Spencer v. Roche

• Citation: 755 F.Supp.2d 250
• Decision Date: 08 November 2010
• Docket Number: Civil Action No. 08–40100–FDS.
• Parties: Shane M. SPENCER, Plaintiff,v.Stephen ROCHE, Gary J. Morris, City of Worcester, and VHS Acquisition Subsidiary Number 7, Inc., d/b/a Saint Vincent Hospital, Defendants.
• Court: U.S. District Court — District of Massachusetts

755 F.Supp.2d 250

Shane M. SPENCER, Plaintiff,

v.Stephen ROCHE, Gary J. Morris, City of Worcester, and VHS Acquisition Subsidiary Number 7, Inc., d/b/a Saint Vincent Hospital, Defendants.

Civil Action No. 08–40100–FDS.

United States District Court, D. Massachusetts.

Nov. 8, 2010.

Valeriano Diviacchi, Diviacchi Law Office, Boston, MA, for Plaintiff.Janet J. McGuiggan, City Hall, Kevin M. Gould, Wendy L. Quinn, City of Worcester Law Department, Worcester, MA, for Defendants.

AMENDED MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, District Judge.

This is a civil rights action arising out of a body cavity search. In 2005, Shane Spencer was arrested by the Worcester Police for driving on a suspended license. Shortly thereafter, a confidential informant notified officer Gary Morris that he believed Spencer had placed crack cocaine in his rectum just before he was arrested. Officer Morris and Sergeant Stephen Roche asked for Spencer's permission to conduct a search, but he refused. The officers then attempted a visual search, which was unsuccessful. Based on the information provided by the informant, the police applied for, and obtained, a warrant to search Spencer's “anal cavity” for cocaine.¹ Spencer was taken to Saint Vincent Hospital in Worcester, Massachusetts so that a physician could perform the procedure. After a digital search of Spencer's anal cavity was performed and no cocaine was found, the police requested, and the physician ordered, an x-ray of his abdomen. Spencer was transported to radiology by two nurses while he was handcuffed to a gurney. The x-ray was performed and showed no sign of cocaine in his system.

Spencer has brought an action against Roche, Morris, the City of Worcester, and VHS Acquisition Subsidiary Number 7, Inc. (“VHS”), which operates Saint Vincent Hospital. The complaint includes claims for (1) violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, under 42 U.S.C. §§ 1983 and 1988 (2006); (2) violation of the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, § 11I (2010); (3) assault and battery; (4) intentional infliction of emotional distress; (5) municipal/ supervisory liability; and (6) invasion of privacy. ²

On September 30, 2010, the Court entered an order granting defendants' motions for summary judgment in part, and granting defendants' motion to strike plaintiff's cross-motion as untimely. The order denied summary judgment as to the claims against Morris and Roche under section 1983 and for assault and battery and intentional infliction of emotional distress, and dismissed the MCRA claims, the municipal/supervisory liability claims against the City, and all claims against VHS.

On October 4, 2010, plaintiff filed a motion requesting the Court to reconsider three issues. First, plaintiff asks the Court to reconsider its reading of Longval v. Comm'r of Corr., 404 Mass. 325, 535 N.E.2d 588 (Mass.1989), on which it based its dismissal of the MCRA claims. Second, he contests the Court's determination that the nurse employees did not have a duty to question the restraints placed on him by Morris and Roche. Finally, plaintiff disputes the Court's dismissal of his invasion of privacy claims.

As reflected in the amended order below, the Court finds plaintiff's first request persuasive and has reconsidered its interpretation of Longval. It is not persuaded by plaintiff's other arguments. Accordingly, plaintiff's motion for reconsideration will be granted insofar as it seeks to preserve his MCRA claims against Morris and Roche and will otherwise be denied.

I. Background

The facts are presented in the light most favorable to plaintiff.

A. The Confidential Informant and Visual Cavity Search

On July 28, 2005, Shane Spencer was arrested in Worcester, Massachusetts, and charged with operating a motor vehicle after his license had been suspended. (Defs.' Facts Exs. 4, 5). Worcester police officer Gary J. Morris made the arrest, along with two officers named Lopez and Vo. ( Id. Ex. 5). After Spencer was placed in the patrol wagon and transported to the station for processing, Morris received a call from a confidential informant. ( Id.). The informant told Morris that just prior to the arrest, he observed Spencer place crack cocaine in his anal cavity. ( Id.).³ Morris immediately went to the police station and notified his supervisor, Sergeant Stephen Roche, of the informant's report. ( Id.). Roche and Morris then went to see Spencer and told him that they had information that he was concealing drugs in his body. ( Id.). The officers asked for Spencer to submit to a search of his anal cavity. (Spencer Dep. 16). When Spencer refused, the officers turned him around and pulled down his shorts. (Defs.' Facts Ex. 5). Spencer struggled with them and said “You ain't going near me.” ( Id.). While he was struggling, he tightly clenched his buttocks, and the officers were unable to determine if Spencer was hiding anything. ( Id.).⁴

