Fairbanks v. Danvers, Town of

United States District Court

District of Massachusetts

)

MATTHEW FAIRBANKS, )

)

Plaintife£t, )

)

Vv. ) Civil Action No.

) 16-10023-NMG

OFFICER DANA O’HAGAN, ET AL., )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of the arrest of Matthew Fairbanks

(“Fairbanks” or “plaintiff”), the subsequent search of his

apartment and the seizure of his property. Fairbanks claims

that defendants, various police officers employed by the Town of

Danvers, Massachusetts, falsely arrested him and conducted an

unlawful search and seizure in violation of 42 U.S.C. § 1983.

I. Background

In January, 2013, plaintiff hosted a small social gathering

at his apartment in Danvers, Massachusetts. The guests included

his estranged father, Mark Kendall, his neighbor, Maria Melendez

and his father’s girlfriend, Holly Fletcher. During the

gathering, plaintiff and his father, Kendall, stepped into the

bathroom to have a conversation which devolved into an argument

with raised voices. During the course of the argument, fixtures

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in the bathroom were damaged and the toilet was broken off of

its base and began leaking water into the apartment below.

At approximately 3:00 A.M., the individual who lived in the

lower apartment called the police about the water leak. Officer

Dana O’Hagan arrived at plaintiff’s apartment shortly

thereafter. Kendall and Fletcher met him in the lobby and told

him that plaintiff was a Marine suffering from post-traumatic

stress disorder and was “crazy”. O’Hagan and other officers

went upstairs to plaintiff’s apartment. They found plaintiff in

the hallway where they handcuffed and frisked him. They also

asked him if he had any weapons and he responded that he had

three guns: a .45 caliber pistol, a .38 caliber revolver and a

.22 caliber rifle two of which were in his vehicle.

Officers then entered plaintiff’s apartment to recover his

keys and subsequently seized the revolver and rifle from his

car. They also confiscated a knife, a “scope”, the pistol and

other property not specifically identified in the complaint from

plaintiff’s apartment.

Fairbanks was charged in the Massachusetts District Court

with 1) assault and battery, 2) assault and battery with a

dangerous weapon, 3) two counts of improper storage of a firearm

and 4) malicious destruction of property. In July, 2013, he

admitted to sufficient facts for a guilty finding with respect

to the assault and battery charge and one of the charges of

improper storage of a firearm. With respect to those

admissions, he agreed to a two-year continuance without a

finding. The other charges were dismissed.

In January, 2016, plaintiff filed suit in this Court

against the Town of Danvers and five Danvers police officers,

Officer Dana O’Hagan, Detective Carleton, Sergeant Janvrin and

Officers Cassidy and George (collectively “defendants”). This

Court dismissed the Town of Danvers from the suit in September,

2016 and, shortly thereafter, the remaining defendants filed a

motion to dismiss which this Court allowed, in part, and denied,

in part. Plaintiff’s claims for 1) false arrest, 2) an

unreasonable search and 3) the impermissible seizure of items

from his apartment remain pending.

In November, 2017, defendants moved to compel production of

documents and answers to interrogatories from Fairbanks. He

filed no opposition to that motion which was then allowed by

Magistrate Judge Bowler in January, 2018. The following month,

defendants filed a notice informing the Court that plaintiff had

failed to comply with that discovery order and suggesting that

it was appropriate to dismiss the case. Defendants did not,

however, move to dismiss the case at that time. Shortly

thereafter, counsel for plaintiff filed a motion for an order

declaring plaintiff incompetent to testify at his deposition and

moved to seal medical documentation in support of that motion.

Defendants opposed plaintiff’s motion to be declared

incompetent, contending that issues of testimonial competence

should be reserved for trial.

Defendants filed their motion for summary judgment on all

claims on April 30, 2018 which Fairbanks opposes. The Court

convened a status conference in May, 2018 to hear the parties on

the status of the case and to determine the proper order in

which to consider the pending motions. The parties agreed it

would be appropriate at this juncture for the Court to consider

the motion for summary judgment filed by defendants and to

revisit the testimonial competence of plaintiff if any claims

remained viable. In his opposition to the motion for summary

judgment, plaintiff’s counsel submitted a five-page affidavit

purporting to summarize the testimony of four of the individual

defendants. They moved to strike that affidavit and plaintiff

opposes that motion. Defendants’ motions to strike and for

summary judgment are the subject of this memorandum.

