Hutchins v. City of Springfield

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LEE HUTCHINS, SR., )

Plaintiff, )

)

v. )

)

) C.A. No. 3:16-cv-30008-MAP

DANIEL J. MCKAY, FELIX )

M. ROMERO, THOMAS )

HERVIEUX, and THE CITY )

OF SPRINGFIELD, )

Defendants. )

MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND

DEFENDANT CITY’S MOTION TO BIFURCATE

(Dkt. Nos. 29, 31, & 32)

January 16, 2018

PONSOR, U.S.D.J.

I. INTRODUCTION

This lawsuit asserts claims under the federal civil

rights statute, 42 U.S.C. § 1983, and Massachusetts common

law against three Springfield police officers and the City

of Springfield. In Counts 1 through 3, Plaintiff alleges

that the individual Defendant officers violated his federal

civil rights by unlawfully entering his home, falsely

arresting him, and using excessive force. In Count 4,

Plaintiff alleges that Defendant City of Springfield

maintained policies or customs that were deliberately

indifferent to the rights of civilians by failing to train

and discipline its police officers and that these policies

or customs proximately caused his injuries. In Counts 5

through 8, Plaintiff asserts common law claims of assault

and battery, false arrest, malicious prosecution, and abuse

of process against the individual Defendant officers.

Plaintiff has filed a motion for summary judgment on

Count 1, contending that the undisputed facts confirm that

two of the individual Defendant officers violated his rights

under the Fourth Amendment by unlawfully entering his home.

Defendants have moved for summary judgment on all eight

counts of the complaint. To the extent that some counts

survive their motion, Defendants have also moved for

bifurcation of the sole claim against the City of

Springfield, Count 4, from the counts against the individual

officers.

For the reasons set forth below, Plaintiff's motion for

summary judgment on Count 1 will be denied. Defendants’

motion for summary judgment will be denied as to Counts 1,

3, 4, 5, 7, and 8, and will be allowed as to Counts 2 and 6.

2

Defendant City’s motion to bifurcate will be allowed, but on

the understanding that trial on Count 4 against the City

will proceed first, with the trial against the individual

officers to follow.

II. BACKGROUND

The facts are drawn from the full summary judgment

record. They are recited in the light most favorable to the

non-moving party, and all justifiable inferences are drawn

in that party’s favor. Tolan v. Cotton, 134 S. Ct. 1861,

1863 (2014). Where, as here, both parties have moved for

summary judgment, the standard is the same. The court must

rule on each party's motion on an individual and separate

basis. Bienkowski v. Ne. Univ., 285 F.3d 138, 140 (1st Cir.

2002). For each claim, summary judgment is warranted if the

record, viewed in the light most favorable to the non-moving

party, discloses no genuine issue of material fact.

Kunelius v. Town of Stow, 588 F.3d 1, 8-9 (1st Cir. 2009).

On the day of the precipitating incident, January 20,

2013, Plaintiff Lee Hutchins, Sr., owned a three-story, two-

family home at 51-53 Daytona Street in Springfield. There

were two entrances at the front of the house. The left

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entrance, 51 Daytona Street, belonged to Plaintiff's tenant.

The right entrance was for 53 Daytona Street, where

Plaintiff lived with his family.

Upon passing through the doorway on the ground level, a

person entering 53 Daytona Street would go up an interior

flight of stairs to a landing on the second floor. That

door opened directly into Plaintiff's kitchen. The street-

level entrance to 53 Daytona Street provided no access to

any other living unit; the interior staircase was part of

Plaintiff’s residence, not a common passage. In other

words, when someone entered the ground floor entrance of 53

Daytona Street, he or she was facing a staircase but inside

Plaintiff’s home.

At the back of 53 Daytona Street, another set of stairs

connected the basement to the second-floor kitchen. A third

set of stairs, also in the back, connected the second floor

to the third floor. Plaintiff's son, Keith Hutchins, had a

bedroom in the basement. Plaintiff's son, Lee Hutchins,

lived in one of the third-floor bedrooms. For ease of

reference, Lee Hutchins, Sr., will be referred to in this

memorandum as “Plaintiff,” and his son as “Lee Hutchins” or

4

“Lee.”

