Thore v. Howe

• Decision Date: 27 October 2006
• Docket Number: No. 06-1627.,06-1627.
• Parties: Charles THORE, Plaintiff, Appellant, v. Jeffrey HOWE; Daniel Richards; David Napolitano; Michael J. Lyver; Peter A. Kymalainen; Leroy M. Jackson; Phillip J. Kearns, Jr.; John M. Kelley; Matthew Dibara; Glenn Fossa, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

466 F.3d 173

Charles THORE, Plaintiff, Appellant, v. Jeffrey HOWE; Daniel Richards; David Napolitano; Michael J. Lyver; Peter A. Kymalainen; Leroy M. Jackson; Phillip J. Kearns, Jr.; John M. Kelley; Matthew Dibara; Glenn Fossa, Defendants, Appellees.

No. 06-1627.

United States Court of Appeals, First Circuit.

Heard September 7, 2006.

Decided October 27, 2006.

Paul L. Carlucci, for plaintiff-appellant.

Gregg J. Corbo, with whom Joseph L. Tehan, Jr. and Kopelman and Paige, P.C. were on brief, for defendant-appellee Jeffrey Howe.

Joseph P. Kittredge, with whom Law Offices of Timothy M. Burke was on brief, for defendants-appellees Daniel Richards, David Napolitano, and Michael J. Lyver.

Michael J. Kerrigan, with whom Edward T. Hinchey and Sloane & Walsh, LLP were on brief, for defendants-appellees Peter A. Kymalainen, Leroy M. Jackson, Phillip J. Kearns, Jr., John M. Kelley, Matthew Dibara, and Glenn Fossa.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER,^* Senior District Judge.

LYNCH, Circuit Judge.

This suit under 42 U.S.C. § 1983 asserting excessive force and conspiracy claims raises two interesting issues not directly addressed before by this circuit. The first is whether the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars the civil rights claim asserting excessive force brought by plaintiff Thore, who earlier pled guilty to state criminal charges, arising from the same event, of assault with a dangerous weapon on police officers. The second issue is whether Thore is judicially estopped from asserting facts inconsistent with the facts to which Thore agreed during the plea colloquy. Thore admits that if he is judicially estopped from asserting facts inconsistent with the plea colloquy, then his excessive force claim cannot succeed.

On February 8, 2002, Charles Thore pled guilty in state court to several charges, including three counts of assault and battery with a dangerous weapon (to wit, a car) on three police officers, one count of assault and battery, one count of operating a motor vehicle under the influence of alcohol, one count of operating after suspension, and one count of operating to endanger. The charges stemmed from his drunken driving encounter with police officers on October 17, 2001, during which Thore was shot in the neck by Fitchburg police officer Jeffrey Howe. Six other Fitchburg police officers and three Massachusetts state police detectives also were involved.

During his plea colloquy, Thore, who was represented by counsel, said that he agreed with an account of the facts stated by the prosecution. Thore knowingly and voluntarily pled guilty. As a result of his plea bargain, Thore received the benefit of a joint sentencing recommendation of a four-year sentence of imprisonment, which was accepted by the court. He avoided a potential ten-to-twelve-year sentence, and had the benefit of dismissal of other charges.

In August 2003, Thore brought an action in state superior court under 42 U.S.C. § 1983 against the officers; the case was removed to federal court. His original complaint alleged that Officer Howe had used excessive force in shooting him and had engaged in assault and battery. After discovery, he amended his complaint in November 2004, adding claims that six Fitchburg police officers, three Massachusetts State Police detectives (who investigated Officer Howe's use of force), and Officer Howe had all conspired to cover up the circumstances of the shooting and had maliciously abused process.

The district court entered summary judgment for all defendants in a thoughtful opinion. The court held that the doctrine of judicial estoppel barred Thore from asserting facts inconsistent with the facts to which he admitted during his plea colloquy in the Worcester Superior Court. As a result, the court reasoned, Thore's § 1983 excessive force and state law assault and battery claims failed to overcome Officer Howe's qualified immunity. The district court also held that Heck v. Humphrey barred assertion of the § 1983 malicious abuse of process and conspiracy claims against all defendants and that, in any event, no claim was stated under § 1983 as to either malicious abuse of process or conspiracy. The court did not reach the Heck issue as to the excessive force claim.

Thore appeals, arguing that judicial estoppel should not apply to bar him from asserting inconsistent facts because he now has evidence that some of the facts asserted at the plea colloquy are not true. He also argues that Heck v. Humphrey does not bar him from asserting any of his claims. He concedes that if judicial estoppel applies, then the district court was correct in entering judgment for Officer Howe on the excessive force claim. He does not appeal the dismissal of the abuse of process claim.

I.