II. Motion for Summary Judgment

Defendants move for summary judgment on the merits of each

of plaintiff’s three remaining claims. The complaint alleges

false arrest (Count I) and unlawful search and seizure (Counts

II and III) in violation of the Fourth and Fourteenth Amendments

to the United States Constitution and 42 U.S.C. § 1983.

Defendants also assert a qualified immunity defense with respect

to plaintiff’s claims.

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (lst Cir. 1991). The burden is on the moving party to

show, through the pleadings, discovery and affidavits, “that

there is no genuine dispute as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A fact is material if it “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

Once the moving party has satisfied its burden, the burden

shifts to the non-moving party to set forth specific facts

showing that there is a genuine, triable issue. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The Court must view the

entire record in the light most favorable to the non-moving

party and indulge all reasonable inferences in that party’s

favor. O-Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).

Summary judgment is appropriate if, after viewing the record in

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the non-moving party’s favor, the Court determines that no

genuine issue of material fact exists and that the moving party

is entitled to judgment as a matter of law.

B. Analysis

1. Count I: False Arrest

Defendants contend that plaintiff’s false arrest claim

fails because there was probable cause for his arrest and there

was no constitutional violation. They proffer evidence of

information provided by Fairbanks’s father, Mark Kendall and his

girlfriend, Holly Fletcher, about plaintiff’s violent behavior

and the presence of “several loaded guns” in the apartment.

Defendants assert that those statements provided the officers

probable cause for plaintiff's arrest for assault and battery

with a dangerous weapon and domestic assault.

Fairbanks opposes summary judgment on Count One, contending

that the officers had a duty to further investigate the victims’

complaints and that the officers failed to ask Fairbanks for his

version of events. He further suggests that the officers did

not identify the crimes for which they were arresting him.

An arrest is lawful when the arresting officer has

“probable cause”. Tennessee v. Garner, 471 U.S. 1, 7 (1985). An

officer has probable cause when, at the time of the arrest, the

facts and circumstances within the officer’s knowledge

. . . are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances

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shown, that the suspect has committed, is committing, or is

about to commit an offense.

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). A court must

examine the circumstances surrounding the arrest from the

perspective of a reasonable person in the position of the

officer. Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir.

2009) (citing Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d

249, 255 (1st Cir. 1996)). “The test for probable cause does

not require the officers’ conclusion to be ironclad”, rather the

conclusion need only be reasonable. Acosta v. Ames Dep’t Stores,

Inc., 386 F.3d 5, 11 (1st Cir. 2004). The question of probable

cause is an objective inquiry and “actual motive or throught

process of the officer is not plumbed”. Bolton v. Taylor, 367

F.3d 5, 7 (1st Cir. 2004) (citing Whren v. United States, 517

U.S. 806, 813 (1996).

Fairbanks does not dispute the statements given by Kendall

or Fletcher, but rather suggests that the officers’ failure to

ask Fairbanks for his side of the story precludes finding that

the officers had probable cause. He contends that the officers

had a duty to investigate further because Kendall has had

“scrapes with the law”, is larger than Fairbanks who purportedly

assaulted him and Fairbanks also sustained injuries. Fairbanks

submits that the incident was a “he-said-she-said” situation and

therefore required further investigation.

The statements made by Kendall and Fletcher and the

officers’ observations of injuries to Kendall were sufficient to

establish probable cause here. The officers were told that

Fairbanks beat his father, Kendall, threw him into the bathtub,

punched him in the face, ripped the toilet out of the wall and

hit him in the head with it. Fletcher, the girlfriend, informed

the officers that she witnessed Fairbanks beating Kendall and

that Fairbanks had loaded guns in the apartment.

Victim statements, even uncorroborated, can be sufficient

to establish probable cause. Acosta, 386 F.3d at 10. (“The

uncorroborated testimony of a victim or other percipient

witness, standing alone, ordinarily can support a finding of

probable cause.”). In lieu of circumstances or facts

that would raise a reasonably prudent officer’s antennae,

there is no requirement that the officer corroborate every

aspect of every complaint with extrinsic information.

Id. The victim’s statement here was corroborated by his

girlfriend’s percipient witness statement and the observations

of the injuries by the officers. Given the statements of

Kendall and Fletcher, the conclusion of the arresting officers

that probable cause existed was reasonable. United States v.