Around midnight on January 20, 2013, Defendants Daniel

McKay and Felix Romero, Springfield police officers, were

dispatched to assist Vanessa Romero in retrieving her two-

year-old son Ivan from the boy’s father, Lee Hutchins.

Defendants followed Vanessa's vehicle to 53 Daytona Street.

They either knocked on the ground-floor door or rang the

doorbell, waking up Plaintiff as well as other occupants of

the residence. According to Plaintiff, his stepson, Tyshon

Faust, answered the door. The officers did not recall the

name of the person at the door, but Defendant McKay

testified that he was “very civil” and “said they'd be right

down with the child.” (McKay Dep., Dkt. No. 31-5 at 8-9.)

The ground-floor front door was left open while Tyshon went

upstairs to alert the household. (Romero Dep., Dkt. No. 31-

4 at 4.) Tyshon did not invite the officers to enter.

Tyshon went to Plaintiff's second-floor bedroom and

told him the police were at the door. Meanwhile, after

waiting outside for approximately ten minutes, Defendants

McKay and Romero entered 53 Daytona Street through the

ground-floor door, climbed the stairs to the second floor,

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and knocked on the interior door there.

Exactly why Defendant officers entered the premises is

unclear, and what their assumptions were in doing so is

disputed. In his deposition, Defendant McKay stated that,

during their ten-minute wait outside, the officers “tried

re-establishing contact from the base of the stairwell.

When we received no response, we went to the top of the

stairwell and knocked on the door there.” (McKay Dep., Dkt.

No. 31-5 at 9.)

Accepting the officers’ testimony, it is possible to

conclude that they mistakenly, but reasonably, believed that

the interior stairwell leading from the street entry to the

second floor was a common area outside Plaintiff’s home.

Defendant Romero stated at his deposition that when they

reached the second-floor landing they “decided to knock on

the apartment door,” (Romero Dep., Dkt. 31-4 at 5) and that

the two officers remained outside the “apartment” through

the interchange. (Id.) This testimony suggests that

Defendant Romero did not believe he was entering Plaintiff’s

living area by going up the stairs. Similarly, Defendant

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McKay stated in his affidavit in opposition to Plaintiff’s

motion for summary judgment that a common layout of

buildings like 51/53 Daytona Street included one downstairs

apartment and two second-floor apartments served by a common

staircase. (McKay Aff. ¶ 6, Dkt. No. 51-1 at 2-3.) He

stated explicitly that “[a]t the time that we went up the

stairs and had our conversation with the Plaintiff, we

believed we were in a common area of the building, not

within an individual apartment.” (Id. at ¶ 7.)

At any rate, Defendants McKay and Romero were standing

on the second-floor landing outside the interior door when

Plaintiff opened it and asked, “Can I help you?” When told

the officers were there to collect the child Ivan, Plaintiff

said that he would “be right back” with the child. (Pl.’s

Statement of Undisputed Facts, ¶ 37, Dkt. No. 33-1 at 46-

47.)

What happened next is disputed. The testimony of

Romero and McKay was that they never entered into the

apartment area from the second-floor landing. (Romero Dep.,

Dkt. No. 31-4 at 5; McKay Aff. ¶ 7, Dkt. No. 51-1 at 3.)

Plaintiff’s version, on the other hand, is that when

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Plaintiff’s son Keith came up the back stairs from his

basement bedroom, he found McKay and Romero standing “at the

door frame which is in the kitchen.” (Keith Hutchins Dep.,

Dkt. No. 33, Ex. C at 36.) He became angry, telling them,

“You have no warrant. You got to go outside.” (Id. at 38.)

Plaintiff himself, when he returned with Ivan, found

that the two officers “were in the kitchen and they were

arguing with my son Keith.” (Pl.’s Dep., Dkt. No. 31-9 at

16.) Confusion on this point is worse confounded by

Defendants’ submission, citing Plaintiff’s deposition, which

seems to concede that “McKay and Romero were already in the

kitchen when Plaintiff returned from the 3rd floor with

Ivan.” (Dkt. No. 31-1 at 4.) For purposes of Plaintiff’s

motion for summary judgment on Count 1, this memorandum

assumes the officers stayed on the second-floor landing

outside the kitchen, per Romero’s deposition and the McKay

affidavit.

