Mercurio v. Town of Sherborn

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CHRISTINE A. MERCURIO,

Plaintiff,

No. 15-cv-10714-DLC

v.

TOWN OF SHERBORN, DAVID BENTO,

LUKE TEDSTONE, JOHN COFFEY, and

MARK SCOLA.

Defendants.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT (DKT. NO. 57)

CABELL, U.S.M.J.

This case arises from a police encounter that led to plaintiff

Christine Mercurio’s (“Mercurio” or “the plaintiff”) arrest. She

contends that Sherborn Police Department (“SPD”) officers used

excessive force and arrested her without cause and she has brought

a multi-count civil rights suit against several SPD officers and

the town of Sherborn (“the Town”). The defendants move for summary

judgment. (Dkt. No. 57). The plaintiff opposes the motion and

the matter has been fully briefed. (Dkt. No. 66). After careful

consideration of the record, the parties’ submissions, and the

information adduced at a hearing on the motion, the motion for

summary judgment is GRANTED IN PART and DENIED IN PART. The

reasons for this ruling are explained below.

I. RELEVANT FACTUAL BACKGROUND

A. The Arrest

On March 15, 2012, shortly before 11:00 p.m., the plaintiff

was driving with her husband, Mohammed Kimakhe (“Kimakhe”), on a

portion of South Main Street in Sherborn. (Concise Statement of

Undisputed Facts In Support of Defendants’ Motion for Summary

Judgment (“Defendants’ SUF”), at ¶ 7). SPD Officers Mark Scola

(“Scola”) and David Bento (“Bento”) were dispatched to that area

at around the same time, based on a report from a caller that a

crime had been committed or was in progress, and that the caller

could hear two individuals arguing by the side of the road.

(Defendants’ SUF, at ¶¶ 14, 15); Plaintiff’s Response to

Defendants’ Concise Statement of Undisputed Material Facts and

Statement of Additional Undisputed Facts In Opposition to

Defendants’ Motion for Summary Judgment (“Plaintiff’s SUF”), at ¶¶

14, 15). The parties agree that neither officer had previously

met or interacted with the plaintiff. (Defendants’ SUF, at ¶ 16).

The parties also agree that an encounter took place between them

when the officers arrived on scene, but offer conflicting versions

of events.

i. The Defendants’ Version

According to the defendants, when Officers Scola and Bento

arrived, Officer Scola saw the plaintiff standing outside of a car

next to a male later identified as Kimakhe. (Id., at ¶ 17).

Officer Scola could hear the plaintiff yelling as he approached.

(Id., at ¶ 18). Shortly thereafter, Officers Scola and Bento saw

the plaintiff strike Kimakhe in the face with her fist. (Id., at

¶ 19).

The officers separated the couple and Officer Bento spoke

with the plaintiff while Officer Scola spoke with Kimakhe. (Id.,

at ¶¶ 20, 22-23). According to Officer Scola, Kimakhe said that

he and the plaintiff began to argue while they were driving down

South Main Street. (Id., at ¶ 24). Kimakhe subsequently pulled

the car over to the side of the road so the plaintiff could exit

the car and call her father, Frank Mercurio, to come and pick her

up. (Id.). Kimakhe admitted that the plaintiff punched him in the

face but he said that he was fine and did not require any medical

attention. (Id., at ¶ 23).

The plaintiff’s father arrived soon afterwards and told

Officer Scola that the plaintiff had called him for a ride because

she and her husband were arguing. (Id., at ¶ 26). Upon hearing

that the plaintiff and Kimakhe were married, Officers Scola and

Bento deemed the plaintiff’s conduct to constitute domestic

violence warranting an immediate arrest under Massachusetts law,

and accordingly decided to place her under arrest. (Id., at ¶¶

27-28).

The officers informed the plaintiff that she was under arrest

and instructed her to place her hands behind her back so they could

handcuff her wrists. (Id., at ¶¶ 29, 32). The plaintiff refused

to comply; the officers attempted to gain control of her wrists,

but she continued to resist by tightening her arms, shaking, and

twisting her body. (Id., ¶¶ 29, 32-33). The officers subsequently

brought the plaintiff to the ground and handcuffed her in the prone

position. (Id., ¶ 34). The officers then asked the plaintiff to

rise so she could walk to the police cruiser. (Id., ¶ 36). The

plaintiff refused to get into the cruiser and continued to resist

by moving sporadically, squirming, flailing her feet, and kicking.

(Id., at ¶¶ 37, 38). At some point, the plaintiff struck Officer

Scola in the face with a shoe. (Id., ¶ 39).

