Whyman v. Whalen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

JON WHYMAN, )

)

Plaintiff, )

)

v. ) Civil Action No. 16-cv-10049-LTS

)

)

SCOTT WHALEN, in his Personal and )

Official Capacities, )

Defendant. )

)

ORDER ON DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

June 22, 2018

SOROKIN, J.

On January 13, 2016, plaintiff Jon Whyman filed a complaint in this Court against

Sergeant Scott Whalen, a police officer in the city of Somerville, Massachusetts. Doc. No. 11.

The Complaint alleges violations of the Fourth and Fourteenth Amendments of the United States

Constitution and the Massachusetts Civil Rights Acts (“the M.C.R.A.”), intentional infliction of

emotional distress (“IIED”), malicious prosecution, interference with advantageous relations, and

defamation, all arising out of Whalen’s search of Whyman’s home executed under the authority

of a state court search warrant and Whalen’s subsequent interaction with an employee of

Whyman.1 Id. Whalen moves for summary judgment, Doc. No. 44; Whyman opposes. Doc. No.

52.

1 The Complaint additionally alleged a violation of MGL c. 149 § 19, which the Court dismissed

on July 15, 2016. Doc. No. 25.

I. THE LEGAL STANDARD

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A genuine dispute “is one on which the evidence would enable a reasonable

jury to find the fact in favor of either party.” Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st

Cir. 2014). “A ‘material’ fact is one that is relevant in the sense that it has the capacity to change

the outcome of the jury’s determination.” Id. (citation omitted).

Once a party “has properly supported its motion for summary judgment, the burden

shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading,

but must set forth specific facts showing there is a genuine issue for trial.’” Barbour v.

Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986)). The Court is “obliged to view the record in the light most

favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving

party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the

Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.”

Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina–Muñoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

II. FOURTH AMENDMENT CLAIM

Count I of the Complaint challenges, under the Fourth Amendment, the legality of the

state court search warrant because, according to Whyman, the affidavit (“The Affidavit”)

submitted by Whalen in his application for a warrant to search the home of Whyman (1) on its

face fails to establish probable cause and (2) is untruthful and contains a material omission

without which probable cause would not exist. Doc. No. 11 at ¶¶ 47-56.

“[W]hether [an] affidavit[], on [its] face, demonstrate[s] probable cause, is

a question of law,” McColley v. Cty. of Rensselaer, 740 F.3d 817, 835 n.10 (2d Cir. 2014); see

Stewart v. Sonneborn, 98 U.S. 187, 194 (1878) (“The question of probable cause is a mixed

question of law and of fact. Whether the circumstances alleged to show it probable are true, and

existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable

cause, is a question of law.”). Probable cause exists where “the totality of the circumstances

suggests that ‘there is a fair probability that contraband or evidence of a crime will be found in a

particular place.’” United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013) (quoting United

States v. Hicks, 575 F.3d 130, 136 (1st Cir.2009). To establish probable cause, an affidavit

submitted with a warrant application “need only warrant a man of reasonable caution to believe

that evidence of a crime will be found. The probable cause standard does not demand showing

that such a belief be correct or more likely true than false.” United States v. Feliz, 182 F.3d 82,

86 (1st Cir. 1999) (citing Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)).2

2 Although not relevant to the probable cause analysis, the following fact is relevant to some of

the other claims before the Court: there is no evidence whatsoever in the record that Whalen

knew of or had any contact with Whyman prior to the investigation that is the subject of this

lawsuit.

Whalen’s affidavit supplied the following evidence to establish a “fair probability” that

evidence of a crime would be found at Whyman’s residence at 17 Kenney Drive:

1. Jon Whyman previously dated a woman named Suzanne Cyr. Doc. No. 49-4 at ¶ 15.

2. Suzanne Cyr’s mother Teresa Vicente reported “receiving disturbing text messages”

the focus of which was her daughter Cyr, as well as multimedia messages containing

nude photographs of Cyr. Doc. No. 49-4 at ¶ 3. Other members of Cyr’s family

reportedly had also received similar messages. Id. at ¶ 5.

3. The person “texting these messages appear[ed] to know a lot of information about

[Cyr].” Id. The person indicated that “they [knew] where Cyr [was] currently working

and that she [was] working at a bar a couple nights a week.” Id. at ¶ 6.