When Plaintiff’s son Lee woke up and learned that his

son’s mother, Vanessa Montero, was at the residence with two

police officers to collect their son Ivan, he became upset.

Defendants McKay and Romero heard Lee say he was going to

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“fuck that bitch up” before running out the back door.

(McKay Dep., Dkt. No. 31-5 at 9.) Lee ran down the back

stairs to confront Montero, who had been left unattended on

the porch. Plaintiff's other son, Keith, then ran down the

front stairs to the outside.

Defendants McKay and Romero followed and came upon Lee

and Keith engaged in a verbal confrontation with Montero.

Whether this involved physical contact is disputed. (Pl.’s

Response to Defs.’ Statement of Undisputed Material Facts ¶

32-33, Dkt. No. 43 at 4-5.) Defendant Romero told Lee that

if he continued, he would be placed under arrest. Defendant

Romero then grabbed Lee, attempting to take him into

custody, and a struggle ensued. Plaintiff emerged onto the

porch at this time and tried, without success, to calm his

sons down. Keith entered the fray on Lee’s side in the

struggle with Romero, and Lee eventually broke free and fled

the scene.

During the ensuing fracas, Defendant McKay began

striking Keith with his baton. Plaintiff approached the

struggling men and, by his own admission, grabbed the end,

or tip, of McKay’s baton. (Pl.’s Dep., Dkt. No. 33-1 at

9

86.) Plaintiff contends that, in grabbing the baton, he was

attempting to stop Defendant McKay from errantly striking

Defendant Romero and to assist in bringing Keith under

control.

In response to Plaintiff grabbing the end of his baton,

Defendant McKay maced Plaintiff. Plaintiff stumbled back.

He was then struck twice in the back by Defendant

Springfield police officers Hervieux and his partner

Christopher Goodrow, who had just arrived on the scene.

Plaintiff was subsequently handcuffed and transported to the

police station.

In his police report, Defendant McKay described

Plaintiff as engaging in disorderly conduct, committing two

counts of assault and battery on a police officer, and

resisting arrest. The report served as the basis for the

eventual criminal charges leveled against Plaintiff. On

September 10, 2014, a jury acquitted Plaintiff of all

charges against him.

This lawsuit followed. On March 10, 2017, Plaintiff

and Defendants filed their motions for summary judgment,

Plaintiff as to Count 1 and Defendants as to all eight

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counts. (Dkt. Nos. 29 and 31.) Defendant City of

Springfield also filed a Motion to Bifurcate. (Dkt. No.

32.)

III. DISCUSSION

A motion for summary judgment can only be allowed if

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show 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).

42 U.S.C. § 1983 states, in relevant part,

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State …

subjects, or causes to be subjected, any citizen of the

United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. ...

To establish a § 1983 violation, a plaintiff must

demonstrate a deprivation of a federally protected right

perpetrated by a person acting under color of law. Sanchez

v. Pereira-Castillo, 590 F.3d 31, 51-2 (1st Cir. 2009).

The discussion below will begin with Plaintiff's motion

11

for summary judgment, then move to Defendants' motion for

summary judgment, and finally to Defendant City’s motion for

bifurcation.

A. Plaintiff’s Motion for Summary Judgment on Count 1

Plaintiff contends that the undisputed facts, even

viewed in the light most favorable to Defendants, entitle

him to summary judgment on his claim for violation of his

rights pursuant to the Fourth Amendment. His argument is

straightforward: the officers had no legal authorization to

enter his home when they stepped through the ground-floor

entrance and proceeded up the staircase to the second floor.

Plaintiff’s motion is anchored on the well-established

principle that an unauthorized intrusion by police officers

into a home is “the chief evil against which ... the Fourth

Amendment is directed.” Payton v. New York, 445 U.S. 573,

586 (1980) (internal quotation omitted). It is undisputed

that the street-level door marked the perimeter of

Plaintiff’s home. Since it is also undisputed that McKay

and Romero passed through that door without a warrant or

other legal justification, their action, Plaintiff argues,

constituted a violation of the Fourth Amendment as a matter

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of law.