B. The Search Warrant

Later on the evening of July 28, the police filed an application for a search warrant. The application included an affidavit by Morris describing the circumstances of the arrest, the statements made by the confidential informant, and the unsuccessful visual search of the area. ( Id.). A warrant was issued to search for cocaine “at Shane M. Spencer (d.o.b. x/x/xx) ‘anal cavity.’ ” ( Id.). The warrant allowed for a search “on the person or in the possession of [Shane M. Spencer (d.o.b. x/x/xx) ‘anal cavity’].” ( Id.). ⁵

C. The Digital Search

After the warrant was issued, Spencer was transported by Roche and Morris to Saint Vincent Hospital in Worcester. (Defs.' Facts Ex. 2 ¶ 10; Ex. 3 ¶ 10; Ex. 7 No. 3). At triage, the following was documented: “patient suspected heroin and cocaine inserted rectally here with police with warrant for cavity search.” (Defs.' Facts Ex. 8).

Spencer was seen by John E. Scola, M.D., who noted: “20–year–old male enter [sic] for cavity search for suspected drug (crack cocaine) in package.” ( Id.). After the warrant was presented to Dr. Scola, he performed an anal cavity search. (Defs.' Facts Ex. 2 ¶ 11; Ex. 3 ¶ 11; Ex. 7 No. 3; Ex. 8). ⁶ Roche and another officer placed Spencer on the bed, pulled off his pants, and held Spencer down by his arms and legs. Dr. Scola lubricated his fingers and inserted two fingers into the anal cavity. (Spencer Dep. 26). Spencer recalls being handcuffed during the search. ( Id. 27). No drugs were found. (Defs.' Facts Ex. 7 No. 3).

Spencer refused to sign a conditions of treatment agreement or a release of medical records form. (Spencer Dep. 35).

D. The X–Ray

After the digital search, Roche became upset and told Dr. Scola that there was a possibility that Spencer had orally swallowed the drugs. (Spencer Dep. 28). At the request of Roche and Morris, Dr. Scola ordered a “KUB [kidneys, ureters, and bladder] & upright” x-ray study. (Defs.' Facts Ex. 8; Pl.'s Facts Ex. 3). Spencer was handcuffed to a gurney and escorted by at least two nurses to radiology. (Spencer Dep. 25, 28–29, 31–33, 36, 38, 43).⁷ He repeatedly told the nurses and the radiology staff that he did not consent to an x-ray. ( Id.). Despite Spencer's objections, an individual working at the hospital performed the x-ray. (Defs.' Facts Ex. 8). The handcuffs were removed during the procedure, during which time Morris sat next to Spencer. (Spencer Dep. 31).

The radiology results were negative for the presence of cocaine. (Defs.' Facts Ex. 8). An individual employed by the hospital presented the x-ray results and radiologist's report to Roche, Morris, and an unidentified officer. (Spencer Dep. 32–33). The individual also informed them that there was nothing found in Spencer's stomach area. (Defs.' Facts Exs. 17–18). ⁸ The radiological consultation report noted that “[i]ngestion or insertion occurred approximately one hour ago according to the accompanying police officers.” (Defs.' Facts Ex. 8).

II. Standard of Review

Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Essentially, Rule 56(c) mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ ” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In making this determination, the Court views “the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009).

As noted above, this order has been amended in response to plaintiff's motion for reconsideration. “[M]otions for reconsideration are appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust.” U.S. v. Allen, 573 F.3d 42, 53 (1st Cir.2009). Plaintiff does not present any newly discovered evidence or intervening change in the law. Thus, Plaintiff must show that the Court's decision was based on a manifest error of law or was clearly unjust. The granting of such a motion is “an extraordinary remedy which should be used sparingly.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir.2006). “Unless the court has misapprehended some material fact or point of law, such a motion is normally not a promising vehicle for revisiting a party's case and rearguing theories previously advanced and rejected.” Id.

III. AnalysisA. Motion to Strike Plaintiff's ...