Officers Bento and Scola were eventually able to place the

plaintiff in the cruiser and close the door. (Id., ¶ 55). Still,

the plaintiff continued to be recalcitrant, and attempted to kick

out the rear window of the police cruiser. (Id., ¶ 56). The

officers chose not to secure the plaintiff in the back seat with

a seatbelt in light of the difficulties they encountered in

arresting her in the first place. (Id., ¶ 58).

ii. The Plaintiff’s Version

The plaintiff avers that she and her husband were driving home

when she asked him to pull over to the side of the road so she

could get out and smoke a cigarette. (Id., at ¶ 24). Kimakhe

pulled over and they both stood outside the car while the plaintiff

smoked a cigarette. (Id., at ¶¶ 17, 24). The plaintiff and

Kimakhe were conversing normally when Officers Bento and Scola

arrived. (Id., at ¶ 18). The plaintiff denies that she punched

Kimakhe in the face. (Id., at ¶ 19). Kimakhe also testified in

his deposition that, contrary to Officer Scola’s report, the

plaintiff never struck him, and he did not have any apparent

injuries. (Id., at ¶ 23). Nonetheless, Officers Scola and Bento

separated the plaintiff and Kimakhe and questioned each of them

separately. While the officers were doing so, Frank Mercurio

arrived and in due course told Officer Scola that the plaintiff

and Kimakhe were married. (Id., at ¶¶ 20, 26).

Following this exchange with Frank Mercurio, Officers Scola and

Bento accused the plaintiff of striking Kimakhe in the face and

suddenly threw her to the ground without warning or an opportunity

to respond to the accusation. (Id., at ¶¶ 29, 32). Prior to

throwing her to the ground, neither officer tried to handcuff the

plaintiff or ever informed her that she was under arrest. (Id.,

¶¶ 33, 34). The plaintiff did not struggle or otherwise resist

arrest prior to being taken to the ground. (Id., at ¶ 35).

Once they brought her to the ground, Officers Bento and Scola

placed their knees on the plaintiff’s back in an effort to hold

her down, handcuffed her, and then “dragged” her to the police

cruiser, where she was “thrown” into it “like a duffle bag.” (Id.,

at ¶¶ 32, 36, 37). And, because the officers failed to secure the

plaintiff with a seat belt, she was “thrown around the back of the

police car” as the car moved. (Id., at ¶¶ 56, 58).

According to Frank Mercurio, the plaintiff was initially

“squirming around” but she never resisted arrest and she did not

hit Officer Scola in the face with a shoe. (Id., at ¶¶ 39, 40,

55, 57).

B. The Booking Process

The parties agree that when the officers brought the plaintiff

to the Sherborn police station for booking, she complained of pain

in her thumb and was given an ice pack. (Plaintiff’s SUF, at ¶

59). Officer Scola, however, did not observe any physical injuries

on the plaintiff. (Defendants’ SUF, at ¶ 59). Officers then

handcuffed the plaintiff to a “Murphy bar” and instructed her to

sit in a rolling chair and answer questions through a glass window.

(Defendant’s SUF, at ¶¶ 62, 68; Plaintiff’s SUF, at ¶¶ 62, 68).

The defendants claim that the plaintiff was uncooperative and

continued to resist and kick at the officers but the plaintiff

disputes this assertion and maintains that she was initially

cooperative and answered the booking questions asked of her.

(Defendants’ SUF, at ¶ 69; Plaintiff’s SUF, at ¶¶ 69, 84). Still,

both parties agree that at some point during the booking process

the plaintiff began hitting the glass window in an effort to get

the officers’ attention. (Defendants’ SUF, at ¶ 63; Plaintiff’s

SUF, at ¶ 63). The plaintiff also made several remarks to the

effect that she was contemplating suicide and would take her own

life by any means necessary. (Defendants’ SUF, at ¶¶ 70, 85).1

Based on these remarks, the defendants called for an ambulance to

transport the plaintiff to the hospital for a psychiatric

evaluation. (Defendants’ SUF, at ¶¶ 71, 86, 88; Plaintiff’s SUF,

at ¶ 71).

According to the defendants, the plaintiff became

increasingly agitated once the ambulance arrived and threatened to

“fight” any officer who attempted to move her onto the stretcher.

(Defendants’ SUF, at ¶¶ 74, 96, 98). The plaintiff disputes this

contention and maintains that she sat calmly with her head down on

the Murphy bar, and at no point indicated that she would resist

being transported to the hospital. (Plaintiff’s SUF, at ¶¶ 74,

81, 96, 98).2

Regardless, the parties agree that SPD Officer Tedstone

pulled the chair from under the plaintiff while she was still

handcuffed to the Murphy bar, causing her to fall to the ground.

(Defendants’ SUF, at ¶¶ 73, 75, 102; Plaintiff’s SUF, at ¶¶ 73,

102, 104). The parties also agree that once the plaintiff fell to

the ground, she became increasingly combative with the officers

1 The plaintiff, while not actually disputing this assertion, maintains that

she does not independently recollect having made any suicidal statements.

(Plaintiff’s SUF, at ¶ 70).

2 As support for this assertion the plaintiff cites to the SPD booking video.

(Dkt. No. 67-1, Ex. 7). However, the video does not contain any audio so it is

impossible to determine whether the plaintiff verbally objected to being moved

onto the stretcher.

attempting to move her onto the stretcher, by flailing her arms

and legs, biting, spitting, scratching, and kicking at those around

her. (Defendants’ SUF, at ¶¶ 77, 78, 90; Plaintiff’s SUF, at ¶¶

77, 78, 90). The plaintiff ultimately was placed in a four point

restraint on the stretcher and transported to a local hospital.

