. INTRODUCTION

This action arises out of events surrounding the arrest of the plaintiffs, Robert F. Robinson (“Robert”) and Mario T. Robinson (“Mario”), by officers of the Attleboro, Massachusetts Police Department following reports of an incident in which two thirteen year old boys allegedly were verbally harassed by passengers of a passing car, and one of the boys, the son of an Attleboro police officer, allegedly was struck by the car. The plaintiffs deny that they had anything to do with the incident involving the two boys, and they contend that their arrest occurred without probable cause. They also contend that Robert's vehicle was unlawfully seized from his driveway, and that they were subjected to excessive force in connection with their arrest. The Robinsons have named as defendants the City of Attleboro (“City” or “Attleboro”) and eight individual police officers, including Timothy Cook, Jr. (“Cook, Jr.”), Timothy Cook, Sr. (“Cook, Sr.”), Barry Brewer (“Brewer”), Danish Malhotra (“Malhotra”), James MacDonald (“MacDonald”), Jeffrey Pierce (“Pierce”), Richard Woodhead (“Woodhead”), and Kevin Fuoco (“Fuoco”). By their Second Amended Complaint, the plaintiffs have asserted claims for violations of their civil rights under 42 U.S.C. § 1983 (“Section 1983”) and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I (“MCRA”), based on allegations of unlawful arrest, the use of excessive force and the unreasonable seizure of Robert's automobile (Counts I–III and IX). Additionally, the plaintiffs have asserted state law claims for false imprisonment (Count IV), assault and battery (Count V), intentional infliction of emotional distress (Count VI), aiding and abetting (Count VII), and civil conspiracy (Count VIII).

The matter is presently before the court on the “Defendants' Motion for Summary Judgment” (Docket No. 43), by which the defendants are seeking summary judgment on all of the plaintiffs' claims. Also before the court are the plaintiffs' cross-motions for summary judgment (Docket Nos. 49 and 50). By their motions, both of the plaintiffs are seeking summary judgment with respect to the civil rights claims asserted against the City in Count II, and with respect to the claims asserted against Cook, Sr. in Counts I, III, IV, V and VI, which are based on their allegations of excessive force and unlawful arrest. Additionally, Robert is seeking summary judgment on the claims asserted against Malhotra, MacDonald and Fuoco in Counts I, III and VII, which are based on the alleged unlawful seizure of his automobile.

The plaintiffs have agreed to withdraw all of their claims against defendants Pierce, Brewer and Woodhead, and to dismiss the claim of supervisory liability, which is set forth in Count IX of the Second Amended Complaint. Accordingly, the defendants' motion for summary judgment will be allowed with respect to those claims, and this court will not address them further.

For all the reasons detailed below, the defendants' motion for summary judgment is ALLOWED IN PART and DENIED IN PART. Specifically, the motion is denied with respect to the excessive force and assault and battery claims asserted by Mario in Counts I, III and V, the aiding and abetting claim asserted in Count VII, and the claim for civil conspiracy asserted in Count VIII, but is otherwise allowed. The plaintiffs' cross-motions for summary judgment (Docket Nos. 49 and 50) are both DENIED.

II. STATEMENT OF FACTS¹

The following facts are undisputed unless otherwise indicated.

The Parties

The events giving rise to this litigation occurred on July 12, 2007. (DF ¶ 3). At that time, plaintiff Robert F. Robinson was 46 years old, and was living at 60 Lynwood Circle in Attleboro, Massachusetts. (Pl. Ex. 1 at 1; DF ¶ 1). Robert's son, plaintiff Mario T. Robinson, was 19 years old and was living at the same address. ( Id.). The defendant, Cook, Sr., was a Detective for the Attleboro Police Department. (DF ¶ 4). The remaining defendants, Cook Jr., Malhotra, MacDonald, and Fuoco, all were Patrolmen with the Attleboro Police Department. (DF ¶¶ 5, 7, 8, 11).

The Incident Involving the Two Boys

On July 12, 2007, a 13 year old boy named Christopher Redlund (“Redlund”) claimed that he and a friend, 13 year old Nathan Chou (“Chou”), were riding their bikes on Wilmarth Street in Attleboro when a vehicle drove up to them. (DF ¶ 12; Pl. Ex. 2). According to the boys, the individual who was sitting in the front passenger seat of the vehicle began to swear at Redlund and Chou. ( See DF ¶ 16; PR ¶¶ 16–17; Pl. Ex. 1 at 1–2). They further reported that after Redlund told the individual to go away and leave the boys alone, the vehicle drove at Redlund and struck him. (Pl. Ex. 1 at 2). Allegedly, the impact from the vehicle caused him to flip over his handlebars and fall to the pavement, scraping his entire back. (Pl. Ex. 14 at 13). Redlund then looked up to see the car speeding away. (DF ¶ 18; Pl. Ex. 2).