Winchenbach, 197 F.3d 548, 555-56 (1st Cir. 1999). The

additional facts raised by Fairbanks do not alter that

conclusion. Forest v. Pawtucket Police Dep’t, 377 F.3d 52, 57

(lst Cir. 2004) (*“*[T]he primary inquiry . . . is whether there

is any evidence that the officers acted unreasonably when they

determined that [the victim’s] accusation was credible, in light

of all the circumstances known at the time.”).

Probable cause existed for Fairbanks’s arrest because it

was reasonable for the officers to conclude that he committed an

assault and battery with a dangerous weapon. Accordingly,

defendants’ motion for summary judgment as to Count One will be

allowed.

2. Counts II-III: Unlawful Seizure and Arrest under 42

U.S.C. § 1983

Defendants move for summary judgment on Counts Two and

Three, contending that the search of plaintiff's apartment and

the officers’ seizure of his .45 pistol were reasonable and, in

any event, the officers are protected by qualified immunity.

The officers submit that (1) plaintiff’s girlfriend consented to

entry and led the officers to the firearm, (2) the protective

sweep was reasonable, (3) there were exigent circumstances

warranting entry, (4) the community caretaking exception

applies, (5) the weapons were in plain view and the inevitable

discovery doctrine applies and (6) seizure of the weapons is

supported by the plain view doctrine.

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Defendants first contend that they are entitled to summary

judgment on Counts Two and Three because plaintiff’s girlfriend,

Maria Melendez, consented to the officers’ entry into the

apartment and lead them to the seized weapon. They suggest that

it was reasonable to rely on Melendez’s permission to enter the

apartment given her relationship to plaintiff, the time of night

(between 3:00 A.M. and 4:00 A.M.) and the fact that she was

wearing a Marine Corps sweatshirt when the officers were aware

that plaintiff was a marine. Defendants proffer the affidavit

of Officer Cassidy who states that “Ms. Melendez invited us into

the apartment to recover the firearm”.

Plaintiff disputes the officers’ version of events and

submits an affidavit of Melendez in which she rejoins “[the

officers] did not seek permission from either of us to search

car or apartment”. The dueling affidavits here create a genuine

issue of material fact about whether the officers had permission

to enter the apartment and the officers are therefore not

entitled to summary judgment on the grounds that the search was

a result of the uncoerced consent of Ms. Melendez.

Defendants also contend, however, that the search of the

apartment was reasonable as a protective sweep to protect

themselves and others and that there were exigent circumstances

that justified the entry. Plaintiff counters that a protective

sweep was unnecessary because he left the apartment when asked

and the officers were unaware of any other individuals in the

apartment at the time of the search.

A warrantless search of a private residence is generally

considered unreasonable under the Fourth Amendment. United

States v. Tibolt, 72 F.3d 965, 968 (1st Cir. 1995). The Supreme

Court has announced an exception to that rule, however, allowing

an officer to conduct a protective sweep of the premises

following an in-home arrest if

articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably

prudent officer in believing that the area to be swept

harbors an individual posing a danger to those on the

arrest scene.

Maryland v. Buie, 494 U.S. 325, 334 (1990). The First Circuit

Court of Appeals has extended Buie to allow protective sweeps

“following an arrest that takes place just outside the home”.

United States v. Lawlor, 406 F.3d 37, 41-42.

The reasonable suspicion standard is “considerably less

demanding than the level of proof required to support” a

probable cause finding. United States v. Winston, 444 F.3d 115,

118 (1st Cir. 2006). The scope of the protective sweep must be

limited and the duration must be “no longer than is necessary to

dispel suspicion of danger”. Buie, 494 U.S. at 335.

The officers have presented competent and sufficient

evidence that they had a reasonable suspicion that others may be

present in the apartment in the presence of loaded weapons.

Winston, 444 F.3d at 119 (finding that the agents had a

“reasonable suspicion to believe that a dangerous person could

be in the basement”); but see United States v. Delgado-Perez,

867 F.3d 244, 253 (1st Cir. 2017) (disapproving of a protective

sweep where the record did not contain particularized evidence

that could have led the officers to believe that multiple

persons would have been present in [defendant’s] residence).

Defendants proffer particularized evidence that, upon

arriving at the residence, they learned that there was a party

in plaintiff’s apartment with alcohol, violence and loaded

firearms. Although plaintiff suggests that the officers did not

know whether there was another individual in the apartment, they

have set forth an articulable basis for their reasonable

suspicion that there was a remaining risk of danger in the

house. Winston, 444 F.3d at 119. The officers were not required

to accept Melendez’s purported assurance that there was no one

else in the apartment. Solis-Alarcon v. United States, 662 F.3d

577, 582 (1st Cir. 2011) (“The officers were not required to

accept plaintiffs’ word that [an individual] was absent.”). The

protective sweep and seizure of the firearm were reasonable

under the circumstances.