(Defendants’ SUF, at ¶¶ 79, 93; Plaintiff’s SUF, at ¶¶ 79, 93).

C. State Court Proceedings

The plaintiff was subsequently charged in state court with

several criminal offenses. (Defendants’ SUF, at ¶ 113; Plaintiff’s

SUF, at ¶ 113). The criminal case was dismissed based on an

opinion from the plaintiff’s psychiatrist that the plaintiff was

suffering from an acute psychotic episode at the time of the

incident and was therefore not criminally responsible for her

actions. (Defendants’ SUF, at ¶¶ 108, 110; Plaintiff’s SUF, at ¶¶

108, 110).

D. The Plaintiff’s Mental Health History

In early 2002 the plaintiff was diagnosed with major

depression with psychotic features; she has attempted suicide at

least four times since then. (Defendants’ SUF, at ¶¶ 2, 4;

Plaintiff’s SUF, at ¶¶ 2, 4). The plaintiff’s condition causes

her to experience psychotic episodes during unpleasant or

traumatic events. (Defendants’ SUF, at ¶ 6; Plaintiff’s SUF, at

¶ 6). During such episodes, the plaintiff hallucinates a male

figure that unleashes an army of cockroaches that will bite and

ultimately kill her. (Defendants’ SUF, at ¶ 5; Plaintiff’s SUF,

at ¶ 5).

The parties disagree as to when SPD officers first learned

that the plaintiff suffers from a mental illness. The plaintiff

maintains that Frank Mercurio told Officers Scola and Bento

immediately prior to her arrest that the plaintiff suffers from a

mental illness, and pleaded with them to allow him to transport

her to a nearby hospital for an evaluation. (Plaintiff’s SUF, at

¶ 41). The defendants state that they did not learn of the

plaintiff’s mental illness until sometime after arresting her.

(Defendants’ SUF, at ¶ 41).

Regardless, the plaintiff claims that she experienced a

psychotic episode when Officer Scola and Bento threw her to the

ground so they could handcuff her wrists. (Defendants’ SUF, at ¶

43; Plaintiff’s SUF, at ¶ 43). As a consequence, the plaintiff

was “in and out of reality” for the remainder of the evening and

could not remember portions of that evening. (Defendants’ SUF, at

¶¶ 44, 45; Plaintiff’s SUF, at ¶¶ 44, 45, 53).

II. THE COMPLAINT

The complaint contains nine counts. Count I alleges that all

of the individual defendants used excessive force, in violation of

42 U.S.C. § 1983.

Count II alleges that the Town of Sherborn failed to train

and supervise its police officers on the proper use of force in

violation of 42 U.S.C. § 1983.

Count III alleges that the defendants conspired to violate 42

U.S.C. § 1983.

Count IV alleges that the defendants violated the

Massachusetts Civil Rights Act, M.G.L. c. 12, § 11I.

Count V alleges false arrest against Officers Bento and Scola.

Count VI alleges malicious prosecution against all

defendants.

Count VII alleges that the Town of Sherborn has “vicarious

liability” for the acts and omissions of all of the individual

defendants.

Count VIII alleges intentional infliction of emotional

distress against all of the defendants.

Finally, Count IX alleges negligence against Officer

Tedstone.

III. LEGAL STANDARD

When the Court is presented with a motion for summary

judgment, it shall grant it “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

moving party bears the initial burden of “assert[ing] the absence

of a genuine issue of material fact and then support[ing] that

assertion by affidavits, admissions, or other materials of

evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003). Once the moving party meets that burden,

in order to avoid summary judgment, the opposing party must “show

that a factual dispute does exist, but summary judgment cannot be

defeated by relying on improbable inferences, conclusory

allegations, or rank speculation.” Fontanez-Nunez v. Janssen

Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (quoting Ingram v.

Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)). Indeed, the

opposing party must “produce specific facts, in suitable

evidentiary form, to establish the presence of a trialworthy

issue.” Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)

(quoting Triangle Trading Co. v. Robroy Indus. Inc., 200 F.3d 1,

2 (1st Cir. 1999)).

When determining whether summary judgment is appropriate, “a

court must view the record in the light most favorable to the

nonmoving party and give that party the benefit of all reasonable

inferences in its favor.” Id. (citing Nicolo v. Philip Morris,

Inc., 201 F.3d 29, 33 (1st Cir. 2000)). The Federal Rules require

“the entry of summary judgment, after adequate time for discovery

and upon motion, 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (citing Fed. R. Civ. P. 56)). “Where the record taken as

a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Scott v.

Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal

quotation marks omitted).

IV. ANALYSIS

As a threshold matter, the complaint names SPD Officer John

Coffey as a defendant but fails to allege any facts implicating

him in any aspect of the plaintiff’s arrest and/or subsequent

treatment. Similarly, the facts – both the undisputed and disputed

ones - evince no hint of Officer Coffey’s participation in any of

the underlying events, and the plaintiff was not able at oral

argument to articulate any act or omission by Officer Coffey that

might otherwise bring him within the scope of any of the

plaintiff’s claims. The record thus demonstrates Officer Coffey’s

entitlement to summary judgment on the merits as to all claims

against him. With respect to the remainder of the defendants, the

court reasons and rules as follows.