This is a powerful argument. The First Circuit has

noted that an occupant’s “privacy interest in the foyer” of

a building is “linked to the proper characterization of the

building itself.” United States v. Werra, 638 F.3d 326, 331

(1st Cir. 2011) (quotation marks and citation omitted). See

also United States v. Rheault, 561 F.3d 55 (1st Cir.

2009)(finding that plaintiff had a reasonable expectation of

privacy in a small entryway because “no one else would be in

that entryway without their permission”).

Plaintiff’s argument has force and may well carry the

day at trial, but it falls short of justifying entry of

summary judgment when the facts are viewed in the light most

favorable to McKay and Romero. The text of the Fourth

Amendment confirms that it forbids only “unreasonable”

searches and seizures. Thus, in some circumstances, where

an officer makes a reasonable mistake of fact, no violation

of the Fourth Amendment will result. Heien v. North

Carolina, 135 S. Ct. 530, 534 (2014)(stating that a search

or seizure “may be permissible even though the justification

for the action includes a reasonable factual mistake”);

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United States v. Salimonu, 182 F.3d 63, 76 (1st Cir. 1999)

(Lipez, dissenting)(recognizing that the Fourth Amendment is

not violated by a warrantless search “if the police

mistakenly, but reasonably, believed that the consenting

party had actual legal authority to consent to the search”

(citation omitted)).

Under this standard, the test is not whether officers

coming into a building correctly concluded that they were in

a common area and not entering an individual’s home, but

rather whether they were reasonable in making this

assumption. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990)

(“Because many situations which confront officers in the

course of executing their duties are more or less ambiguous,

room must be allowed for some mistakes on their part. But

the mistakes must be those of reasonable men [sic], acting

on facts leading sensibly to their conclusions of

probability.”(internal quotation omitted)).

Resolution of whether McKay and Romero made a

reasonable mistake of fact when they entered the street-

level door to 53 Daytona Street -- like assessments of

reasonableness generally -- must await development at trial

14

and resolution by the jury, or possibly the court. A

factfinder may conclude that the officers’ mistake was not

reasonable, or that the officers, contrary to their

testimony, entered the kitchen from the second-floor landing

without authorization, an act that could not be dismissed as

a mistake. These issues must await further proceedings.

It is worth pausing to note that other arguments

offered by Defendants in opposition to Plaintiff’s motion

have little traction.

The fact that the officers were not actively

investigating a crime would not justify an unreasonable

intrusion onto Plaintiff’s property if it occurred. Such a

rule would create a gaping hole in Fourth Amendment

protections, and no authority supports it.

Nor will the record support any argument that the

officers received the level of explicit, voluntary consent

to enter the premises that the Fourth Amendment requires.

United States v. Diaz, 494 F.3d 221, 225 (1st Cir. 2007).

Defendants’ contention that the officers, to the extent

that they violated Plaintiff’s constitutional rights,

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enjoyed the protection of qualified immunity will not wash,

for two reasons.1

First, if the officers merely made a reasonable mistake

of fact -- and this question must await trial -- they have

no need of qualified immunity. They committed no violation

of the Fourth Amendment, period. On the other hand, if

their mistake is found to be not reasonable, then their

entry through the street-level door into Plaintiff’s

dwelling constituted a violation of clearly established

Fourth Amendment law. No principle of qualified immunity

will protect them.

Second, the undisputed facts of record will not support

an invocation of qualified immunity based on the “community

caretaking” exception to the Fourth Amendment. This

exception exempts from Fourth Amendment liability

1 Plaintiff has moved to strike Defendant City's

Opposition on this point. (Dkt. No. 54). Plaintiff points

out that the City is not named in Count 1 and that

Defendants McKay and Romero “are perfectly capable of

defending themselves.” (Id. at 2-3.) It is true that the

City’s counsel is, perhaps, doing the work of counsel for

the individual Defendant officers, who, unlike the City, are

entitled to assert a qualified immunity defense. But, the

argument deserves to be addressed, regardless of who raised

it.