4. Cyr’s phone was reportedly “hacked” by a male that she knew, Matthew Maguire,

shortly before the commencement of the foregoing harassment campaign. Id. at ¶ 5.

At this time, Cyr’s Facebook, Gmail, and Yahoo accounts were also hacked, such that

Cyr could no longer login to the accounts. Id. at ¶ 7

5. A Facebook account under the name “Chad Garcia” was reportedly used by Maguire.

Id. at ¶ 14. A series of Facebook messages were sent from the “Chad Garcia” account

to another account (hereinafter “John”), the user of which referred to himself as

“John.” Id. at ¶ 15. John sent a photo to Chad Garcia, saying “that is her on stage” and

“she lived with me in Lynnfield.” Id. To which Chad Garcia responded,

“Whyman???” Id. Garcia also, on several occasions, requested to see a video that

John purportedly had, and John responded that he would send the video after

removing sound. Id. at ¶¶ 14-15.

6. When Whyman dated Cyr, he lived with her at 6 Glenn Drive, Lynnfield, MA (“the

Lynnfield address”). Id. at ¶ 16.

7. Some of the nude photographs of Cyr sent as part of the harassing messages were sent

from the cellphone number 603-657-5726 (“the cellphone number”). Id. at ¶ 17. The

cellphone number was registered with the name of “John Smith” at the Lynnfield

address where Whyman lived with Cyr and to an email address from which harassing

emails had been sent to Cyr. Id. at ¶¶ 16-17.

8. At the time of Whalen’s investigation, a search of the RMV database revealed Jon

Whyman now resided at 17 Kenney Drive—the address Whalen applied for a warrant

to search. Id. at ¶ 18.

The forgoing is sufficient to establish probable cause as it might lead “a man of reasonable

caution to believe that evidence of a crime would be found” at 17 Kenney Drive, which is

precisely what the warrant sought. Id. at 1; Doc. No. 56-12. The affidavit plainly establishes

probable cause to believe Whyman lived at Lynnfield with Cyr and that he had a previous

relationship with her; it also plainly establishes that, at the time of the search, he resided at 17

Kenney Drive. The only question is whether the affidavit establishes probable cause to believe

that evidence of a crime would be found at 17 Kenney Drive, Whyman’s home at the time of the

search. While close, under the totality of the relevant circumstances put before the magistrate,

the forgoing does establish probable cause because the Facebook exchange is sufficient to infer,

for probable cause purposes, that, at least at the relevant time, i.e. when the Facebook users were

discussing and exchanging photographs of Cyr, a person of reasonable caution would believe

Whyman was using the “John” Facebook account and possessed the type of information being

used to harass Cyr and her family. This combined with the 603 cellphone number suffices to

make the necessary connection between Whyman’s home and the crime alleged. Thus, the Court

rejects Whyman’s attack on the facial validity of the evidence submitted to obtain the warrant.

In the alternative, Whyman argues that Whalen violated his Fourth Amendment rights by

omitting material information from the search warrant affidavit, which, had it been included,

would have shown no probable cause existed for the warrant to issue. Doc. No. 54 at 7. “[T]he

intentional or reckless omission of material exculpatory facts from information presented to a

magistrate may . . . amount to a Fourth Amendment violation” if the officer acted “in reckless

disregard for the truth.” Burke v. Town of Walpole, 405 F.3d 66, 81 (1st Cir. 2005). “In the case

of allegedly material omissions, recklessness may be inferred where the omitted information was

critical to the probable cause determination.” Id. To establish a Fourth Amendment violation, the

omitted facts must be material to the probable cause determination. Id. at 82. “[T]o determine

materiality of the . . . omissions, we . . . insert the facts recklessly omitted, and then determine

whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Id.

Whalen omitted the following allegedly exculpatory facts from the information that he

presented in the search warrant affidavit: (1) in the numerous pages of Facebook conversation

between Garcia and the John Facebook account, there are messages indicating that the user of the

John account is not Whyman, see Doc. No. 56-6 at 111-13 (describing how Garcia “first

accus[ed] the [account user] of being female,” “then [] the person of being Whyman,” “then [] of

not being Whyman,” and finally “of being Shawn.”); and (2) among the text messages between

Vicente and her harasser is a text message by Vicente to the harasser with a 2005 sent date, a

date long before before Cyr was acquainted with Whyman. See Doc. No. 56-4 at 10.