Defendants further suggest that there were exigent

circumstances justifying their entry into the apartment. The

exigent circumstances exception to the Fourth Amendment’s

warrant requirement generally requires a threshold showing that

law enforcement officers had probable cause to enter. United

States v. Capelton, 350 F.3d 231, 240 (1st Cir. 2003). Probable

causes exists where the totality of the circumstances creates

“a fair probability that contraband or evidence of a crime will

be found in a particular place”. United States v. Almonte-Baez,

857 F.3d 27, 31 (1st Cir. 2017) (citing United States v.

Tanguay, 787 F.3d 44, 50 (1st Cir. 2015)).

When considering whether law enforcement was faced with

exigent circumstances, a Court must consider the reasonableness

of the officer’s split-second decision. Almonte-Baez, 857 F.3d

at 31 (noting that the exigent circumstances doctrine reflects

an “understanding and appreciation of how events occur in the

real world”). The First Circuit has recognized the presence of

an exigent circumstance in cases where there is a threat of

destruction of evidence inside a residence or where there is a

potential threat to the safety or lives of the public or police

officers. Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir.

1999).

The officers’ decision to enter the apartment without a

warrant was reasonable under the exigent circumstances doctrine.

Defendants have proffered evidence sufficient to suggest that it

was objectively reasonable to conclude that there may have been

others in the apartment. Furthermore, they were told by

Melendez and plaintiff that there was a loaded firearm on the

premises. Although Fairbanks suggests that the officers’

description of a party connotes a “convivial atmosphere of

celebration rather than a multitudinous host of people”, that

suggestion does not affect the reasonableness of the officers’

on-site determination that there was a potential threat to

public or officer safety under the circumstances.

Accordingly, the officers are entitled to summary judgment

on Counts II and III.

III. Motion to Strike

A. Legal Standard

At the summary judgment stage, the Court may consider only

evidence that would be admissible at trial. Fed. R. Civ. P.

56(¢c)(3). Moreover, the party offering the evidence must

demonstrate that the declarant has personal knowledge about the

evidence and is competent to testify about it. Id.; see also,

e.g., Hoffman v. Applicators Sales and Serv., Inc., 439 F.3d 9,

14 (lst Cir. 2006).

B. Application

In his opposition to defendants’ motion for summary

judgment, plaintiff submitted the affidavit of his counsel,

Michael Walsh. That affidavit summarizes testimony of four of

the individual defendants, Officers Hagan, Cassidy, Carleton and

Sergeant Janvrin. Defendants move to strike that affidavit,

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asserting that it fails to meet the Fed. R. Civ. P. 56(c)

requirements that such affidavits (1) be made on personal

knowledge, (2) set out facts that would be admissible in

evidence and (3) show that the affiant or declarant is competent

to testify on the matters stated. Defendants aver that the

affidavit is inadmissible hearsay under Fed. R. Evid. 802 and

contains improper legal arguments.

Fairbanks disputes the officers’ characterization of the

affidavit, rejoining that it does not contain legal conclusions

and suggesting that the summaries of the officers’ testimony

“reflects the imperfection of human memory”. In a convoluted

argument, plaintiff submits that the summaries of the testimony

are admissible under Fed. R. Evid. 1006, but glosses over the

requirement of that rule that the proponent must submit

originals or duplicates of the summarized testimony. Plaintiff

maintains that counsel’s summaries of the officers’ testimony

are not hearsay under Fed. R. Evid. 801(d)(1).

Plaintiff’s opposition is unavailing, Casas Office

Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st

Cir. 2008), but even if it prevailed and the Court accepts the

statements in counsel’s affidavit as true, the Court has

determined that defendants are entitled to summary judgment and,

accordingly, it will deny defendants’ motion to strike as moot.

ORDER

For the forgoing reasons, defendants’ motion for summary

judgment (Docket No. 49) is ALLOWED. Plaintiff’s motions for an

order to declare witness incompetent to testify (Docket No. 40)

and to seal medical records (Docket No. 41) and defendants’

motions for extension for time (Docket No. 45) and motion to

strike (Docket No. 67) are DENIED AS MOOT.

So ordered.

/s/ Nathaniel M. Gorton_____

Nathaniel M. Gorton

United States District Judge

Dated August 9, 2018