# Hutchins v. City of Springfield > District Court, D. Massachusetts · January 16, 2018 URL: https://www.frixlaw.com/law-library/cases/10196400 ## Case - **Court:** District Court, D. Massachusetts - **Decided:** January 16, 2018 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10196400 ## How later opinions describe it (automated extraction) - stating that a search or seizure “may be permissible even though the justification for the action includes a reasonable factual mistake” - holding that any disputed evidence on the question of the reasonableness of the force under the circumstances is a question for the jury - 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” ## Opinion text 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 3 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, 5 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 6 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 7 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 8 “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 10 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 12 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”); 13 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, 15 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. 16 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 21 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. 22 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: 26 [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 28 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 29 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 30 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 31 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 32 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10196400. Public record. Not legal advice.