The Court finds that, as a matter of law, the omitted information was not critical to the

determination of probable cause. First, the 2005 text message date is “nonsensical;” the Apple

iPhone from which the message was sent was not issued until June of 2007. Doc. No. 57-1 at 2.

The date on the message was therefore most likely an error, which sometimes results when a

deleted text message is recovered, as was the case here. Id. at 1. Whalen has submitted a sworn

uncontradicted affidavit to this effect. See id. The omission of the “2005” text message from the

Affidavit is of no significance. Second, the omitted Facebook messages, which show, at different

times, Garcia considered individuals other than Whyman as possibly then operating the John

Facebook account, do not defeat probable cause. The messages that were included in the

affidavit establish that Garcia did not know who the operator or operators of the John account

was/were but that he considered Whyman as a possibility. See supra at 4 (Garcia asks

“Whyman???”). The information sent from “John” supported that conclusion. See Doc. No. 49-4

at ¶ 15 (stating “she lived with me in Lynnfield”). Inserting the omitted text messages, which

were sent on different days in the course of different threads, at times other than the time in

question, fails to undermine, for probable cause purposes, the inference arising from the cited

text messages that a person who had lived with Cyr in Lynnfield supplied a photo of her to

McGuire (for whom the Affidavit plainly establishes probable cause) which establishes, when

coupled with the other facts in the Affidavit, probable cause to believe that Whyman’s home may

have contained evidence related to the harassment crimes someone committed. While Whyman

would have been well served to include the other text messages as it may well have avoided

subsequent proceedings such as this one, it was not an omission sufficient to defeat the validity

of Whyman’s reliance on the warrant.

For the foregoing reasons, the Court finds, as a matter of law, that the affidavit

establishes probable cause with or without the omissions.3 Summary judgment is therefore

ALLOWED as to Count I.

III. SUBSTANTIVE DUE PROCESS CLAIM

Count II of the Complaint challenges Whalen’s withholding of information from his

search warrant application as a violation of Whyman’s substantive due process rights. Doc. No.

11 at ¶¶ 57-66. The threshold for establishing a violation of substantive due process is “a high

one.” Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992). The

challenged government conduct must be counter to the “concept of ordered liberty” or “shocking

or violative of universal standards of decency.” Amsden v. Moran, 904 F.2d 748, 754 (1st Cir.

1990) (quotation omitted); Albright v. Oliver, 510 U.S. 266, 301 n.18 (1994). Whyman has set

forth no facts showing that Whalen’s omissions of Facebook messages and the 2005 text

message sent date rise to this level. In any event, “[w]hen a specific provision of the Constitution

protects individuals against a particular kind of . . . intrusion . . . individuals seeking redress for

such an intrusion must assert their claims under that particular constitutional rubric instead of

invoking the more generalized notion of substantive due process.” S. Cty. Sand & Gravel Co. v.

Town of S. Kingstown, 160 F.3d 834, 835 (1st Cir. 1998). Here, “[b]ecause [Whyman]'s lament,

at bottom, is a garden-variety [Fourth Amendment] claim, the [Fourth Amendment], not

3 Even if the affidavit had failed to establish probable cause or if the omissions were material to

that finding, Whalen is entitled to qualified immunity. See Groh v. Ramirez, 540 U.S. 551, 563

(2004) (qualified immunity applies unless it “would be clear to a reasonable officer that his

conduct was unlawful.”).

substantive due process . . . suppl[ies] the proper decisional framework.” Id.; see supra at 2-6.

Accordingly, summary judgment is therefore ALLOWED as to Count II.

IV. MASSACHUSETTS CIVIL RIGHTS ACT CLAIMS

Counts IV and V of the Complaint allege Whalen violated Whyman’s Constitutional

rights by illegally searching Whyman’s home and by attempting to intimidate Whyman at his

place of work. Doc. Nos. 11 at ¶¶ 73-85; Doc. No. 54 at 12-16. The Massachusetts Civil Rights

Act (“MCRA”) provides a cause of action for “any person whose exercise or enjoyment of rights

secured by the constitution or laws of the United States, or of rights secured by the constitution

or laws of the commonwealth, has been interfered with, or attempted to be interfered with” Mass.

Gen. Laws c. 12, § 11H, “by threats, intimidation or coercion,” Id. at § 11I. In the context of the

MCRA, a “threat” is the “intentional exertion of pressure to make another fearful or

apprehensive of injury or harm.” Planned Parenthood League of Massachusetts, Inc. v.

