Sheffield v. City of Boston

United States District Court

District of Massachusetts

)

Carla Sheffield, )

)

Plaintiff, )

)

v. )

) Civil Action No.

Mathew Pieroway and Joel Resil, ) 15-14174-NMG

)

Defendants. )

)

)

MEMORANDUM & ORDER

GORTON, J.

This suit arises out of the plaintiff’s claims that two

police officers violated Burrell Ramsey-White’s constitutional

rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights

Act. Specifically, plaintiff, on behalf of the deceased Ramsey-

White, alleges that the officers unreasonably seized him and

used excessive force in violation of the Fourth Amendment, among

other claims. The two officers have since moved for summary

judgment.

I. Background

A. Factual Background

In August, 2012, defendants Mathew Pieroway (“Pieroway”)

and Joel Resil (“Resil”) were on duty and in plain clothes with

the Boston Police Department’s Anti-Crime Unit when they

responded to a call concerning an African American male with a

red t-shirt peering into parked vehicles in Greenwich Park.

Burrell Ramsey-White (“Ramsey-White”), an African American male,

was driving a Cadillac with tinted windows in the same area.

Although Ramsey-White had not committed any traffic infractions

and did not match the description of the suspect peering into

parked vehicles, Resil ran the Cadillac’s license plate against

a law enforcement database and the officers followed Ramsey-

White. Shortly thereafter, the officers discovered that the

owner of the Cadillac, Jurrell Laronal, had an outstanding

default warrant and pulled over the Cadillac.

The officers approached the vehicle from both sides and

Pieroway asked Ramsey-White for his license and registration.

Ramsey-White asked Pieroway why he had been stopped but Pieroway

ignored the question and again asked Ramsey-White for his

license and registration. Ramsey-White provided his license to

Pieroway and again asked why he had been stopped. Pieroway did

not respond or examine Ramsey-White’s license. Eventually,

Resil looked at the license and realized that it did not match

the identification of the vehicle owner but failed to convey

that information to Pieroway or Ramsey-White.

Without making any effort to determine whether Ramsey-White

was the individual whose name appeared on the warrant, Pieroway

decided to arrest Ramsey-White for “questioning the officers’

orders” and ordered him to get out of the car. Ramsey-White

turned off the engine but did not get out, again asked what he

had done wrong and, at some point, reached behind the center

console towards the floorboards of the backseat. Without

responding to Ramsey-White’s questions, Pieroway pulled on the

locked door and then reached into the car through the open

driver’s side window while Resil, who was on the passenger side

of the car, put his hand on his holstered firearm. As Pieroway

began to reach into the car, Ramsey-White started the car,

closed the window and drove away. The officers returned to

their car and pursued Ramsey-White’s vehicle.

Although the Boston Police Department Operations Supervisor

instructed Pieroway and Resil to terminate the pursuit, the

officers ignored the order. Ramsey-White eventually abandoned

the car and fled on foot but he had left his license behind so

that the officers could identify him. Pieroway got out of his

car and gave chase while Resil checked the Cadillac to ensure

that it was parked before joining Pieroway’s pursuit of Ramsey-

White. As Pieroway chased Ramsey-White, he yelled repeatedly

for Ramsey-White to stop running, to put his hands where

Pieroway could see them and threatened to shoot Ramsey-White if

he failed to do so. Ramsey-White did not respond to Pieroway’s

commands and continued to flee. Eventually, Pieroway caught up

to Ramsey-White with his weapon drawn. When Ramsey-White turned

toward Pieroway, he shot Ramsey-White in the chest.

As Resil approached the scene, he heard the gunshot and

Pieroway shout “don’t make me shoot you again”. Pieroway

informed Resil that Ramsey-White had been shot in the chest and

that Ramsey-White’s weapon was in a dumpster nearby. Resil used

his radio to report the officer-involved shooting but did not

report Ramsey-White’s injury or request Emergency Medical

Services (EMS). Ramsey-White was handcuffed and patted down for

weapons. After the pat down, Resil told Ramsey-White to turn

over but he was unresponsive.

Shortly thereafter, three other Boston police officers

arrived on the scene, called for EMS and began to administer

first aid to Ramsey-White. Ramsey-White was transported to

Boston Medical Center where he was pronounced dead.