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warrantless searches undertaken while engaging in functions

“totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a

criminal statute.” United States v. Tibolt, 72 F.3d 965,

969 (1st Cir. 1995)(quoting Cady v. Dombrowski, 413 U.S.

433, 441 (1973)).

The most helpful recent case on this exception is

MacDonald v. Town of Eastham, 745 F.3d 8 (1st Cir. 2014).

There, the court confronted a situation where the police

were responding to a call from a party concerned that a

neighbor’s door had been standing open for some time, and no

one was home. The police arrived and announced themselves

outside the home. When no one responded, they entered

through the open door to see if there was some problem.

Judge Selya noted that, even in this compelling situation,

the law was unclear as to whether the entry was justified

under the “community caretaker” exception. Nevertheless, he

concluded that, given the “nebulous” boundaries of the

exception, the officers had qualified immunity, as a

reasonable officer would not have known, in that factual

context, that he was violating a clearly established

17

constitutional right. Id. at 14.

The undisputed record in this case, however, presents a

factual landscape dramatically beyond the boundaries of the

“community caretaking” doctrine, however nebulous the

doctrine might be at its edges. Even assuming that the

doctrine is invokable in the First Circuit outside the

context of automobile searches (which, as Judge Selya noted

in MacDonald, is uncertain), the scenarios where the

doctrine has been successfully applied to a home feature

several typical elements: first, a reasonably perceived duty

on the part of the officer to approach the residence in the

name of safety (e.g., responding to a call from a concerned

neighbor and finding the door to the house standing wide

open); second, an attempt by officers to announce themselves

prior to entering; and third, the absence of occupants to

grant or deny officers permission to enter. See id. at 14-

15.

Here, the officers were not confronting any

mysteriously open door. The officers had no “reasonable

belief” of wrongdoing or imminent danger that required their

involvement. U.S. v. Pena, 924 F. Supp 1239, 1247 (D. Mass.

18

1996) (quoting Maryland v. Buie, 494 U.S. 325, 327 (1990)).

A civil and cooperative occupant of the house promptly

answered their knock, but gave no invitation to enter, or

consent to an entry. No evidence presented itself of any

problem whatsoever requiring a non-investigative inquiry.

Nevertheless, the officers simply walked in. To hold in

these circumstances that the officers did not violate any

clearly established constitutional rule would be a betrayal

of the bedrock principle at the foundation of the Fourth

Amendment, the protection of the home.

For the foregoing reasons, the court will deny

Plaintiff's Motion for Summary Judgment on Count 1, on the

narrow ground that a reasonable factfinder could conclude,

viewing the facts in the light most favorable to Defendants,

that McKay and Romero reasonably believed that the interior

staircase was a common area outside Plaintiff’s home and

that neither of them entered the kitchen.

B. Defendants’ Motions for Summary Judgment

1. Count 1: § 1983 Unlawful Entry

As the analysis above makes clear, the facts viewed in

the light most favorable to Plaintiff, rather than

19

Defendants, require denial of Defendants’ motion on this

count. A reasonable factfinder could conclude that the

officers did not make a reasonable mistake when they entered

the street-level door of Plaintiff’s residence, or that they

unjustifiably entered Plaintiff’s kitchen without legal

authorization.

2. Counts 2 and 6: § 1983 False Arrest and Common Law

False Arrest and False Imprisonment

Under Massachusetts law, a police officer may arrest

without a warrant for a misdemeanor which: “(1) involves a

breach of the peace[,] (2) is committed in the presence or

view of the officer, and (3) is still continuing at the time

of the arrest.” Commonwealth v. Gorman, 288 Mass. 294, 297

(1934) (citations omitted)). Under Mass. Gen. Laws ch. 265,

§ 13D, a person commits the offense of assault and battery

on a police officer if he engages in “purposeful and

unwelcomed contact with a person the defendant knows to be a

law enforcement officer actually engaged in the performance

of official duties.” United States v. Santos, 363 F.3d 19,

23 (1st Cir. 2004) (internal quotation omitted)).

Defendants argue that they are entitled to summary

20

judgment as the events that occurred outside Plaintiff’s

home gave them probable cause to arrest Plaintiff on January

20, 2013.