Blake, 631 N.E.2d 985 (1994). “Intimidation” is “putting a person in fear for the purpose of

compelling or deterring his or her conduct.” Santiago v. Keyes, 890 F. Supp. 2d 149, 154 (D.

Mass. 2012) (citing Planned Parenthood, 631 N.E.2d at 990). Finally, “coercion” is the

“application to another of such force, either physical or moral, as to constrain him to do against

his will something he would not otherwise have done.” Planned Parenthood, 631 N.E.2d at 990

(quoting Coercion, Webster's New International Dictionary (2d ed. 1959)). In assessing a claim

under the MCRA, the Court applies the objective standard of whether a reasonable person would

be threatened, intimidated, or coerced by the defendant’s conduct. Id.

Whyman’s first MCRA claim (Count IV) asserts that Whalen violated Whyman’s Fourth

Amendment right by gaining forcible entry to Whyman’s home by use of threats, coercion, and

force. Doc. No. 54 at 13. In support of this claim, Whyman sets forth the following facts, several

of which are disputed:4 (1) Whalen and several other officers pulled Christopher Whyman,

Whyman’s son, over on a street nearby Whyman’s residence. Id. (2) Whalen asked Christopher

Whyman to let the officers into Whyman’s home, and Christopher Whyman refused. Id. (3)

Whalen then “threatened to seize the marijuana plants in Christopher Whyman’s vehicle” and to

“break down his father’s [Whyman’s] door if Christopher Whyman did not let him into the

house.” Id. at 13-14; see Doc. No. 56-11 at 11. (4) Christopher Whyman then led the officers

back to Whyman’s residence, where he let them in. Doc. No. 56-11 at 13. (5) No one else was

home at the time of the execution of the warrant. Doc. No. 54 at 13.

The forgoing does not support an MCRA claim. Whyman has failed to present facts

sufficient to establish a violation of his rights.5 Whalen’s stop of Christopher Whyman is not a

violation of Plaintiff Whyman’s rights; Whyman does not argue otherwise. See generally Doc.

No. 54. Instead, Whyman argues that his rights were violated by Whalen’s forcible entry into his

home.6

4 These facts recited are not in the complaint nor are they recited in Whalen’s Statement of Facts

nor Whyman’s Response to Whalen’s Statement of Facts. See generally Doc. Nos. 11; 55. They

are presented by Whyman for the first time in his opposition to Whalen’s motion for summary

judgment. See Doc. No. 54 at 13-14. The facts are supported by the deposition of Christopher

Whyman, Whyman’s son, which is in the summary judgment record. See Doc. No. 56-11.

Whalen disputes several of these facts. See Doc. Nos. 57 at 8-9; 57-2. Because Whalen has

moved for summary judgment, the Court accepts Whyman’s version, though disputed, of these

facts and draws all reasonable inferences in Whyman’s favor.

5 Christopher Whyman is not the plaintiff in this case so the Court need not address whether

anyone violated Christopher Whyman’s rights.

6 Whyman also makes passing reference to the time of the execution of the warrant as a violation

of his rights “given the restrictions of [the] warrant.” Doc. No. 54 at 14. The warrant forbids a

“search at any time during the night.” Doc. No. 56-12. The search was executed at 6:00 p.m.

Doc. No. 57-2 at 2. “[F]or warrant purposes, nighttime begins at 10 p.m. and ends at 6 a.m.”

Com. v. Grimshaw, 413 Mass. 73, 81 (1992). The warrant was therefore, as required, executed

during daytime hours.

The search warrant authorizing Whalen to search Whyman’s residence required

“announcement.” See Doc. No. 56-12. Whalen entered Whyman’s residence through Christopher

Whyman, and therefore never technically “knocked and announced” his presence at the

residence before entering. However, in this case, announcement was either satisfied by entry

with Christopher Whyman or not required. Pursuant to the knock and announce requirement, an

officer may forcibly enter a property, but he must first knock and announce his presence and

request permission to enter. See Wilson v. Arkansas, 514 U.S. 927, 931 (quotations omitted)

(“[B]efore he breaks it [the door], he ought to signify the cause of his coming, and . . . make

request to open [the] door[.]”). The announcement rule is “not absolute.” United States v. Garcia-

Hernandez, 659 F.3d 108, 111 (1st Cir. 2011). “For instance, a failure will not violate the rule

when officers ‘have a reasonable suspicion that knocking and announcing their presence . . .

would be dangerous or futile[.”] Id. (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)).