B. Procedural Background

In 2015, Carla Sheffield (“Sheffield” or “the plaintiff”),

as the personal representative of the estate of Ramsey-White,

filed a complaint under 42 U.S.C. § 1983 and the Massachusetts

Civil Rights Act (“the MCRA”) against the City of Boston, Mathew

Pieroway, Joel Resil and several unidentified defendants in

Suffolk Superior Court. The City of Boston removed the action

to this Court and filed a motion to dismiss. Shortly

thereafter, plaintiff filed an amended complaint which alleges

1) battery against Officer Pieroway (Count I), 2) assault

against Officers Pieroway and Resil (Count II), 3) MCRA

violations by Officer Pieroway (Count III), 4) MCRA violations

by Officer Resil (Count IV), 5) federal civil rights violations

by Officer Pieroway (Count V), 6) federal civil rights

violations by Officer Resil (Count VI) and 7) intentional

infliction of emotional distress (“IIED”) by all defendants

(Count IX).

In 2017, this Court adopted Magistrate Judge Kelley’s

Report and Recommendation, which dismissed the claim against the

City of Boston (Count VIII). One year later, defendants

Pieroway and Resil filed separate motions for summary judgment

that are now pending before this Court.

II. Legal Analysis

A. Legal Standard

The role of summary judgment is 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 (1st 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.

If the moving party has satisfied its burden, the burden

shifts to the nonmoving 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 nonmoving 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 the

nonmoving 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. Celotex Corp., 477 U.S.

at 322–23.

B. Resil’s Motion for Summary Judgment (Docket No. 84)

Resil moves to dismiss all claims against him, specifically

the claims of 1) assault (Count II), 2) MCRA violations (Count

IV), 3) federal civil rights violations (Count VI) and 4)

intentional infliction of emotional distress (Count IX).

1. Federal Constitutional Claims (Count VI)

In the amended complaint, plaintiff alleges that Resil

violated Ramsey-White’s federal constitutional rights by 1)

seizing Ramsey-White in violation of the Fourth Amendment, 2)

denying Ramsey-White medical treatment in violation of the

Eighth and Fourteenth Amendments, 3) using excessive force

against Ramsey-White in violation of the Fourth Amendment and 4)

subjecting him to unequal treatment in violation of the

Fourteenth Amendment.

a. Seizure, Exit Order and Pursuit

Resil argues that the seizure and pursuit claims should be

dismissed because this Court already found the actions of the

officers to be constitutional when it dismissed the City of

Boston as a party to this suit. See Docket No. 67. This Court

agrees with the analysis set forth in the Report and

Recommendation issued by Magistrate Judge Kelley, which found

that the officers did not violate the Fourth Amendment with

respect to the initial stop of the car (“the seizure”), the exit

order or the pursuit. See Docket No. 62; Pennsylvania v. Mimms,

434 U.S. 106, 111 (1977) (holding that officers may order a

driver or passenger out of vehicle that has been lawfully

stopped for a traffic violation absent reasonable suspicion);

Cty. of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (holding

that the Fourth Amendment only covers “searches” and “seizures”

and that a police pursuit in attempting to seize a person does

not amount to a “seizure” within the meaning of the Fourth

Amendment).

Accordingly, Resil’s motion for summary judgment as to the

federal constitutional claims stemming from the initial seizure,

exit order and pursuit will be allowed.

b. Medical Care

Plaintiff has since conceded her claim that Resil failed to

provide medical care to Ramsey-White when he was injured while

apprehended by police. Accordingly, summary judgment with

respect to the failure to provide medical care in violation of

the Due Process Clause will be allowed.

c. Excessive Force

Plaintiff alleges that Resil is liable for Pieroway’s

excessive force under a joint venture theory of liability

because Resil 1) remained silent about the officers’

misidentification of Ramsey-White throughout the course of the

initial stop up until the shooting and 2) encouraged Pieroway to

continue following Ramsey-White during the pursuit. In effect,

plaintiff argues that but-for Resil’s silence and encouragement,

Pieroway would not have used excessive force in detaining

Ramsey-White.

Resil responds that he cannot be held liable for Pieroway’s

actions because he was not present when Pieroway discharged his

firearm, never un-holstered his firearm and did not see Pieroway

engage with Ramsey-White during the foot pursuit. Thus, Resil

contends that he never knew that Pieroway would use force, let

alone deadly force.