Applying these standards to the undisputed facts, the

court must conclude that, since the officers had probable

cause to arrest Plaintiff, Defendants are entitled to

summary judgment on Counts 2 and 6. Plaintiff does not

contest that he grabbed Defendant Officer McKay's baton.

(Dkt. No. 45 at 6.) His argument that he was entitled to

use reasonable force to help his son, or protect himself,

against excessive force by the officers assists him (as will

be seen below) in regard to his claims of excessive force,

but his decision to intervene and seize the officer’s baton

gave the officers probable cause, both under the federal

constitution and the common law, to place him under arrest.

The court will therefore allow Defendants’ motion as to

Counts 2 and 6.

3. Counts 3 and 5: § 1983 Excessive Force and Common

Law Assault and Battery

“Excessive force civil rights claims are properly

analyzed under the Fourth Amendment's 'objective

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reasonableness' standard, rather than under a substantive

due process standard.” Graham v. Connor, 490 U.S. 386, 388

(1989). The First Circuit has made clear that the issue of

reasonableness in this context generally cannot be resolved

“in advance of trial.” Morelli v. Webster, 552 F.3d 12, 25

(1st Cir. 2009); see also Jennings v. Jones, 499 F.3d 2, 11

(1st Cir. 2007)(holding that any disputed evidence on the

question of the reasonableness of the force under the

circumstances is a question for the jury).

The court will therefore deny Defendant's motion for

summary judgment as to the § 1983 excessive force and common

law assault and battery claims.

4. Count 4: § 1983 Unconstitutional Custom or Policy

To establish municipal liability under 42 U.S.C. §

1983, in addition to establishing a constitutional

deprivation, a plaintiff must prove that: “through its

deliberate conduct, the municipality was the 'moving force'

behind the injury alleged.” Haley v. City of Boston, 657

F.3d 39, 51 (1st Cir. 2011) (internal quotation omitted).

The plaintiff must “identify a municipal 'policy' or

'custom' that caused the plaintiff's injury.” Id. at 51.

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Plaintiff alleges a pattern of failures by the City of

Springfield to adequately train and discipline its police

officers, which directly resulted in the harms allegedly

caused here. (Dkt. No. 1 at 8.) Plaintiff cites to a

Report and Recommendation recently adopted by this court,

which concluded that the City of Springfield has evinced

“what appears to be a consistent pattern of rejecting

civilian complaints against police officers.” Douglas v.

Springfield, 14-cv-30210-MAP, 2017 WL 123422 at *18 (D.

Mass. Jan. 12, 2017). Plaintiff contends that the present

case features a similar pattern and points to evidence that

the City did not abide by its own internal policies on

training and disciplining officers.

In further support of his claim, Plaintiff notes that

one of the officers named in this lawsuit has been the

subject of fourteen internal complaints. Another has been

subject to seven such complaints, one of which was not

brought before the Community Police Hearing Board (CPHB),

notwithstanding stated policy to the contrary. In one

instance, when one Defendant was found responsible for using

inappropriate force to prevent an onlooker from documenting

23

police brutality, the written reprimand he was supposed to

receive did not appear in his file. In a previous case

against Defendant City, this court denied a motion for

summary judgment on this basis alone. See Ververis v. Kent,

No. 13-cv-30175-MAP (D. Mass. 2015).

Defendant City of Springfield asserts that it is

entitled to summary judgment as the record (1) does not

support an underlying claim of a civil rights violation and

(2) does not support a claim connecting a custom or policy of

the City to the particular civil rights violations alleged by

Plaintiff. (Dkt. No. 31-1 at 14.) In support of its

argument, Defendant City points to the existence of “ongoing

training, discipline and investigative policies.” (Dkt. No.