A. Count I – Section 1983 Excessive Force Claim

i. The Claim

Count I alleges under 42 U.S.C. § 1983 that SPD officers

violated the plaintiff’s constitutional rights by using excessive

force both during and after her arrest. More specifically, the

plaintiff contends that Officers Bento and Scola used excessive

force during her arrest when they threw her to the ground, placed

their knees on her back to handcuff her, and dragged her to the

police cruiser. She contends that Officer Tedstone also used

excessive force during the booking process when he pulled a chair

out from under the plaintiff while she was handcuffed to the Murphy

bar, which caused her to fall to the floor.

Section 1983 “is not itself a source of substantive rights,

but merely provides a method for vindicating federal rights

elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94

(1989). In order to prevail under section 1983, a plaintiff must

show that the defendants (1) acted under “color of state law,” and

(2) deprived [the] plaintiff of a right secured by the Constitution

or the laws of the United States. Budnick v. Baybanks, Inc., 921

F. Supp. 30, 32 (D. Mass. 1996).

Where, as here, an excessive force claim “arises in the

context of an arrest or investigatory stop of a free citizen, it

is most properly characterized as one invoking the protections of

the Fourth Amendment, which guarantees citizens the right to be

secure in their persons . . . against unreasonable . . . seizures.”

Torres-Rivera v. O’Neill-Cancel, 406 F.3d 43, 51 (1st Cir. 2005).

But, because “Fourth Amendment jurisprudence has long recognized

that the right to make an arrest [or seizure] necessarily carries

with it the right to use some degree of physical coercion or threat

thereof to effect it,” see Nolan v. Krajcik, 384 F. Supp. 2d 447,

463 (D. Mass. 2005)(quoting Graham, 490 U.S. at 396), the relevant

inquiry “is whether the force used was objectively reasonable under

all the circumstances, that is, whether it was consistent with the

amount of force that a reasonable police officer would think

necessary to bring the arrestee into custody.” Gaudreault v.

Municipality of Salem, 923 F.2d 203, 205 (1st Cir. 1990). In

making such a determination, the court should weigh “three non-

exclusive factors: (1) the severity of the crime at issue, (2)

whether the suspect poses an immediate threat to the safety of the

officers or others, and (3) whether [the suspect] is actively

resisting arrest or attempting to evade arrest by flight.” Raiche

v. Pietroski, 623 F.3d 30, 36 (1st Cir. 2010).

With respect to the plaintiff’s arrest, the defendants argue

that Officer Bento and Scola used an objectively reasonable amount

of force when they arrested the plaintiff because she actively

resisted arrest by tightening her arms, shaking, and twisting her

body. Assuming arguendo that such conduct on the plaintiff’s part

would justify the officers’ use of force, there is as noted above

a genuine dispute as to whether the plaintiff physically resisted

arrest. In particular, the plaintiff has, aside from her own

testimony, presented evidence that she did not resist arrest

through the deposition testimony of Frank Mercurio and Kimakhe,

both of whom were present at the time of the arrest. There is no

real dispute that the officers would not have been justified in

forcibly placing the plaintiff on the ground and dragging her to

the police car if she was already under control and not resisting.

See e.g., Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014)

(finding that it was reasonable for police to fire fifteen shots

during a high speed chase, but noting that it would be a “different

case” if the police had kept using force after the suspect was

incapacitated); Jennings v. Jones, 499 F.3d 2, 15-16 (1st Cir.

2007) (denying summary judgment because a reasonable jury could

find that police officer defendant increased pressure on

plaintiff's ankle after he stopped resisting, which would amount

to excessive force under the circumstances); Huckins v. McSweeney,

No. 11-cv-106-JD, 2012 WL 3308395, *3 (D.N.H. Aug. 13, 2012)

(testimony that defendant deployed taser after plaintiff was

already on ground raised triable issue of fact regarding whether

defendant used excessive force). Accordingly, there is a material

dispute of fact as to whether the officers used reasonable or

excessive force in arresting the plaintiff, rendering summary

judgment inappropriate.

With respect to the post arrest events at the police station,

the defendants argue similarly that Officer Tedstone did not use

excessive force when he pulled the chair out from under the

plaintiff, because the plaintiff refused to get onto a stretcher

despite Officer Tedstone’s repeated requests. The plaintiff

denies that she was uncooperative. A stationhouse video camera

captured the incident but there was no audio to indicate what if

anything Officer Tedstone or any of the several other individuals

present said to the plaintiff, or what if anything she said to

them. Consequently, even though there is no dispute that Officer

Tedstone caused the plaintiff to fall when he deliberately pulled

the chair out from under her, there is a dispute as to whether the

plaintiff was acquiescent or resistant. Because a jury could

conclude that Officer Tedstone used excessive force if it found

that the plaintiff was not resisting, summary judgment is

inappropriate on this prong of the excessive force claim as well.

ii. Qualified Immunity

The defendants argue that they enjoy qualified immunity for

their conduct even if they used excessive force. “The doctrine of

qualified immunity shields officials from civil liability so long

as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In determining

whether a defendant is entitled to qualified immunity, a court

should consider: “(1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right; and (2)

if so, whether the right was clearly established at the time of

the defendant’s alleged violation.” Ciolino v. Gikas, 861 F.3d

296, 303 (1st Cir. 2017). The second prong has two components:

“(a) whether the legal contours of the right in question were

sufficiently clear that a reasonable officer would have understood

that what he was doing violated the right, and (b) whether in the

particular factual context of the case, a reasonable officer would

have understood that his conduct violated the right.” Id.