Here, Whalen did not need to announce his presence because to do so would have been futile. No

one was at Whyman’s residence at the time of the execution of the warrant, Doc. Nos. 54 at 13;

57-3 at 1, and he made peaceable entry with Christopher Whyman. Accordingly, under the

circumstances, to knock and announce would have been a “useless gesture” and was therefore

not required. See Com. v. Antwine, 417 Mass. 637, 639 (1994). In any event, there is no

evidence of forcible entry. Com. v. Rivera, 710 N.E.2d 950, 953 (1999) (“Before

attempting forcibly to enter a private dwelling to execute a warrant, police must knock, announce

their identity . . . Absent forcible entry, this rule is inapplicable.”) (emphasis in original). Whalen

entered Whyman’s residence pursuant to a lawful warrant; his entry did not violate Whyman’s

rights. On these facts, Whyman cannot establish the existence of an element essential to his

MCRA claim—a violation of his rights—arising from Whalen’s entry into his property.7

Whyman’s second set of MCRA claims (Count V) contend that his First Amendment free

speech right and his right to be free in his employment pursuits were violated by Whalen’s

comments to Whyman’s employee while the employee was at Somerville City Hall. In support

of these claims, Whyman presents the following facts: Some weeks following the execution of

the search warrant, Whalen learned that Whyman was pursuing a possible lawsuit against

Whalen. Doc. No. 55 at ¶ 208. After learning of the possible lawsuit, Whalen noticed Whyman

in the Somerville Department of Public Works Building (“the DPW”). Id. at ¶ 210. Whyman was

at the DPW to oversee snow removal as a part of his work as the owner and operator of a

construction company. Id. at ¶ 210, Doc. No. 11 at ¶ 5. Whalen then saw an “individual with a

Whyman shirt on and engaged him in conversation asking him if he worked for Whyman[.]”

Doc. No. 55 at ¶ 211. When the individual responded in the affirmative, Whalen stated “I ought

to throw his [Whyman’s] ass out of here.” Id. “[S]hortly after th[is] conversation,” Whalen spoke

with two employees of DPW asking that he [Whalen] not be placed in a work assignment “in the

group with [Whyman and Whyman’s employees.]” Doc. No. 56-6 at 140-41. Whalen testified

that he made this request because he wanted “to prevent any type of problem” and did not want

to “hav[e] to restrain [him]self from making any further comments.” Id. at 141. At some point

7 Because Whyman has failed to make a showing that his rights were violated by Whalen,

whether Whalen’s statements to Christopher Whyman prior to the execution of the warrant

constitute “threats, intimidation or coercion” within the meaning of the MCRA is a question the

Court need not address. In any event, no matter what Whalen said to Christopher Whyman,

Whalen possessed the legal right based on the search warrant to enter Whyman’s residence.

Whalen did not need Whyman’s permission.

following Whalen’s conversation with the DPW employees, Whyman’s hours of work for the

DPW were “cut back.” Doc. Nos. 56-6 at 142.

There is no general right to continued employment under state or federal law. Fox v.

Town of Framingham, No. 14-CV-10337-LTS, 2016 WL 4771057, at *8 (D. Mass. Sept. 13,

2016). A person has a right to continued employment if she has “some contractual right to that

employment.” Id. (citing Webster v. Motorola, Inc., 637 N.E. 2d 203, 206 (Mass. 1994).

Whyman has presented no facts establishing such a contractual right. His snow removal contact

with the city of Somerville specified that his work was on an “as needed basis” and “does not

guarantee that [his] services will be utilized.” Doc. No. 55 at ¶ 44. Whyman thus had no

continued right to employment with the city of Somerville and has presented no other basis for

his employment rights claim.

In any event, the MCRA “requires a Plaintiff to demonstrate that [his rights] hav[e] been

interfered with, or attempted to be interfered with . . . by ‘threats, intimidation or coercion.”

Meuser v. Fed. Express Corp., 564 F.3d 507, 516 (1st Cir. 2009). The “plaintiff's perception of a

threat, intimidation, or coercion [must] be objectively reasonable. A single physical gesture and

comment, unless more overtly physically or verbally threatening . . . cannot form the basis of an

objectively reasonable belief of harm.” Meuser v. Fed. Express Corp., 524 F. Supp. 2d 142, 148

(D. Mass. 2007) (citations omitted), aff'd, 564 F.3d 507 (1st Cir. 2009). “[A] collection of minor,

possibly harassing incidents cannot be sufficient to satisfy the definition of threatening or

coercive conduct . . . especially where there is little evidence of any intent . . . to intimidate[.]”