31-1 at 17.) But, as Plaintiff notes, in order to defeat a

Monell claim, “It is not enough that an investigative process

be in place. ... The investigative process must be real. It

must have some teeth.” Douglas, 2017 WL 123422 at *18

(quoting Beck v. City of Pittsburgh, 89 F.3d 966, 974 (3d

Cir. 1996)). Although a jury may ultimately determine

otherwise, the record contains evidence that, if believed,

would be sufficient to demonstrate a pattern of failures to

24

train and discipline officers whose conduct falls short of

appropriate standards. Moreover, a jury could find that

these lapses had a direct causal connection to the injuries

suffered by Plaintiff. Put differently, a reasonable jury

could, based on the facts adduced by Plaintiff, conclude that

the City was deliberately indifferent to the use of

unnecessary and excessive force by officers on its police

force and that such indifference was the moving force that

led to the deprivation of Plaintiff's constitutional rights.

Given this, Defendant City’s motion for summary judgment on

this count must be denied.

5. Counts 7 and 8: Common Law Malicious Prosecution

and Abuse of Process

Plaintiff contends that the officers pursued baseless

charges against him to cover up for their errors on the

scene. Specifically, Plaintiff claims that Defendant McKay

drafted a police report that deliberately falsified the

allegations that served as the basis for a criminal complaint

application against Plaintiff for disorderly conduct, assault

and battery of a police officer, and resisting arrest. (Dkt.

No. 1 at 5.) Defendants contend that where there was

25

probable cause to arrest, a plaintiff cannot make a claim for

malicious prosecution. As will be seen, this argument lacks

force.

Ordinarily, to state a cause of action for malicious

prosecution, a plaintiff must allege that criminal

proceedings were initiated against him without probable cause

and for an improper purpose and that they were terminated in

his favor. Meehan v. Town of Plymouth, 167 F.3d 85, 88-9

(1st Cir. 1999). The law is clear that, even where probable

cause exists to arrest, an abuse of process claim may still

survive where there is evidence that “the officers' reports

intentionally exaggerated the gravity of the situation so

that the prosecutor would be more likely to press charges.”

Gutierrez v. Mass. Bay. Transp. Auth., 437 Mass 396, 407

(2002).

Comparing Defendant McKay's report of the events

surrounding Plaintiff's arrest with Plaintiff's version of

the same event, the court must conclude that, if a jury

credited Plaintiff’s testimony, it might well find that the

police report was substantially exaggerated. Defendant

McKay's version is as follows:

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[During the skirmish involving Plaintiff's two sons and

Defendant officers, Plaintiff] came out into the street

yelling, grabbing at our batons and swinging at both

officers, [Plaintiff] was then advised that he was under

arrest, however he continued his assault toward

Officers. [Plaintiff] was then sprayed using my

department issued OC spray, which caused [Plaintiff] to

back away from the officers struggling on the ground.

At this point Officers Hervieux and Goodrow arrived to

assist, and placed [Plaintiff] into handcuffs and into

the rear of their marked cruiser for transport.

(Dkt. No. 31-3.)

Several points stand out. First, Defendant McKay does

not mention Defendant Hervieux's use of force on Plaintiff.

Second, he claims Plaintiff engaged in a “continued”

“assault” against officers, whereas Plaintiff alleges that he

was trying to prevent Defendant McKay from hitting his fellow

officer, Defendant Romero, with the baton. Third, in

general, this rendition of the incident identifies Plaintiff

as an instigator of violence, whereas Plaintiff’s version was

that he was trying to calm his sons down.

It is impossible at this stage to know which of these

dramatically different descriptions of the arrest scene will

be found by the jury to be credible. Because a reasonable

jury could find that Defendant McKay “exaggerated the gravity

27

of the situation so that the prosecutor would be more likely

to press charges,” Defendants' motion for summary judgment as

to Count 7, charging malicious prosecution will be denied.

The analysis for the abuse of process claim is

substantially similar. “The elements of an abuse of process

claim are that: “(1) ‘process’ was used; (2) for an ulterior

or illegitimate purpose; (3) resulting in damage.”

Gutierrez, 437 Mass. at 407 (internal quotation omitted). In

the context of a criminal complaint sought by a police

officer, an abuse of process claim may properly stand even if

the officer had probable cause to place the plaintiff under

arrest. Id.(citing Quaranto v. Silverman, 345 Mass. 423, 426

(1963)). Again, it appears that Plaintiff can point to

sufficient facts in the record to support an abuse of process

claim.

Defendants' motion for summary judgment as to the count

alleging abuse of process will be denied.