Applied here, and considering the facts in the light most

favorable to the plaintiff as the non-moving party, the relevant

inquiry is (1) whether the officers should have known that using

strong physical force to arrest and then transport for treatment

a non-resistant suspect violated the suspect’s right to be free of

excessive force; and, if so, (2) whether a reasonable officer would

have understood that his conduct violated the right.

Regarding the plaintiff’s arrest, it is a close call, but the

court concludes that even if Officers Scola and Bento used

excessive force to subdue the plaintiff by bringing her to the

ground so they could handcuff her wrists, that use of force was

not so clearly excessive that a reasonable officer would know it

violated the plaintiff’s constitutional rights. In that regard,

there is no evidence or suggestion that either officer was seeking

to harm the plaintiff or to do anything other than effect an

arrest.

However, once the officers reportedly had the plaintiff on

the ground in handcuffs, that is, under control, if they then

dragged her along the ground and threw her into the car, that

wouuld be a different matter. A police officer may not use

unreasonable force on someone who is restrained and who has ceased

resisting, and the right to be free from such force was clearly

established at the time of this incident in 2012. See e.g., Alexis

v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341, 353 (1st Cir.

1995)(finding triable excessive force claim where officer dragged

non-resisting plaintiff from restaurant booth and pushed her into

police car even though the plaintiff posed no risk of flight and

was not resisting). Thus, a reasonable officer in Officers Bento

and Scola’s positions would have understood that such conduct was

a violation of the plaintiff’s rights.

The court concludes similarly with respect to Officer

Tedstone. If in fact the plaintiff, who was handcuffed to the

Murphy bar, was not resisting or acting uncooperatively when

Officer Tedstone approached her and pulled the chair out from under

her, it would seem apparent to any reasonable officer that such

conduct would be a violation of the plaintiff’s rights.

Consequently, where there is a genuine dispute of fact as to

whether the officers used excessive force once the plaintiff was

on the ground and in handcuffs, the defendants are not entitled to

qualified immunity.

B. Count II - The Monell Claim

Count II alleges under 42 U.S.C. § 1983 that the town of

Sherborn (1) failed to train its police officers on how to properly

effect an arrest where the arrestee may have a mental health

illness, and (2) failed to investigate instances of alleged police

misconduct. Neither theory of liability is tenable here because

the plaintiff has failed to adduce any evidence of such policy

related failures.

“[L]ocal governments can be held liable for alleged

unconstitutional deprivations when those deprivations arise from

a government policy or practice.” Cox v. Murphy, No, 12-11817-

FDS, 2016 WL 4009978, at *7 (D. Mass. Feb. 12, 2016) (citing Monell

v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978)).

Thus, a plaintiff is required to demonstrate that “(1) the

municipality had a custom, policy, or practice of failing to

investigate, discipline, supervise, or train its officers; (2)

this custom, policy, or practice was such that it demonstrated a

deliberate indifference to the rights of those citizens with whom

its officers came into contact; and (3) the custom, policy, or

practice was the direct cause of the alleged constitutional

violation.” Cox, 2016 WL 4009978 at *7 (citing DiRico v. City of

Quincy, 404 F.3d 464, 468-69 (1st Cir. 2005)).

With respect to the failure to train officers on how to

properly deal with suspects with mental health issues, the

plaintiff points in broad fashion to the general deposition

testimony of Officers Bento, Scola, and Tedstone, but tellingly

was not able when pressed to refer to any specific testimony

supporting her claim of a systemic failure to train officers. In

that regard, the court has also reviewed the officers’ deposition

testimony and finds in it no evidence to suggest that the town of

Sherborn failed to promulgate appropriate protocols or properly

train its police officers how to proceed in confrontations with

suspects who may have a mental health issue or illness.

Accordingly, as the plaintiff has failed to adduce evidence of a

relevant custom or policy, let alone a policy responsible for the

plaintiff’s alleged maltreatment, summary judgment must enter in

the Town’s favor on this ground. Murphy v. City of Newton, No.

15-12694, 2017 WL 6329614, at 9 (D. Mass. Dec. 11, 2017)(noting

that the plaintiff’s failure to identify “a specific policy or

custom responsible for the deprivation of his constitutional

rights . . . is fatal to his [Monell] claim.”).