Id. Cf. Cignetti v. Healy, 89 F.Supp.2d 106, 125 (D.Mass.2000) (disregarding fact that plaintiff

found remark “I should just shoot you” intimidating when evidence indicated the remark was

meant as a joke.).

Whyman argues that his Constitutional right to free speech was interfered with by

Whalen’s statement to an employee of Whyman’s that he “ought to throw his [Whyman’s] ass

out of here [snow removal detail].” This single, isolated statement, which was not made to

Whyman himself, is not enough to constitute a threat, intimidation, or coercion for the purposes

of the MCRA. Following the incident, Whalen requested that he be placed away from Whyman

so as not to make further comments, and there is no evidence in the record that he did make any

further comments to Whyman or any of his employees. See generally Doc. No. 55. Furthermore,

there is no evidence that Whalen had any supervisory role, control or influence over Whyman’s

snow removal contract or work hours or that Whyman believed that Whalen did have such

control. Finally, the record is devoid of any evidence that Whalen intended to interfere with

Whyman’s free speech right. Rather, the uncontradicted testimony of Whalen is that he made his

statement out of “frustration” and that he took no actions related to the comment. Doc. No. 56-6

at 137-38, 145. Without more, the facts on the record do not support an inference that Whalen

interfered with or attempted to interfere with Whyman’s rights or that he did so by threats

intimidation or coercion. Summary judgment is therefore ALLOWED as to Counts IV and V.

V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

Count VI presents a claim for intentional infliction of emotional distress (“IIED”). See

Doc. No. 11 at ¶¶ 86-90. Under Massachusetts law, “[t]he standard for making a claim of

intentional infliction of emotional distress is very high.” Doyle v. Hasbro, Inc., 103 F.3d 186,

195 (1st Cir.1996) (citations omitted). To prevail on an IIED claim, a plaintiff must show: the

Defendant “intended, knew, or should have known that his conduct would cause emotional

distress; (2) that the conduct was extreme and outrageous; (3) that the conduct caused emotional

distress; and (4) that the emotional distress was severe,” Polay v. McMahon, 10 N.E.3d 1122,

1128 (2014). “Conduct qualifies as extreme and outrageous only if it goes beyond all possible

bounds of decency, and is regarded as atrocious, and utterly intolerable in a civilized

community.” Id. (quotations omitted).

Whyman alleges three types of conduct engaged in by Whalen that, he contends, in

combination support a finding of extreme and outrageous conduct: (1) searching Whyman’s

home “before the entire neighborhood”; (2) stopping Whyman’s son Christopher; and (3)

commenting to Whyman’s employee about the snow detail. Doc. No. 54 at 16. None of this

behavior is extreme and outrageous—neither in isolation nor in combination. Whalen’s search of

Whyman’s home was pursuant to a valid search warrant; there are no facts in the record showing

that Whyman’s behavior during the course of the warrant’s execution was extreme or

outrageous. Likewise, nothing in the record shows that Whalen’s stop of Christopher Whyman

was beyond the “bounds of decency,” “atrocious,” or “utterly intolerable.” Accepting

Christopher Whyman’s version of the car stop, Whalen detained a person leaving the place

Whalen was entitled to search so that Whalen could make a peaceable entry to the home rather

than breaking down the door. Finally, Whyman’s single statement to Whalen’s employee was

not extreme or outrageous. See id. (finding “single verbal attack” constitutes “nothing more than

mere ‘insults’ or ‘threats’ of the sort that fail to establish extreme and outrageous conduct.”); see

also Restatement (Second) of Torts § 46 (1965) (no extreme and outrageous conduct where

individual calls telephone operator a “God damned woman, a God damned liar, and says that if

he were there he would break her God damned neck”).

For the forgoing reasons, summary judgment is ALLOWED as to Count VI.

VI. MALICIOUS PROSECUTION CLAIM

Count VII alleges a claim for malicious prosecution. See Doc. No. 11 at ¶¶ 96-101. To

show malicious prosecution, a plaintiff must establish that the defendant, inter alia, instituted a

criminal proceeding against the plaintiff without probable cause. Limone v. U.S., 579 F.3d 79,

89 (1st. Cir. 2009). Here, probable cause existed for the search of Whyman’s home. Supra at 2-6.

