Justiniano v. Walker

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DAMARIS JUSTINIANO, as the

Personal Representative of the

Estate of WILFREDO JUSTINIANO

Jr., No. 15-CV-11587-DLC

Plaintiff,

v.

STEPHEN WALKER and TIMOTHY P.

ALBEN,

Defendants.

MEMORANDUM AND ORDER

CABELL, U.S.M.J.

This case arises from a tragic and unfortunate incident.

Massachusetts State Police Trooper Stephen Walker responded to a

call and in the course of their encounter shot and killed Wilfredo

Justiniano Jr. Damaris Justiniano has brought suit as the personal

representative of Justiniano’s estate, and the complaint presently

alleges claims against Trooper Walker for excessive force and

wrongful death. The defendant moves for summary judgment on both

counts and the plaintiff opposes. (Dkt. No. 58, 73). After

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

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

summary judgment will be GRANTED. The reasons for this ruling are

explained below.

I. RELEVANT FACTS

On June 14, 2013, Karen Kyriakides (“Kyriakides”) was driving

on Route 28, a multilane state highway, when she observed the car

in front of her drive erratically before coming to a stop on the

side of the road. (Defendant Stephen Walker’s Statement of

Undisputed Material Facts In Support of His Motion For Summary

Judgment (“Defendant’s SUF”), at ¶¶ 56-58). When Kyriakides passed

the vehicle she observed a man, later identified as Justiniano,

holding his right hand over his heart with his head tilted back.

(Id., at ¶ 58). Kyriakides approached the vehicle to check on

him. As she did so, Justiniano got out of his car and appeared

distraught and confused. (Id.). Kyriakides asked Justiniano if

he needed a doctor and “he answered in a language that [Kyriakides]

did not understand.” (Id.). Kyriakides instructed Justiniano to

sit in his car while she went to call the police and for an

ambulance. (Id.). Justiniano complied with her instructions.

(Id.).

Kyriakides returned to her vehicle and dialed 911. She

informed the operator that there was a possible medical emergency

and that she was concerned for the man’s safety as well as the

safety of others. (Id., at ¶ 59). While on the phone with the

police, Kyriakides observed Justiniano outside of his vehicle

throwing his arms and hands up in the air and titling his head

back. (Id., at ¶ 60). He appeared as though “he was speaking in

tongues.” (Id.). Kyriakides observed Justiniano pacing and

walking around his car and thought he might walk into the travel

lane of the road. (Id. ¶¶ 61-62).

Trooper Walker responded to the call. (Id., at ¶¶ 15-16).

When he arrived on the scene he observed Justiniano standing in

the roadway, yelling and jumping up and down. (Id., at ¶ 17).

Before exiting his vehicle to assess the situation, Trooper Walker

radioed dispatch that he was on the scene. He also requested that

another unit be dispatched because “something di[d not] feel

right.” (Id., at ¶¶ 20-21).

Trooper Walker approached Justiniano and asked him “what was

wrong, what was going on, [or] something to that effect.” (Id.,

at ¶ 23). Justiniano, who was about 14 to 20 feet away, told

Trooper Walker that he was “an undercover cop” and that Walker

would have to kill him.1 (Id., at ¶ 25). Unbeknownst to Trooper

Walker at the time, Justiniano had a long history of mental illness

1 The plaintiff disputes that these statements were made but bases the dispute

on the fact that other witnesses testified that they could not hear what

Walker and Justiniano said to each other. The court does not view that as a

basis to question Trooper Walker’s assertion. Suarez v. Pueblo Int’l, Inc.,

229 F.3d 49, 53 (1st Cir. 2000)(“[A plaintiff] cannot rely on the absence of

competent evidence, but must affirmatively point to specific facts that

demonstrate the existence of an authentic dispute.”); see also  Chappell v.

City of Cleveland, 585 F.3d 901, 914 (6th Cir. 2009)(witnesses’ failure to

hear announcements did not refute testimony that such announcements were made

and thus did not raise genuine dispute of fact).

which included a history of non-compliance with respect to taking

his medication. (Id., at ¶ 84-85).