A similar fate for similar reasons befalls the plaintiff’s

claim of a municipal policy of failing to investigate instances of

alleged police misconduct. The plaintiff contends that Officer

Scola’s police report from the incident provides evidence of such

a failure because it does not mention Officer Tedstone’s alleged

misconduct in pulling the chair from under the plaintiff. The

plaintiff reasons that an officer’s report should properly report

on another officer’s misconduct and that, assuming Officer

Tedstone’s conduct amounted to misconduct, Officer Scola’s report

should have mentioned it. Because it did not, so the plaintiff

argues, the omission should be seen as prima facie evidence of a

“code of silence” among the SPD and the Town to bury instances of

misconduct. The court rejects this argument. Assuming arguendo

that Officer Scola (or some other officer) should have

appropriately mentioned the chair incident in his report, it just

does not follow that the failure to do so necessarily evinces a

municipal policy to conceal such incidents from the public light

or scrutiny. Indeed, Officer Scola might have plausibly simply

forgotten to include the incident, or may have determined that it

was not significant enough to include in his report. Without more

evidence, the plaintiff’s speculative conjecture is insufficient

to allow this claim to proceed further. Grassia v. Piers, 735 F.

Supp. 2d 1, 10 (D. Mass. 2010)(granting summary judgment on the

Monell claim where the plaintiff’s theory of liability was

“conclusory”). In short, the Town is entitled to summary judgment

on Count II.

C. Count III - Conspiracy

Count III alleges that the defendants conspired to violate

the plaintiff’s constitutional rights. A plaintiff alleging a

conspiracy claim under section 1983 must show “a combination of

two or more persons acting in concert to commit an unlawful act,

or to commit a lawful act by unlawful means, the principal element

of which is an agreement between the parties to inflict a wrong

against or injury upon another, and an overt act that results in

damages.” Estate of Bennett v. Wainwright, 548 F.3d 155, 178 (1st

Cir. 2008). “While a conspiracy may be established by implication

through circumstantial evidence, summary judgment is warranted

where the non-moving party relies solely on conclusory allegations

and presents no evidence, either direct or circumstantial of an

agreement among defendants from which a reasonable jury could

[infer the existence of] a conspiracy among them.” Turkowitz v.

Town of Provincetown, 914 F. Supp. 2d 62, 74 (D. Mass. 2012).

That is the case here. The crux of the plaintiff’s conspiracy

claim, in essence, is that all of the individual defendants must

have participated “in concert” because they were all around when

the arrest and booking took place. (Dkt. No. 72). Without more,

such a conclusory assertion is just not enough to maintain a

viable conspiracy claim beyond summary judgment. See e.g., Martin

v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 547 (D.N.J.

2013)(“[I]t is not enough . . . that the end result of the parties’

independent conduct caused plaintiff harm or even that the alleged

perpetrators of the harm acted in conscious parallelism . . .

[r]ather the plaintiff bears the burden of showing that the alleged

conspirators reached an understanding, or had a meeting of the

minds to violate his rights.”); Deakins v. Pack, 957 F. Supp. 2d

703, 760 (S. D. W. Va. 2013)(granting summary judgment on the

conspiracy claim where plaintiff failed to produce any evidence

showing that the defendants conspired to use excessive force and

to remain silent); DeMeo v. Kean, 754 F. Supp. 2d 435, 446

(N.D.N.Y. 2010)(granting summary judgment where the plaintiff

failed to show “any discussion, offer to assist, request for

assistance, or other indication of an agreement” between the

defendants). Summary judgment will therefore enter for the

defendants on Count III.

D. Count IV - MCRA

Count IV alleges that the defendants’ collective conduct

violated the Massachusetts Civil Rights Act, M.G.L. c. 12, §11I

(“MCRA”). Under the MCRA, “persons” who either attempt to, or

actually do “interfere by threats, intimidation or coercion” with

another person’s “exercise or enjoyment” of a state or federal

constitutional right violate the statute. M.G.L. c. 12, § 11H;

Titus v. Town of Nantucket, 840 F. Supp. 2d 404, 416 (D. Mass.

2011). Where, as here, the MCRA claim is asserted alongside a

section 1983 claim, the “plaintiff must establish threats,

coercion, or intimidation in addition to a constitutional

violation.” Santiago v. Keyes, 890 F. Supp. 2d 149, 155 (D. Mass.

2012)(emphasis in original).

Applied here, Count IV fails as alleged against the Town

because the MCRA applies to “persons” only, and not municipalities,

and the Town therefore cannot be held liable for violating the

statute. See Watson v. Mita, No. 16-40133-LTS, 2017 WL 4365986,

at *3 (D. Mass. Sept. 29, 2017) (“it is well settled that a

municipality cannot be held liable under the [MCRA]”).

As to the individual defendants, they argue that the MCRA

claim fails because their conduct did not involve any threats,

coercion, or intimidation. The plaintiff argues that she has

produced evidence of coercive or threatening behavior where she

has produced evidence that Officers Bento and Scola used excessive

force to get her to “surrender” to the arrest.

However, even accepting that any arrest attended by force is

intrinsically coercive, “there still must be under MCRA some

allegation that the defendant’s conduct was intended to coerce

[the plaintiff] into refraining from the exercise of a right or

privilege secured by law.” Barbosa v. Conlon, 962 F. Supp. 2d

316, 332 (D. Mass. 2013). Resisting the arrest itself cannot

constitute the requisite “right or privilege” in this context,

even if the suspect believes the arrest is illegal, because

“[t]here is no right under state or federal law to resist an arrest

or search, even one that is illegal from its inception.” Farrah,

725 F. Supp. 2d at 248. For that reason, the majority of courts

have held that an allegation of excessive force or wrongful arrest

does not, standing alone, give rise to a claim under the MCRA.