Whyman has asserted no other grounds for his malicious prosecution claim. See generally Doc.

Nos. 11; 54 at 17-18. Therefore, as a matter of law, Whyman’s malicious prosecution claim fails

and summary judgment is ALLOWED as to Count VII.

VII. INTERFERENCE WITH ADVANTAGEOUS RELATIONS CLAIM

Count VIII alleges a claim for interference with advantageous relations based upon

Whyman’s contract with the city of Somerville for snow removal. Doc. No. 11 at ¶¶ 96-101.

Under Massachusetts law, to prevail on an interference with advantageous relations claim, a

plaintiff must show “that (1) he had an advantageous relationship with a third party (e.g., a

present or prospective contract or employment relationship); (2) the defendant knowingly

induced a breaking of the relationship; (3) the defendant's interference with the relationship, in

addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed

by the defendant's actions.” Blackstone v. Cashman, 860 N.E.2d 7, 12–13 (2007). Here,

Whyman has set forth no facts showing that his relationship with the city was “broken” in any

way or that he was harmed in any way by Whalen’s conduct. Whyman’s hours of work “were cut

back at some point,” Doc. No. 55 at ¶ 216, but Whyman was not an employee of the city of

Somerville, but rather an independent contractor, Id. at ¶¶ 43-45. His contract with the city did

not guarantee any amount of work or pay. See id. at ¶ 44. Whyman continued to work the snow

removal detail for the City for twenty days after Whalen’s interaction with Whyman’s employee.

Id. at ¶ 53. Therefore, that Whyman’s hours were cut back “at some point,” does not signify a

breakage of Whyman’s relationship with the city nor that Whyman suffered harm by the

Whalen’s conduct.

Whyman has failed to set forth sufficient facts from which a reasonable juror could infer

the necessary elements of his interference with advantageous relations claim including that the

decline in his hours resulted from improper interference by Whalen. Summary judgment is

therefore ALLOWED as to Count VIII.

VIII. DEFAMATION CLAIM

Count X of the Complaint alleges Whyman was defamed by “public and . . . published

statements” made by Whalen. Doc. No. 11 at ¶¶ 108-115. The Complaint does not identify any

specific statements as defamatory. See Doc. No. 11. Among the general allegations in the

complaint, the Court can identify only two alleged statements by Whalen: (1) the statement by

Whalen to Whyman’s employee that he “outta throw [Whyman’s] ass out of here,” id. at ¶ 40;

and (2) the statements in the search warrant affidavit, id. at ¶ 13. Neither of these statements

supports a defamation claim.8

8 At a deposition at the very end of discovery, Whyman’s fiancée Antonella Alessio said she

walked into Whyman’s home while the execution of the warrant was in progress, that Whalen

showed her the search warrant affidavit and, after some prompting by Whyman’s counsel, that

Whalen told her that her “boyfriend has been harassing [a] woman.” Doc. Nos. 54 at 19-20; 56-7

at 19, 121. This statement was not alleged in the Complaint, see generally Doc. No. 11, and the

Complaint was never amended. Although under the Federal Rules of Civil Procedure, a plaintiff

is “not required to set forth [in her complaint] the alleged defamatory statements verbatim[,]”

Grant v. Target Corp., 126 F. Supp. 3d 183, 192 (D. Mass. 2015) (quoting N. Shore Pharmacy

Servs., Inc. v. Breslin Assocs. Consulting LLC, 491 F. Supp. 2d 111, 124 (D. Mass. 2007)), the

plaintiff is required to “set forth . . . allegations in support of its defamation claim that [a]re

sufficient to give the [defendant] fair notice of its claim and the grounds upon which it rests.” N.