Kyriakides, still in her car, could not hear the conversation

between Justiniano and Walker because her windows were closed.

She did however observe Trooper Walker speaking to Justiniano and

appearing to try and calm him down. (Id., at ¶ 64).

Justiniano slowly approached Trooper Walker and repeated that

he (Walker) would have to kill Justiniano, and that if he did not,

Justiniano would kill him. (Id., at ¶¶ 28-29). Trooper Walker

gestured to Justiniano to stop advancing and he simultaneously

backed up slightly to maintain the distance between them. (Id.,

at ¶ 26). Trooper Walker also observed that Justiniano was holding

a blue stick ballpoint pen just as one would hold a knife. (Id.,

at ¶ 27).

Notwithstanding Trooper Walker’s gesture that he stop,

Justiniano began to pick up speed. Trooper Walker warned him to

stop approaching and to drop the pen. (Id., at ¶¶ 31-32).

Justiniano did not drop the pen and continued to walk towards

Trooper Walker. (Id., at ¶¶ 31-33).

Jo-Ann Silva-Winbush (“Winbush”) was in a car as she

approached the two men and slowed down after observing police

lights. She observed a police officer, presumably Trooper Walker,

jump backwards in front of her car, in the travel lane of the

roadway. (Id., at ¶ 70). She then observed a man, presumably

Justiniano, “running after the cop.” (Id., at ¶ 71).

Kyriakides also saw Justiniano and Walker close to the

roadway. She did not see a weapon but it looked to her as though

Justiniano was ready to jump on Trooper Walker. (Id., at ¶ 65;

Plaintiff’s SUF, at ¶ 89).

Winbush observed Trooper Walker signal Justiniano to stop by

putting his left hand out with his palm facing Justiniano.

Justiniano continued to approach Trooper Walker and at the same

time pulled something from his waist. (Defendant’s SUF, at ¶¶ 74-

75). Trooper Walker was about 14 feet away from Justiniano and

warned him that he would use pepper spray if Justiniano continued

to advance. (Id.).

According to Winbush, Justiniano moved towards Trooper Walker

with his hands up near his shoulders and lunged at Trooper Walker.

(Id., at ¶ 73). She observed that Trooper Walker then held up his

hand to either signal Justiniano to stop or to use pepper spray.

(Id., ¶¶ 73, 74). In fact, Trooper Walker emitted a short burst

of pepper spray, which had no real effect on Justiniano. (Id., at

¶¶ 37, 76). Trooper Walker then jumped back again, further into

the travel lane. (Id., at ¶ 72).

Justiniano rubbed his face after being sprayed and appeared

angry. (Id.). Justiniano continued to advance towards Trooper

Walker and Trooper Walker in turn backed up to maintain the

distance between them. Trooper Walker warned Justiniano that he

would pepper spray him again if Justiniano continued to advance.

This warning did not work and Justiniano continued to advance.

Consequently, Trooper Walker used the pepper spray a second time.

(Id., ¶¶ 37-39). This second use of the spray took place less

than one minute after the first. (Defendant Stephen Walker’s

Supplemental Statement of Undisputed Material Facts in Support of

His Motion for Summary Judgment (Defendant’s Supp. SUF), at ¶ 106).

Following the second burst, Trooper Walker radioed again for

assistance. (Defendant’s SUF, at ¶ 38).

Like the first burst, the second burst of pepper spray did

not seem to have any effect on Justiniano. However, some of the

spray blew back into Trooper Walker’s face and compromised his

vision. (Id., at ¶ 40). A witness observed that Justiniano

appeared “ready to fight now” and Trooper Walker jumped back

further into the travel lane of the roadway as he tried to clear

the pepper spray from his face. (Id., at ¶¶ 41, 77).

Another witness stated that Justiniano then came “raging” at

Walker with his fists up towards the Trooper’s face. (Id., at ¶

78). Yet another witness observed that Justiniano’s fist was

clenched and it appeared as though he might attack Trooper Walker.