Ciolinio v. Eastman, 128 F. Supp. 3d 366, 380 (D. Mass. 2015).

Accordingly, although the plaintiff here has adduced

sufficient evidence to proceed to trial on a claim of excessive

force, that same evidence is insufficient by itself to sustain a

claim under the MCRA. See e.g., Ciolino, 128 F. Supp. 3d at 381

(allowing excessive force claim to go forward but granting summary

judgment on MCRA claim where plaintiff failed to produce evidence

of threats, intimidation or coercion); Titus, 840 F. Supp. 2d at

416 (same); Orwat v. Maloney, 360 F. Supp. 2d 146, 164 (D. Mass.

2005)(same). Judgment will therefore enter in the defendants’

favor on Count IV.

E. Count V - False Arrest

Count V alleges a claim of false arrest against Officers Scola

and Bento. The court finds that there are disputes of fact

material to the plaintiff’s false arrest claim, rendering summary

judgment inappropriate.

Under Massachusetts law, a plaintiff alleging false arrest

must show in order to prevail that “(1) the defendant[s] intended

to confine the plaintiff, (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the confinement,

and (4) the defendant had no privilege to cause the confinement.”

Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 n.6 (1st Cir.

1995). However, “unlike a section 1983 claim, the defendant in a

false arrest claim based upon a warrantless arrest bears the burden

of proving the presence of probable cause to justify the arrest.”

Felix v. Lugas, No. CIV. A. 00-122250-DPW, 2004 WL 1775996, at

*6 (D. Mass. Mar. 2, 2004). Probable cause to arrest exists when

the facts and circumstances known to the police officers at the

moment of the arrest were sufficient to warrant a person of

reasonable caution in believing that the defendant had committed

or was committing a crime. Jenkins v. Chief Justice of the

District Court Dept., 416 Mass. 221, 242 (1993). “The probable

cause standard is a relatively low threshold for police officers

to establish.” Barbosa, 962 F. Supp. 2d at 334-35.

In the instant case, Officers Bento and Scola insist that

they saw the plaintiff strike her husband in the face, which in

turn gave them probable cause to arrest her for assault.

Contrarily, the plaintiff has adduced evidence through her own

testimony as well as that of Kimakhe that she did not strike him

in the face. Consequently, summary judgment is not appropriate

because the conflicting versions of events raise a genuine issue

as to whether the plaintiff struck her husband and thereby gave

the police officers probable cause to arrest her. Eason v. Alexis,

824 F. Supp. 2d 236, 241 (D. Mass. 2011); see also Davila-Lynch v.

City of Brockton, No. 09-10817-RGS, 2011 WL 4072092, at *5 (D.

Mass. Sept. 12, 2011)(dispute as to whether suspect was intoxicated

or not at the time of the arrest precluded summary judgment as to

probable cause). The motion for summary judgment is therefore

denied with respect to Count V.

F. Count VI - Malicious Prosecution

Count VI alleges a claim of malicious prosecution against all

defendants. In order to prevail on such a claim a plaintiff must

show: “(1) the commencement or continuation of a criminal

proceeding against the eventual plaintiff at the behest of the

eventual defendant; (2) the termination of the proceeding in favor

of the accused; (3) an absence of probable cause for the charges;

and (4) actual malice.” Nieves v. McSweeney, 241 F.3d 46, 53 (1st

Cir. 2001). “In broad brush, an individual may be said to have

instituted criminal proceedings against another if he caused those

proceedings to be initiated.” Limone v. U.S., 579 F.3d 79, 89

(1st Cir. 2009). Generally, this is found where the defendant

“induces another person to lodge formal criminal charges,” and

“exercises a peculiar degree of control over the charging official

or adamantly presses that official to bring a criminal complaint.”

Id. The plaintiff contends that the defendants instituted criminal

proceedings against her with malice and without probable cause,

and she notes in particular that all charges lodged against her

following her arrest were subsequently dismissed. The claim is

without merit.

The claim fails against the Town because a municipality as a

public employer is immune from suit under the Massachusetts Torts

Claim Act (MTCA) for the intentional torts of its employees acting

within the scope of their duties. M. G. L. c. 258, § 10; Petricca

v. City of Gardner, 429 F. Supp. 2d 216, 224 (D. Mass. 2006).

The claim fails against the SPD officers because the plaintiff

has not adduced any evidence to suggest that the defendants

initiated the criminal charges against the plaintiff, or that they

induced the entity that did – the Middlesex County District

Attorney’s Office – to initiate charges against her, or that the

defendants exercised any control over the prosecutor’s office.

See Kennedy v. Town of Billerica, 502 F. Supp. 2d 150, 160 (D.

Mass. 2007)(granting summary judgment on malicious prosecution

claim where there was no evidence that defendant officers were

responsible for instituting criminal proceedings); Mitchell v.