Redlund's father, Alex Aponte (“Aponte”), is a Detective with the Attleboro Police Department. (DF ¶ 14).² Following the incident on Wilmarth Street, Redlund called his father to tell him what had happened. (DF ¶ 21). Aponte, along with defendants MacDonald and Malhotra, responded to the scene and spoke with Redlund and Chou. (DF ¶¶ 22, 29). During their discussion, both boys told the officers that the offending vehicle was a small, two-door compact car, color silver, and that they had previously seen the vehicle driving in the area of Wilmarth Street. (Pl. Ex. 1 at 2; PR ¶¶ 18–19). They also stated that there was a rubber strip hanging from the passenger side of the vehicle, and that the exterior of the car was in poor shape. (Pl. Ex. 1 at 2–3). Moreover, Redlund thought the car was a Japanese make, and believed that there had been four dark skinned young males in the vehicle at the time of the incident. ( Id. at 2). Chou told Aponte that the car looked like a Nissan, and both boys said they would be able to recognize the car if they saw it again. (PR ¶¶ 18–19; Pl. Ex. 1 at 3). Although Redlund claims that he had seen a red security warning indicator on the car's center console when the vehicle initially pulled up alongside him, it appears that he did not share that detail with the police officers. ( See DF ¶ 20; Pl. Ex. 1 at 2–3).

The Defendants' Investigation

After speaking with the witnesses, the officers began to search for the car. (DF ¶ 30; PR ¶ 30). Subsequently, Aponte and defendant Fuoco located a two-door, 1989 Honda Accord sitting in the driveway of the plaintiffs' residence at 60 Lynwood Circle, about a mile away from the location where Redlund had allegedly been struck. (DF ¶¶ 15, 31, PR ¶¶ 15, 31). They decided that the car fit the description of the vehicle they were looking for, and they notified the other officers of its location. ( See DF ¶ 31; PR ¶ 31). The vehicle was registered to the plaintiff, Robert Robinson. (DF ¶ 31).

According to the defendants, the police officers observed that the passenger side door of the vehicle in the Robinsons' driveway was not fully closed, and that a strip of rubber molding was hanging off its side. (DF ¶ 33). They also observed that the exterior of the car was in poor condition. (DF ¶ 34). Moreover, the officers determined that the engine of the vehicle was hot, thereby indicating that the car had recently been running. (DF ¶ 35; Pl. Ex. 13 at 10).

While the police officers were outside the Robinsons' residence, Robert came out of the house and asked what was going on. (Pl. Ex. 9 at 30–32; Def. Ex. C at Int. No. 3). MacDonald informed Robert that the officers were investigating a hit and run involving a silver car, possibly a foreign make vehicle. (DF ¶ 36; PR ¶¶ 36–41). MacDonald also inquired as to the whereabouts of Robert's son, the plaintiff Mario Robinson, and asked Robert who had been driving the Honda Accord. (DF ¶ 37; PR ¶¶ 36–41). Apparently, MacDonald was familiar with Mario because he had been arrested by Attleboro police officers in the past. (DF ¶ 37 n. 4; Def. Ex. A).

Robert told MacDonald that Mario was getting a haircut. (Def. Ex. C at Int. No. 3). However, the parties dispute whether Robert lied to the officers about the plaintiffs' use of the car. ( See DF ¶¶ 38–39; PF ¶ 4). According to the defendants, Robert initially denied that anyone had been driving the car, but subsequently recanted his statement and said that he and Mario had been in the car earlier, when they commuted home from work together. ( See DF ¶¶ 38–40). Robert claims, in contrast, that he did not deny using the car, but rather told the officers that it had been sitting in the driveway for about 10 to 20 minutes. (PR ¶¶ 36–41).

Following the conversation with Robert, the officers had the Honda Accord towed from the Robinsons' driveway to the police station as evidence of the crime of assault and battery with a deadly weapon. (DF ¶ 42). It is undisputed that the officers did not obtain a search warrant before towing the car. (PF ¶¶ 3–4). According to Malhotra, the police towed the vehicle in order to use it in their ongoing investigation.(PF ¶ 4). MacDonald believed it was necessary to tow the car so that it could not be destroyed or tampered with. (PF ¶ 3). Both officers agreed that the decision to tow the vehicle was consistent with the policies and procedures of the Attleboro Police Department. (PF ¶¶ 3–4).

Prior to leaving the Robinsons' residence, the police officers asked that Robert...