(Defendant Stephen Walker’s Response to Additional Material Facts

Submitted By Plaintiff, (“Defendant’s Response”), at ¶ 104.2 For

his part, Trooper Walker recalled that just prior to the shooting,

Justiniano was running at him with a pen still in his hand, looking

angry, and yelling that he was going to kill him. (Id., at ¶ 41).

According to Winbush, Trooper Walker pulled his weapon out as

Justiniano was almost “on him.” Trooper Walker did not have time

to either fully extend his arm or warn Justiniano that he was going

to shoot. (Id. at ¶¶ 45, 79). Instead, Trooper Walker pointed

his firearm at Justiniano and shot twice from the hip, hitting

Justiniano once in the left wrist and once in the chest. (Id., at

¶ 43).

Kyriakides did not observe the shooting but she did hear the

gunshots. The last thing she saw before she heard the shots was

Justiniano trying to jump on Trooper Walker from about a foot away.

(Id., at ¶ 67).

Overall, the time interval between the second burst of pepper

spray and the shooting was less than twenty seconds. (Defendant’s

Supp. SUF, at ¶ 106).

After being shot, Justiniano stopped about four feet away

from Walker. (Defendant’s SUF, at ¶ 45). Trooper Walker backed

up and told Justiniano several times to get on the ground. (Id.).

2 To be sure, witnesses to the shooting describe Justiniano’s pre-shooting

movements differently but none disagree that Justiniano aggressively

approached Walker just prior to the shooting. (Defendant’s Response, at ¶

104).

Justiniano then went down to his knees and then onto his back as

Trooper Walker radioed that shots had been fired. (Id., at ¶ 46).

Trooper Walker then approached Justiniano. When he neared,

Justiniano grabbed his arm and tried to swing at him. (Id., at ¶¶

47, 81).

The first trooper on scene after the shooting observed Trooper

Walker in the travel lane of the roadway and Justiniano partially

in the travel lane. (Id., at ¶ 51). The trooper observed a shell

casing and a blue Bic round stick pen at the scene. (Id., at ¶

55). Winbush watched as another trooper came up to Justiniano and

tried to place handcuffs on him as he lay on the ground. (Id., at

¶ 81). Justiniano tried to grab the trooper so two other troopers

came to help. (Id.). Justiniano was eventually handcuffed and

transported by ambulance to a local hospital, where he died from

his wounds. (Id., at ¶¶ 81, 83).

II. LEGAL STANDARD

When the Court is presented with a motion for summary

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

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

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

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

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

assertion by affidavits, admissions, or other materials of

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

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

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

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

defeated by relying on improbable inferences, conclusory

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

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

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

opposing party must “produce specific facts, in suitable

evidentiary form, to establish the presence of a trialworthy

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

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

2 (1st Cir. 1999)).

When determining whether summary judgment is appropriate, “a

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

nonmoving party and give that party the benefit of all reasonable

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

Inc., 201 F.3d 29, 33 (1st Cir. 2000)). “Where the record taken

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

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

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

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

quotation marks omitted).

III. DISCUSSION

The complaint presently asserts two claims. Count I alleges

under 42 U.S.C. § 1983 that Trooper Walker used excessive force

against Justiniano, in violation of Justiniano’s Fourth Amendment

rights.

Count II ostensibly asserts two claims. It alleges a section

1983 claim for excessive force, in violation of Justiniano’s

Fourteenth Amendment rights, and also asserts a claim for wrongful

death under the Massachusetts Wrongful Death Statute, M.G.L. ch.

229. The plaintiff agreed at a court hearing that Count II should

be read as a practical matter to assert a single claim for wrongful

death under chapter 229.

A. Count I- Fourth Amendment Excessive Force Claim

Count I alleges under 42 U.S.C. § 1983 that Trooper Walker

acted wantonly and recklessly and used excessive force when he

fatally shot Justiniano. The defendant argues that he acted

reasonably in context, and that he is entitled to qualified

immunity even assuming he violated Justiniano’s rights.