Personal participation by an individual in the deprivation

of a constitutional right is not required to establish liability

under § 1983, so long as plaintiff establishes the requisite

causal connection. Gutierrez-Rodriguez v. Cartagena, 882 F.2d

553, 561 (1st Cir. 1989). That causal link may be established

if the defendant sets in motion a series of acts by others which

the actor knows or reasonably should know would cause others to

inflict the constitutional injury. Id. Moreover, an officer who

is present at the scene of an arrest and fails to take

reasonable steps to protect the victim of another officer’s use

of excessive force can be held liable under § 1983 for his

nonfeasance, provided that he had a “realistic opportunity” to

prevent the other officer’s actions. Martinez v. Colon, 54 F.3d

980, 985 (1st Cir. 1995). Mere presence by the non-offending

officer does not, however, establish joint venture liability.

Wilson v. Town of Mendon, 294 F.3d 1, 15 (1st Cir. 2002).

Viewing the entire record in the light most favorable to

the nonmoving party, plaintiff has alleged facts sufficient to

state a claim of excessive force against Resil who could have,

and perhaps should have, deescalated the encounter that led to

the shooting. In support of that claim, plaintiff has

demonstrated that Resil 1) knew that Ramsey-White and the

vehicle owner (who had the outstanding warrant) were not one and

the same, 2) failed to notify Pieroway of that misidentification

and 3) encouraged Pieroway to pursue Ramsey-White, despite an

order from a superior officer to terminate the pursuit.

Because a reasonable jury could conclude that Resil had a

realistic opportunity to prevent the use of excessive force, his

motion for summary judgment with respect to the use of excessive

force in violation of the Fourth Amendment will be denied.

d. Equal Protection Claim

Plaintiff, in her opposition to Resil’s motion for summary

judgment, submits that she will not be pursing her equal

protection claim because

[D]iscovery did not produce evidence of misconduct . . .

and the dismissal of her municipal and supervisory

liability claims precluded discovery on that issue.

Opposition of Plaintiff at 17 n. 3.

Accordingly, Resil’s motion for summary judgment on plaintiff’s

discontinued equal protection claim will be allowed.

2. Assault Claim (Count II)

Plaintiff contends that her arguments with respect to joint

venture liability under the federal excessive force claim also

support her state law assault claim. When a plaintiff alleges

both a § 1983 excessive force claim and common law claim for

assault and battery, the determination of the reasonableness of

the force used under § 1983 controls the common law assault and

battery claim. Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir.

2010). Because this Court has determined that plaintiff has a

viable excessive force claim against Resil, plaintiff’s assault

claim survives as well.

Accordingly, Resil’s motion for summary judgment with

respect to the alleged assault will be denied.

3. MCRA Claim (Count IV)

To establish a claim under the MCRA, the plaintiff must

prove that the exercise or enjoyment of rights secured by the

Constitution or laws of either the United States or of the

Commonwealth has been interfered with, or attempted to be

interfered with, by threats, intimidation or coercion. Bally v.

Ne. Univ., 532 N.E.2d 49, 51–52 (1989).

With respect to the allegations that the officers violated

Ramsey-White’s civil rights during the seizure, the parties

dispute the scope of an officer’s authority to order an

individual out of his or her vehicle (i.e., an exit order) under

Massachusetts law. In Commonwealth v. Gonsalves, the

Massachusetts Supreme Judicial Court (“SJC”) rejected the Mimms-

Wilson rule set forth by the U.S. Supreme Court, which allows

officers to order a driver or passenger out of vehicle that has

been lawfully stopped for a traffic violation absent reasonable

suspicion. The SJC held, conversely, that once a stopped driver

has produced the necessary papers which are found to be in

order, the driver and any passengers must be promptly released.

Com v. Gonsalves, 711 N.E.2d 108, 115 (1999). Only if the

officer has established a reasonable basis to justify an exit

order or search based on safety concerns will such an exit order

be upheld. Id. at 112–13.

Plaintiff argues that Gonsalves applies here and that once

Resil knew that Ramsey-White was not the subject of the warrant,

authority for seizing the vehicle ceased and the officers’

additional investigation was unreasonable absent additional

justification. She contends that Ramsey-White’s nervousness,

evasiveness and failure to produce registration did not provide

justification for protracting the seizure and that Pieroway’s

refusal to look at Ramsey-White’s license is evidence that the

officers did not fear for their safety.