Thore pled guilty to three counts of assault and battery with a deadly weapon (a car), see Mass. Gen. Laws ch. 265 § 15A(b), as well as other crimes. Under Massachusetts law, assault and battery may be proven using two alternate theories. Under the first, an assault and battery is "the intentional and unjustified use of force upon the person of another, however slight." Commonwealth v. Burno, 396 Mass. 622, 487 N.E.2d 1366, 1368-69 (1986) (quoting Commonwealth v. McCan, 277 Mass. 199, 178 N.E. 633, 634 (1931)) (internal quotation marks omitted). Under the second theory, assault and battery is the "intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another." Id. at 1369. In Massachusetts, assault and battery by means of a dangerous weapon "is a general intent crime, [and] there is no requirement that the Commonwealth must prove the defendant had a specific intent to injure the victim. To find the requisite intent, however, the jury must find beyond a reasonable doubt that the touching did not happen accidentally." Commonwealth v. Ford, 424 Mass. 709, 677 N.E.2d 1149, 1152 (1997) (citations omitted).

We start with the facts the prosecution recited and to which Thore agreed at his plea colloquy in state court:

On October 17th, 2001, at approximately 7:20 p.m., Sergeant Glen[n] Fossa of the Fitchburg police department while off duty observed a blue Volkswag[e]n operating erratically on John Fitch Highway in Fitchburg, Massachusetts. The John Fitch Highway is a public way in the city of Fitchburg. The blue Volkswag[e]n almost struck the passenger side of the vehicle occupied by Sergeant Fossa. Both vehicles stopped. The operator of the blue Volkswag[e]n, Charles Thore, the defendant, started to get out of the vehicle he was operating and began yelling at Sergeant Fossa. Sergeant Fossa observed that Mr. Thore appeared to be having a confrontation with a female passenger in his vehicle. The female passenger was later identified as Jessilyn Chabot. Mr. Thore got back in the blue Volkswag[e]n and began to drive away wildly, passing cars in the turn-only lanes of the John Fitch Highway. Sergeant Fossa reported the blue Volkswag[e]n to the Fitchburg police department.

Sergeant John Kell[e]y and Officer Matthew Dibara responded to the John Fitch Highway. Sergeant Fossa pointed out the blue Volkswag[e]n to the responding Fitchburg officers. Sergeant Fossa observed Mr. Thore holding Miss Chabot in a headlock, and he appeared to be hitting and/or struggling with Miss Chabot. Miss Chabot reported that Mr. Thore was choking her and that he slapped her in the face twice because she was breaking up with him. Miss Chabot was pregnant with Mr. Thore's child at the time.

Officer Dibara approached the blue Volkswag[e]n and instructed Mr. Thore to please turn off the engine and step from the vehicle. Mr. Thore did not comply and eventually placed the vehicle in reverse and accelerated. Officer Dibara reached into an open window and attempted to stop the blue Volkswag[e]n out of concern for the safety of Miss Chabot. Officer Dibara held onto Mr. Thore as he was dragged somewhat and was forced to run at times to keep pace with the vehicle. Officer Dibara disengaged after about 25 feet, fearing for his life. At times throughout the incident the blue Volkswag[e]n operated by Mr. Thore came into contact with Officer Dibara.

Mr. Thore attempted to flee through the parking lot but was headed off by Sergeant Kell[e]y and Fitchburg police officer Jeffrey Howe, who were operating separate police cruisers. Mr. Thore began to strike both cruisers operated by Sergeant Kell[e]y and Officer Howe with the blue Volkswag[e]n.

At one point Officer Dibara ordered Mr. Thore to stop at gunpoint. Mr. Thore looked at Officer Dibara and stated, "Fucking shoot me." Officer Dibara re-holstered his weapon and attempted to pull Mr. Thore from the vehicle. Mr. Thore again accelerated, broke free, and struck Officer Howe's cruiser on the driver's door, pushing Officer Howe and his cruiser into a tractor trailer truck and nearly striking Officer Dibara. Officer Dibara heard Mr. Thore's vehicle revving as Mr. Thore was apparently attempting to move the blue Volkswag[e]n in an unknown direction. Fearing for his life, and that of Officer Dibara[], Officer Howe fired three shots from his firearm at this point. One round struck Mr. Thore in the neck.

This is a matter of record; there is no disagreement that Thore agreed to these facts.

Thore argues that the facts to which he admitted are not true as to whether the officers were endangered or in fear for their lives. He argues he can prove this through the testimony of a disinterested third-party witness, one Jon Laro, the truck driver under whose truck Officer Howe's cruiser was pushed. Laro, at deposition in this case, gave a markedly different version of the events that contradicted those (a) recited in the plea colloquy and (b) contained in the two statements the police recorded on interviewing Laro, which Laro signed shortly after the event (and which...