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

but merely provides a method for vindicating federal rights

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

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

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

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

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

F. Supp. 30, 32 (D. Mass. 1996). For purposes of this motion,

there is no dispute that Trooper Walker was at all times acting

under color of law. There is also no dispute that Justiniano, at

the time of the shooting, was seized for purposes of the Fourth

Amendment. California v. Hodari D., 499 U.S. 621, 626 (1991);

Stamps v. Town of Framingham, No. 12-11908-FDS, 2014 U.S. Dist.

LEXIS 177455 *9-10 (December 26, 2014).

The Fourth Amendment guarantees “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. A

police officer’s use of deadly force is deemed a seizure under the

Fourth Amendment, and such an extreme action is reasonable only

when “at a minimum, a suspect poses an immediate threat to police

officers or civilians.” Jarrett v. Town of Yarmouth, 331 F.3d

140, 149 (1st Cir. 2003)(internal citations omitted). Whether the

use of deadly force violated an individual’s Fourth Amendment right

is determined by considering whether the officer’s conduct was

“objectively reasonable.” Graham v. Connor, 490 U.S. 386, 397

(1989).

The shooting of a mentally ill man was unquestionably tragic,

as such shootings always are, but tragedy does not equate with

unreasonableness. The determination of reasonableness must make

an allowance for the need of police officers to “make split second

judgments” in situations that are uncertain, tense, and evolving.

Berube v. Conley, 506 F.3d 79, 83 (1st Cir. 2007). The intentional

use of deadly force during a seizure is reasonable where an officer

had probable cause to believe the victim posed a threat of serious

physical harm or death. Tennessee v. Garner, 471 U.S. 1, 3 (1985).

The incident must be viewed from the “perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396. The inquiry is objective,

“without regard to [the officer's] underlying intent or

motivation.” Id. at 397.

Based on the record, the court finds that Trooper Walker acted

reasonably and did not use excessive force in violation of

Justiniano’s Fourth Amendment rights. To begin, Trooper Walker

had limited information as he arrived on scene. When he first

observed Justiniano, he was behaving erratically and jumping up

and down in or near a busy roadway, during the morning commute.

When Trooper Walker initially approached Justiniano to assess the

situation, Justiniano threatened to kill Trooper Walker if he did

not kill Justiniano first. Witnesses confirmed that Trooper Walker

attempted to calm Justiniano down through the use of verbal

techniques and hand gestures, to no avail.

Tensions rose further when Justiniano continued to approach

Trooper Walker and Walker in turn backed up into the travel lane

of a busy roadway where motorists were still operating vehicles.

Despite repeated instructions to stop, Justiniano continued to

approach Trooper Walker with a pen wielded in a threatening

manner.3

Trooper Walker sought again to deescalate the situation. He

warned Justiniano that he would use pepper spray if Justiniano

continued to advance and did not drop the pen. Justiniano did not

stop and Trooper Walker accordingly used the spray in an effort to

stop his advancement. Unfortunately, it did not work and

Justiniano in response approached more quickly with his hands

raised, “ready to fight.” Trooper Walker again used the pepper

spray to retard Justiniano’s advance but this time took some of

the spray himself, which in turn impaired his ability to see.

Even then, the record reflects that Trooper Walker did not

take action against Justiniano and instead radioed for back-up

assistance. Witnesses saw Justiniano running at Trooper Walker,

ready to “jump on him” from four feet away. It is at this point,

with his vision was compromised, standing in the travel lane of a

busy roadway, and with Justiniano rapidly approaching him

3 The plaintiff contends that there is a dispute whether Justiniano had a pen

where no other witness testified to seeing one. He argues that a pen is not a

dangerous weapon in any event. However, the record reflects that a pen was

found at the scene near to a shell casing, and no witness actually contradicted

Trooper Walker’s testimony by affirmatively stating that Justiniano did not

hold a pen. The court does not view this discrepancy as presenting an issue of

fact. And, assuming Justiniano did have a pen, it is clear that a pen can

become a dangerous weapon if it is used in a way that makes it capable of

causing serious harm. U.S. v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015).

apparently ready to fight, that Trooper Walker then removed his

firearm and fired twice from the hip.