Resil responds that there is no underlying federal

constitutional violation and that Gonsalves does not apply

because 1) Pieroway, not Resil, ordered Ramsey-White out of the

car and 2) the officers had reasonable suspicion to pull over

Ramsey-White. Assuming Gonsalves does apply, however, Resil

contends that the officers had reasonable safety concerns that

justify the exit order. Finally, Resil submits that plaintiff

has provided no evidence that the officers engaged in threats,

intimidation or coercion.

Neither the Court nor the parties dispute the validity of

the initial traffic stop because the officers reasonably

believed that the driver of the vehicle had an outstanding

warrant. As such, the Court limits its consideration to the

validity of the exit order under Massachusetts law. In the

Commonwealth, there are three scenarios under which an exit

order issued to a passenger in a validly stopped vehicle is

justified: 1) an objectively reasonable concern for the safety

of the officer, 2) reasonable suspicion that the passenger is

engaged in criminal activity and 3) “pragmatic reasons” which

would justify a warrantless search under the automobile

exception. Com. v. Cruz, 945 N.E.2d 899, 906–07 (2011) (quoting

Com v. Gonsalves, 711 N.E.2d 108, 115 (1999)).

Plaintiff has alleged facts sufficient for a reasonable

jury to conclude that the officers were not justified in

ordering Ramsey-White to get out of the car under any of the

three scenarios. With respect to officer safety, Ramsey-White’s

nervousness and evasiveness do not rise to the level of

reasonable suspicion. Com v. Cordero, 74 N.E.3d 1282, 1289-90

(2017). Despite the fact that Ramsey-White did not produce the

vehicle registration, there is no evidence that the officers had

a reasonable suspicion of criminal activity because they concede

that Ramsey-White committed no traffic violations either before

or during the stop.1 Moreover, any alleged safety concern should

have been relieved once Resil realized that the driver did not

have an outstanding warrant. Finally, there is no evidence that

the officers had probable cause to conduct a warrantless search

under the automobile exception to the warrant requirement.

Accordingly, a reasonable jury could conclude that the officers

were not justified in ordering Ramsey-White out of the car.

The analysis does not, however, stop there. To prevail

under the MCRA, plaintiff must also demonstrate that defendant

engaged in the use of threats, intimidation or coercion.

Viewing the entire record in the light most favorable to the

nonmoving party, plaintiff has proffered enough evidence to

support an inference that Resil interfered with or attempted to

interfere with Ramsey-White’s constitutional rights through

threats, intimidation or coercion. Neither Resil nor Pieroway

informed Ramsey-White why they had pulled him over, despite

repeated inquiries. The officers approached the vehicle from

both sides and, at one point, Resil placed his hand on his

holstered firearm during the interaction. A reasonable jury

could conclude that the officers’ surrounding presence, display

of weaponry and non-responsiveness amounted to a threat or

intimidation under the MCRA. Planned Parenthood League of

1 Of course, the officers did have reasonable suspicion when

Ramsey-White fled but that is after the fact.

Massachusetts, Inc. v. Blake, 631 N.E.2d 985, 990 (1994)

(holding that “threat” involves the intentional exertion of

pressure to make another fearful or apprehensive of injury or

harm and “intimidation” involves putting in fear for the purpose

of compelling or deterring conduct); see also Brown v. Sweeney,

526 F. Supp. 2d 126, 134 (D. Mass. 2007) (same).

Accordingly, because a reasonable jury could conclude that

the exit order was unjustified and that Resil engaged in

intimidation at the time, Resil’s motion for summary judgment

with respect to plaintiff’s MCRA claim will be denied subject to

a qualified immunity analysis.

4. Intentional Infliction of Emotional Distress Claim

(Count IX)

To prevail on an intentional infliction of emotional

distress (“IIED”) claim, plaintiff must show that 1) Resil

intended to inflict emotional distress or that he knew or should

have known that emotional distress was the likely result of his

conduct, 2) Resil’s conduct was “extreme and outrageous”, 3)

Resil’s actions caused plaintiff’s distress, and 4) plaintiff’s

emotional distress was severe. Agis v. Howard Johnson Co., 355

N.E.2d 315, 318–19 (1976).