Shore Pharmacy Servs., Inc., 491 F. Supp. 2d at 124. Here, where Whyman failed to plead the

context of the alleged defamatory statement, the timing of the statement, and the person to whom

the statement was made, Whyman has failed to provide sufficient notice of the alleged

defamatory statement to withstand Whalen’s Motion to Dismiss. Cf. N. Shore Pharmacy Servs.,

The statements in the search warrant affidavit cannot support a defamation claim because

the statements are privileged. “[D]efamation is the publication of material by one without a

privilege to do so which ridicules or treats the plaintiff with contempt.” Correllas v. Viveiros,

572 N.E.2d 7, 9 (1991). “Statements made in the course of a judicial proceeding which pertain to

that proceeding are, of course, absolutely privileged and cannot support a claim of defamation,

even if uttered with malice or in bad faith.” Id. “The privilege is not limited to proceedings

before a judge, but applies in cases in which judicial powers are exercised [those that are ‘quasi-

judicial’],” including the “issuance of a search warrant.” Sibley v. Holyoke Transcript-Telegram

Pub. Co., 461 N.E.2d 823, 826 (1984); cf. Opalenik v. LaBrie, 945 F. Supp. 2d 168, 196–97 (D.

Mass. 2013) (“[A]n application for a criminal complaint is generally considered as involving a

form of judicial proceeding and the statements made therein are absolutely privileged.”).

Accordingly, the statements in the search warrant affidavit are absolutely privileged and cannot

support a defamation claim.

The statement to Whyman’s employee likewise cannot support a defamation claim

because it does not imply a probable statement of fact. “Because defamation requires a false

statement at its core, opinions typically do not give rise to liability since they are not susceptible

to objective verification.” McKee v. Cosby, 236 F. Supp. 3d 427, 438 (D. Mass.), aff'd, 874 F.3d

Inc., 491 F. Supp. 2d at 124 (finding defamation sufficiently plead where the complaint included

the “context in which the allegedly defamatory statements were made and provided an indication

as to the timing of the statements and the identity of the person or persons to whom the

statements were made”); cf. also Grant, 126 F. Supp. 3d at 193 (allowing Defendant’s motion to

dismiss defamation claim where Plaintiff failed to alleged in his complaint the “who, what,

when, where” of the alleged defamatory statement).

54 (1st Cir. 2017) (quotations omitted). “Merely couching a statement as an opinion, however,

will not automatically shield the speaker from liability where the statement implies the existence

of underlying defamatory facts.” Piccone v. Bartels, 785 F.3d 766, 771 (1st Cir. 2015). Thus, the

relevant inquiry here is whether Whalen’s statement that he “outta throw [Whyman’s] ass out of

here” “reasonably would be understood to declare or imply provable assertions of fact.” See id.

Whether a statement may be understood to declare or imply a verifiable fact “can be

decided by the court as a matter of law.” Id. at 772. “This task requires an examination of the

totality of the circumstances in which the specific challenged statements were made, including

the general tenor and context of the conversation and any cautionary terms used by the person

publishing the statement.” Id. Here, the conversation between Whalen and Whyman’s employee

was a short one. Whalen asked the employee, “Do you work for Whyman?” Doc. No. 55 at ¶ 40.

The employee answered “yeah.” Id. Whalen then said, “I outta throw his ass out of here.” Id.

The employee responded, “Why d[o] [you] say that?” Id. Whalen answered, “Long story,” and

then “just walked away[.]” Id. The employee understood Whalen’s statement as a “negative

comment,” but “didn’t think much of it at the time.” Doc. No. 56-8 at 5-6. He did not find the

comment threatening “in any way” and noted that “when there’s a bunch of people working all

night, you kind of swear.” Doc. No. 45-1 at 46-47.

Later, Whyman “said something that kind of rang a bell,” the employee remembered his

conversation with Whalen, and asked Whyman, “Hey, what did you do to piss off the Somerville

Police?” Id. at ¶ 41; Doc. No. 45-1 at 7, 45. Whyman responded, “Ahhhh. What do you mean by

that? What are you saying?” and the employee said, “Oh, I was talking to one of the people over

there. He said he didn’t like you.” Doc. No. 45-1 at 7.

Given the totality of the circumstances in which the Whalen’s statement was made, the

statement implied no defamatory facts but rather only Whalen’s negative opinion of Whyman.

This is borne out by Whalen’s response to Whyman’s employee. When the employee asked

Whalen what was meant by the statement, Whalen said, “Long story,” and walked away. Doc.

No. 11 at ¶ 40. The employee understood the comment as negative but did not think much about

it. Under the circumstances, the statement is unactionable.

For the forgoing reasons, summary judgment is allowed as to Count X.

IX. CONCLUSION

For all the foregoing reasons, Defendant Whalen’s Motion for Summary Judgment (Doc.

No. 44) is ALLOWED as to all remaining counts.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United States District Judge