C. Defendant City's Motion to Bifurcate

Defendant City contends that the Monell claim against

the City of Springfield for its unconstitutional policy or

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custom should be tried separately from the claims against the

individual officers. See Monell v. Dept. Soc. Svcs. of the

City of N.Y, 436 U.S. 658 (1978). Defendant argues that the

factors of convenience, prejudice, and economy support

bifurcation. The City points out that, in a joint trial,

Defendant officers may suffer undue prejudice, since evidence

admissible on the issues relating to the City might

contaminate the jury in weighing the issues relating to the

officers.

Plaintiff counters that bifurcation will result in even

greater prejudice to him. He argues that, if the trial

against the officers goes first, a verdict in his favor and

an award of damages will have the practical effect of

deterring him from pursuing his claim against the City,

thereby allowing an unconstitutional custom or policy to

operate unchecked. Further, Plaintiff is concerned about

being under-compensated for his injuries if damages are

sought from individual officers and not the City.

Defendant's concern about the potential prejudice faced

by individual police officers where claims against them and

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the City are tried jointly is reasonable. It is likely that

evidence of “prior bad acts” by the individual officers may

be relevant to the Monell claim but excluded entirely in a

separate trial against the officers.

On the other hand, Plaintiff’s concerns are also

legitimate. Where a plaintiff does not prevail in his suit

against the named officers, the Monell claim falls away.

Lund v. Henderson, 807 F.3d 6, 10 (1st Cir. 2015)(citing City

of L.A. v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89

L.Ed.2d 806 (1986) (per curiam)). But even where a plaintiff

does prevail in the first suit, and receives a full and fair

measure of damages, that plaintiff has little incentive to

pursue his claim against the City in a second trial. See

Douglas Colbert, Bifurcation in Civil Rights Cases:

Undermining Monell in Police Brutality Cases, 44 HASTINGS

L.J. 499, 575 (1992-93) (“Most litigants lack the resources,

fortitude, and commitment necessary to proceed to a second

trial on the Monell claim.”); Matthew J. Cron et al,

Municipal Liability: Strategies, Critiques, and a Pathway

toward Effective Enforcement of Civil Rights, 91 DENV. U.

L.R. 583, 585 (2014) (“The result of bifurcation is to make

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the task of proving municipal liability even more onerous.”)

The reality is that allowance of a motion for bifurcation,

where the trial against the officers proceeds first, can in

effect mean that a Monell claim disappears irrespective of

its merits.

The solution to all these concerns is to allow the

motion to bifurcate, but proceed with trial of the Monell

claim first. Relevant evidence of prior bad acts may be

weighed by the jury in the trial against the City, without

risk of prejudice to Defendant officers. Of course,

Plaintiff will bear the burden of proving at this trial both

the existence of a custom or policy, and a causal connection

between the custom or policy and his injuries. Put

differently, even if Plaintiff can prove an unconstitutional

custom or policy, he will not be entitled to recover unless

he can prove a violation of his constitutional rights by the

officers stemming from that policy.

Admittedly, some considerations of economy may weigh in

favor of trying the claims against the individual officers

first. If, for example, Plaintiff fails to prove the

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existence of an unconstitutional custom or police, or a

causal link between that policy and his injury, then the jury

will return a verdict for the City on the Monell claim. A

trial against the individual officers will thereafter be

necessary, with much of the same evidence regarding the

January 20, 2013, incident. This, however, is a bearable

(and not inevitable) imposition, in order to permit Plaintiff

to have his day in court on his Monell claim and to protect

the important policy considerations underlying such a claim.

IV. CONCLUSION

For the reasons set forth above, Plaintiff's motion for

summary judgment as to Count 1 is hereby DENIED. Defendants’

motion for summary judgment is DENIED as to Counts 1, 3, 4,

5, 7 and 8 and is ALLOWED as to Counts 2 and 6. Defendant

City's motion to bifurcate is ALLOWED, but with the

understanding that the Monell claim will go first. The clerk

will set the case for a final pre-trial conference.

It is So Ordered.

/s/ Michael A. Ponsor

MICHAEL A. PONSOR

U.S. DISTRICT JUDGE

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