Against that backdrop, the court cannot find that Trooper

Walker’s use of force was unreasonable. Justiniano told Trooper

Walker that he would kill him if Walker did not kill him first.

He also failed to obey Trooper Walker’s commands and warnings and

continued to come towards him. This heightened the risk of danger

because it signaled that Justiniano was non-compliant and because

it forced Trooper Walker to back up into the path of traffic to

maintain distance. Trooper Walker attempted to diffuse the

situation by issuing more warnings and by calling for assistance,

and shot Justiniano only after Justiniano suddenly closed the

distance between the two men in a manner that strongly suggested

he planned to attack Trooper Walker with a weapon. Under these

circumstances, it was not objectively unreasonable for Trooper

Walker to take the actions he took to ensure the safety of himself

and others nearby. Graham, 490 U.S. at 396 (court must “judge

[reasonableness] through the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight”).

Accordingly, despite the sad end to this encounter, the court finds

that Trooper Walker’s decision to shoot Wilfredo Justiniano was

objectively reasonable and comported with the Fourth Amendment.4

4 It bears noting that Trooper Walker’s conduct comported with the

Massachusetts State Police Use of Force Policy where he started with verbal

To be sure, the plaintiff argues that Trooper Walker should

have known from Justiniano’s erratic behavior that he was mentally

ill. The plaintiff argues that, assuming that is the case, Trooper

Walker’s use of deadly force to respond to the situation was

excessive and unjustified. In that regard, the First Circuit has

observed that a heightened level of care and concern may need to

be applied when evaluating the use of reasonable force in lethal

force cases where the individual is suicidal or troubled, but that

solicitude applies chiefly where the individual poses no real

security risk to anyone other than themselves. McKenny v. Mangino,

873 F.3d 75, 82 (1st Cir. 2017). Here, Justiniano posed a genuine

threat of harm to Trooper Walker and the situation moreover

threatened to spill into oncoming traffic and create a danger to

others. Under the circumstances, the court finds that Trooper

Walker did not act unreasonably even assuming there was a basis to

believe Justiniano had mental health issues. See e.g., City &

Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775

(2015)(officer justified in shooting mentally ill patient who had

a knife and continued to advance within feet of the officer after

pepper spray did not stop her). Similarly, the court finds no

basis to fault Trooper Walker for acting without waiting for backup

or first assessing whether a medical emergency existed. See Scarpa

techniques and only escalated to lethal force when Justiniano advanced upon

him in the roadway in a threatening manner. (Defendant’s SUF, at ¶¶ 3-11).

v. Murphy, 806 F.2d 326, 329 (1st Cir. 1986)(court will not second-

guess officer’s decision to not wait for backup assistance where

to have done so could be construed as a shirking of their duty).

B. Qualified Immunity

Even assuming arguendo that Trooper Walker’s conduct amounted

to a violation of Justiniano’s Fourth Amendment rights, the court

finds that he would be entitled to qualified immunity. “The

doctrine of qualified immunity shields officials from civil

liability so long as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). In determining whether a defendant is entitled to

qualified immunity, a court should consider: “(1) whether the facts

alleged or shown by the plaintiff make out a violation of a

constitutional right; and (2) if so, whether the right was clearly

established at the time of the defendant’s alleged violation.”

Ciolino v. Gikas, 861 F.3d 296, 303 (1st Cir. 2017). The second

prong has two components: “(a) whether the legal contours of the

right in question were sufficiently clear that a reasonable officer

would have understood that what he was doing violated the right,

and (b) whether in the particular factual context of the case, a

reasonable officer would have understood that his conduct violated

the right.” Id. While qualified immunity cannot protect Trooper

Walker from liability if, on an objective basis, no reasonably

competent officer would have acted as he did, “if officers of

reasonable competence could disagree on [the lawfulness of the

alleged conduct], immunity should be recognized.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). Thus, the defense of qualified

immunity “provides ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Id. at 349.