City of Boston, 130 F. Supp. 2d 201, 215 (D. Mass. 2001)(granting

summary judgment on malicious prosecution claim where there was no

evidence that arresting officers did anything beyond arresting and

booking of plaintiff); compare, Petricca, 429 F. Supp. 2d at 225

(denying summary judgment where plaintiff produced evidence that

city commissioner knowingly falsified statements under oath in

support of criminal complaint).

Summary judgment will therefore be granted for all defendants

on Count VI.

G. Count VII - Vicarious Liability

Count VII of the complaint is entitled “vicarious liability”

and seeks to hold the Town liable for the acts of the individual

defendants. Under the doctrine of respondeat superior, a

municipality may be held vicariously liable for the negligent acts

or omissions of its employees carried out within the scope of their

employment. Petrell v. Shaw, 453 Mass. 377, 384 (2009). However,

vicarious liability is a theory of liability; it is not in and of

itself an independent cause of action. See II Palazzo Corp. v.

City of Worcester, No. 031022, 2009 WL 2506267, at *3 (Mass. Sup.

Ct. 2009)(“the claim of respondeat superior is not an independent

cause of action upon which relief can be granted”). Count VII

therefore fails to assert a valid claim and summary judgment will

be granted on Count VII.

H. Count VIII - Intentional Infliction of Emotional Distress

Count VIII alleges that the defendants intentionally

inflicted emotional distress on the plaintiff by virtue of their

maltreatment of her during the arrest and booking process. In

order to prevail on a claim of intentional infliction of emotional

distress, a plaintiff must show that: “(1) the defendant intended

to inflict emotional distress, or knew or should have known that

emotional distress would likely result, (2) the defendant’s

conduct was extreme and outrageous to the extent that it was

utterly intolerable in a civilized society, (3) the defendant’s

conduct caused the plaintiff’s distress, and (4) the plaintiff

sustained severe emotional distress.” Johnson v. Town of

Nantucket, 550 F. Supp. 2d 179, 183 (D. Mass. 2008).

With respect to the Town, the claim fails on its face because

the Town is immune from suit under the MTCA for the intentional

torts of its employees. Canales v. Gatzunis, 979 F. Supp. 2d 164,

175 (D. Mass. 2013)(dismissing the plaintiff’s intentional

infliction of emotional distress claim as alleged against the

municipality on the grounds that the municipality is immune from

suit for the intentional torts of its employees under the MTCA).

The claim survives summary judgment against the officers,

however. As noted above, the plaintiff has adduced evidence that

the officers arrested her without cause and used excessive force,

and the plaintiff’s psychiatrist, Dr. Kate Irwin,3 opined in a

report that the plaintiff was traumatized as a result of the

events. Because a jury could conclude from these facts that the

officers intended by virtue of their conduct to inflict emotional

distress upon the plaintiff, summary judgment is inappropriate.

See Poy v. Boutselis, 352 F.3d 479, 485-86 (1st Cir.

3 The defendants object to the court’s consideration of Dr. Erwin’s report on

various grounds, including that the plaintiff provided the court with a

different version of Dr. Erwin’s report than she provided to the defendants.

In particular, the version given to the defendants contains a paragraph setting

forth Dr. Erwin’s opinion that the SPD officers who interacted with the

plaintiff “failed to recognize mental health symptoms” when they first

encountered the plaintiff, and “compounded” her trauma with their “excessive

physical control” of the plaintiff, which was moreover “exacerbated when the

chair was pulled out from underneath her while she was handcuffed to the Murphy

bar.” That paragraph does not appear in the version submitted to the court.

The dissonance between the two versions, while concerning, does not bear on the

court’s summary judgment analysis so it is not necessary at this specific point

to determine how or why this happened. Should the plaintiff seek to have Dr.

Erwin testify at trial, however, further inquiry may be appropriate if not

unavoidable.

2003)(upholding jury verdict in favor of plaintiff’s intentional

infliction of emotional distress claim where defendants used

excessive force in arresting plaintiff).

I. Count IX - Negligence

Count IX alleges that Officer Tedstone acted negligently when

he removed the chair from under the plaintiff and caused her to

fall to the floor. This claim fails as a matter of law, though,

because the MTCA shields a public employee from liability “for any

injury or loss of property or of personal injury or death caused

by his negligent or wrongful act or omission acting within the

scope of his office or employment.” M.G.L. c. 258, § 2. As there

is no dispute here that Officer Tedstone was acting within the

scope of his employment at the time of the relevant events, he is

shielded from liability and entitied to summary judgment.

V. CONCLUSION

For the reasons stated above, the Defendant’s Motion for

Summary Judgment (Dkt. No. 57) is GRANTED IN PART and DENIED IN

PART. Specifically, the motion for summary judgment is granted in

favor of the Town and the individual defendants on Counts II, III,

IV, VI, VII and IX, and in whole as to Officer Coffey. The motion

is granted on Count I (excessive force claim) with respect to all

of the events occurring up the point the plaintiff was placed in

handcuffs, but denied with respect to all of the events following

the plaintiff’s arrest, that is, the events occurring after she

was placed on the ground in handcuffs. The motion is denied as to

Count V (false arrest) and Count VIII (intentional infliction of

emotional distress).

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: December 19, 2017