Notwithstanding the fact that plaintiff has not identified

what conduct in particular caused the alleged emotional

distress, there is no evidence in the record that Resil’s

actions were “extreme and outrageous” or “beyond all possible

bounds of decency”. At most, Resil remained silent about

Ramsey-White’s misidentification, placed his hand on his

holstered weapon when his partner began questioning Ramsey-

White, participated in the pursuit of Ramsey-White after he fled

and arrested Ramsey-White after the shooting. There is no

evidence of an unlawful arrest or extreme and outrageous conduct

toward Ramsey-White by Resil during the encounter and subsequent

arrest.

Accordingly, Resil’s motion for summary judgment with

respect to plaintiff’s IIED claim will be allowed.

5. Qualified Immunity

Resil asserts that he is entitled to qualified immunity,

which plaintiff opposes. The First Circuit applies a three-part

test when determining if qualified immunity applies: 1) whether

the plaintiff’s allegations, if true, establish a

constitutional violation, 2) whether the constitutional right at

issue was clearly established at the time of the putative

violation and 3) whether a reasonable officer, situated

similarly to the defendant, would have understood the challenged

act or omission to contravene the discerned constitutional

right. Cox v. Hainey, 391 F.3d 25, 29–30 (1st Cir. 2004); see

also Duarte v. Healy, 537 N.E.2d 1230, 1232 (1989) (concluding

that the contours of qualified immunity with respect to the MCRA

are intended to be coextensive with § 1983). If all three

questions are answered in the affirmative, qualified immunity is

not warranted. Guillemard-Ginorio v. Contreras-Gomez, 490 F.3d

31, 38 (1st Cir. 2007).

a. Excessive Force

The first question is easily decided in plaintiff’s favor

because her allegations establish violations under the Fourth

Amendment and the state law corollary of assault and battery.

As to the second question of clearly established law, the

plaintiff has pointed to a “consensus of cases of persuasive

authority” that broadcasts “a clear signal to a reasonable

official” that the conduct in question “falls short of the

constitutional norm”. McKenney v. Mangino, 873 F.3d 75, 81 (1st

Cir. 2017).

Specifically, in the context of excessive force, courts

have held a bystander officer liable for acts of excessive force

provided his acts are a proximate cause of plaintiff’s injuries.

See, e.g., Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561

(1st Cir. 1989) (holding a non-shooting officer liable for

another officer’s shooting under joint venture liability);

Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 207

n.3 (1st Cir. 1990) (holding that an officer who is present at

the scene and who fails to take reasonable steps to protect the

victim of another officer’s use of excessive force can be held

liable under § 1983 for his nonfeasance); Wilson, 294 F.3d at 15

(a constitutional duty to intervene may arise if onlooker

officers are instrumental in assisting the actual attacker to

place the victim in a vulnerable position); Howe v. Town of N.

Andover, 854 F. Supp. 2d 131, 143 (D. Mass. 2012) (holding that

police officers are likewise on notice that they have an

affirmative duty to intervene to prevent excessive force when

they have the means and opportunity to do so); Melear v.

Spears, 862 F.2d 1177, 1186 (5th Cir. 1989) (holding a police

officer liable under § 1983 where he guarded a door during the

commission of an illegal search by other officers); Gagnon v.

Ball, 696 F.2d 17, 21 (2d Cir. 1982) (holding that an officer,

in declining to intercede on plaintiff’s behalf and who assisted

in the unlawful detention, was liable).

As to the third question, this Court finds that, if the

facts were as plaintiff claims them to be, Resil had fair

warning that a Fourth Amendment violation was imminent. See Cady

v. Walsh, 753 F.3d 348, 359-60 (1st Cir. 2014) (holding that a

district court’s pretrial rejection of a qualified immunity

defense is not immediately appealable to the extent that it

turns on either an issue of fact or an issue perceived by the

trial court to be an issue of fact).

Accordingly, the Court finds that Resil is not entitled to

qualified immunity with respect to joint venture liability for

excessive force.

b. Exit Order

Courts have discretion when considering qualified immunity

and are not required to follow the three-step inquiry

chronologically. Pearson v. Callahan, 555 U.S. 223, 236 (2009)

(courts should be permitted to exercise their sound discretion

in deciding which of the prongs of the qualified immunity

analysis should be addressed first).