Here, assuming arguendo that Trooper Walker used unreasonable

force and that the right to be free from such force was clearly

established at the time, the relevant inquiry for qualified

immunity purposes is whether a reasonable, similarly situated

officer would have understood Trooper Walker’s conduct to violate

Justiniano’s rights. Viewing the facts in a light most favorable

to the plaintiff, the court finds that a reasonable officer would

not have clearly understood Trooper Walker’s conduct to be

unreasonable. Even accepting that one reasonably could wonder

whether Justiniano was mentally troubled, a similarly situated

officer would have concluded that Justiniano posed an imminent

threat to Trooper Walker, to himself and to others, and would not

have readily understood Trooper Walker’s actions to violate

Justiniano’s rights. Among other things, the encounter took place

on a busy roadway and Justiniano was already acting in an agitated

state when Trooper Walker arrived on scene. Then, in short order,

Justiniano threatened to kill Trooper Walker, failed to comply

with his commands, continued to advance towards him, positioned

his arms and hands as if he intended to fight, and then charged at

Trooper Walker. Further, interwoven among these acts, Trooper

Walker employed verbal de-escalation techniques, backed away, used

pepper spray and called for backup. The tragic way in which the

encounter ended tempts one to engage in wishful hindsight but the

record compels this court to conclude that no reasonable officer

standing in Trooper Walker’s position would have understood that

shooting at Justiniano in that context clearly violated

Justiniano’s constitutional rights.

Accordingly, even assuming Justiniano’s rights were violated,

the violation was not obvious to a reasonable officer and qualified

immunity therefore would shield Trooper Walker from liability.

See Holloman v. Markowski, 661 Fed. Appx. 797, 801 (4th Cir.

2016)(officer entitled to qualified immunity after using deadly

force on unarmed but physically resistant individual who had

destroyed property and attacked police officers); S.B. v. Cnty of

San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017)(officer entitled to

qualified immunity after shooting mentally ill and intoxicated man

who held a knife and failed to comply with officer’s orders); Vos

v. City of Newport Beach, 892 F.3d 1024, 1029 (9th Cir.

2018)(officers entitled to qualified immunity for using deadly

force on mentally ill and intoxicated man who charged officers

with scissors raised).

Summary judgment therefore will be granted on Count I.

C. Count II- Statutory Wrongful Death Claim

As noted above, Count II purports to allege a Fourteenth

Amendment section 1983 claim for excessive force as well as a

wrongful death claim pursuant to M.G.L. c. 229, § 2. Neither claim

has merit here.

The Fourteenth Amendment section 1983 claim has no force

because a claim of excessive force arising from a police encounter

is analyzed under the Fourth Amendment, not the Fourteenth.

Graham, 490 U.S. at 395 (“[a]ll claims that law enforcement

officers have used excessive force-deadly or not- in the course of

an arrest, investigatory stop, or other ‘seizure’ of a free citizen

should be analyzed under the Fourth Amendment and its

‘reasonableness standard’, rather than under a ‘substantive due

process’ approach’.”)

It is also not necessary to tarry long on Count II’s wrongful

death claim. Under M.G.L. c. 229, § 2, a person may be liable for

the death of another if the death is caused by the person’s

negligence or a willful, wanton or reckless act. The plaintiff

agreed at the hearing on the motion for summary judgment that his

wrongful death claim is derivative of his excessive force claim in

Count I, that is, it lives or dies depending on the outcome of

Count I. In that vein, the plaintiff notes in his brief that

Counts I and II both relate to “the constitutionality of the force

used.” As the court has found in evaluating the excessive force

claim in Count I that Trooper Walker did not use unreasonable force

or violate the plaintiff’s constitutional rights, that finding

undermines the plaintiff’s theory of liability underlying Count

II. It follows that Count II fails and that Trooper Walker is

entitled to summary judgment on count II.

IV. CONCLUSION

For the foregoing reasons, the Defendant’s Motion for Summary

Judgment (Dkt. No. 58) is GRANTED.

SO ORDERED.

/s/ Donald L. Cabell

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

DATED: September 30, 2018