With respect to the second prong of clearly established

law, the Court finds that plaintiff has not met its burden of

demonstrating that an officer who was present but did not order

a passenger to get out of the vehicle can be held liable for

invoking an unconstitutional exit order. See White v. Pauly, 137

S. Ct. 548, 552 (2017) (reiterating that “clearly established

law” must be “particularized” to the facts of the case).

Accordingly, Resil is entitled to qualified immunity as to

the exit order but not as to the claims for excessive force.

C. Pieroway’s Motion for Partial Summary Judgment (Docket

No. 87)

Pieroway moves for partial summary judgment with respect to

plaintiff’s MCRA claims against him (Count III) and all federal

constitutional violations, except for the alleged excessive

force claim (Count V).2

1. Federal Constitutional Claims (Count V)

a. Seizure, Exit Order and Pursuit

As the Court has explained previously, it finds no Fourth

Amendment violation with respect to the initial stop of the car

(“the seizure”), the exit order or the pursuit.

b. Medical Care and Equal Protection Claims

Plaintiff has not specifically raised a medical care or

equal protection claim in her opposition to Pieroway’s motion

for summary judgment, and the Court assumes, consistent with

plaintiff’s position with respect to Resil, that she waives this

argument for purposes of summary judgment.

Accordingly, Pieroway’s motion for partial summary judgment

with respect to all federal claims other than the excessive

force claim will be allowed.

2 Pieroway concedes that there exists a material dispute of fact

with respect to the excessive force claim.

2. MCRA Claim (Count III)

This Court has dismissed plaintiff’s federal civil rights

claims with respect to 1) the seizure, the exit order and the

pursuit, 2) the medical care received at the time of the arrest

and 3) the equal protection violation. Thus, plaintiff’s only

remaining claims against Pieroway are her claims with respect to

the exit order under Massachusetts law and for excessive force

(as to which Pieroway does not seek summary judgment).

The Court adopts its prior analysis and concludes that

there is a genuine issue of material fact as to whether the

officers had reasonable suspicion to justify the exit order. In

fact, plaintiff’s claim is stronger with respect to Pieroway

because 1) he specifically chose not to look at Ramsey-White’s

license, 2) declined to inform Ramsey-White of why he was being

ordered out of the car and arrested, 3) ordered Ramsey-White out

of the car and 4) forcibly attempted to open the car door

without explanation.

Moreover, Pieroway concedes that there is a genuine issue

of material fact with respect to the excessive force claim and

plaintiff has proffered evidence that Pieroway made threatening

remarks to Ramsey-White moments before Pieroway discharged his

weapon. Thus, plaintiff has presented an issue for the jury

with respect to her exit order and excessive force claims.

Accordingly, Pieroway’s motion for partial summary judgment

will be denied as to the exit order and the claims for excessive

force under the MCRA.3

3. Qualified Immunity

Pieroway contends that he is entitled to qualified

immunity. The Court finds that he is not so entitled as to any

of the remaining claims because 1) plaintiff has alleged a

violation under Massachusetts law, 2) Massachusetts law makes

clear that officers cannot order an individual out of his car

without a reasonable safety concern and 3) a reasonable officer

in his position would not have ordered Ramsey-White out of the

car without first confirming his identity as the individual with

an outstanding warrant. See Cox, 391 F.3d at 29–30. Pieroway

has not argued qualified immunity with respect to the alleged

excessive force and thus the Court need not address that issue.

3 Although Pieroway does not move for summary judgment with

respect to the MCRA claim of excessive force, plaintiff

addresses that claim in her opposition.

ORDER

For the foregoing reasons, defendant Resil’s motion for

summary judgment (Docket No. 84) is ALLOWED with respect to:

1) the seizure, exit order and pursuit claims under the

Fourth Amendment;

2) the medical care claim under the Eighth and Fourteenth

Amendments;

3) the equal protection claim under the Fourteenth

Amendment;

4) the IIED claim under Massachusetts law; and

5) the exit order claim under Massachusetts law.

With respect to the excessive force and assault and battery

claims, Resil’s motion for summary judgment is DENIED.

Defendant Pieroway’s motion for partial summary judgment

(Docket No. 87) is, with respect to the federal constitutional

claims other than the excessive force claim, ALLOWED, but is

otherwise DENIED.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated February 22, 2019