Calabrese-Kelley v. Town of Braintree

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

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Karen Calabrese-Kelley )

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Plaintiff, )

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v. ) Civil Action No. 1:17-cv-10876-LTS

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Town of Braintree, et al )

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Defendants. )

)

ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC. NO. 24)

March 8, 2019

SOROKIN, J.

Defendants move for summary judgment on grounds of qualified immunity where the

plaintiff alleges false arrest, false imprisonment, a violation of 42 U.S.C. § 1983, and a violation

of the Massachusetts Declaration of Rights. Plaintiff opposes. For the reasons that follow, the

defendants’ motion for summary judgment is ALLOWED.

I. FACTS

It is undisputed that on the evening of February 21, 2014, the plaintiff, Karen Calabrese-

Kelley, and her ex-husband, William Kelley, arranged to meet in a Kmart parking lot in

Braintree to exchange custody of two of their four children. Doc. No. 31 ¶¶ 11-17. During the

exchange of their children, Ms. Calabrese-Kelley and Mr. Kelley had an interaction that resulted

in them both calling 911. Id. ¶¶ 35-36. Three officers from the Braintree police department

responded to the call and eventually arrested Ms. Calabrese-Kelley. Id. ¶ 63.

Because the primary question is whether the officers who responded to the 911 calls are

entitled to qualified immunity with respect to their arrest of Ms. Calabrese-Kelley, the facts are

described as they were known to the officers at the time of the arrest. However, the facts are

presented in the light most favorable to Ms. Calabrese-Kelley, with all reasonable inferences

drawn in her favor, pursuant to the standard for deciding a motion for summary judgment.1 See

LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (on summary judgment, a 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”).

When Ms. Calabrese-Kelley called 911, she told the dispatcher that her ex-husband had

assaulted her by pushing her, that he was a police officer, and that they were in the Braintree

Kmart parking lot with their children. Doc. No. 26-1 at 69-70. Three officers from the Braintree

Police Department responded to the 911 calls: Officer John McNamara, Officer David Clark, and

Sergeant Charles Bata. Doc. No. 26-3 at 23. Prior to their arrival at the scene, the dispatcher

told the officers that it was a domestic dispute involving an off-duty Boston police officer. Doc.

No. 26-1 at 72, Doc. No. 26-8 at 26.

Sergeant Bata describes his observations of the scene as: “there were two parties there,

the male and female parties, two separate cars, a few spaces apart.” Doc. No. 26-3 at 27. When

Sergeant Bata arrived, Officer McNamara was speaking with Ms. Calabrese-Kelley. Id. Both

children were in Ms. Calabrese-Kelley’s car at that time. Doc. No. 26-7 at 21.

The following information was obtained by the officers from Ms. Calabrese-Kelley, who

“was very emotional” while talking to the officers. Doc. No. 26-7 at 21. After she and Mr.

Kelley both arrived in the parking lot, she carried one of their daughter’s hockey bag and stick to

Mr. Kelley’s car. Id. at 82. Mr. Kelley did not want to take the hockey equipment from her. At

1 The facts as presented herein differ, to varying degrees, from the facts as the officers have

asserted them. Where material, those disputed facts are noted.

some point while she was trying to give him the equipment, Mr. Kelley pushed her to the

ground.2 Doc. No. 31 ¶ 58. Because she was holding the hockey equipment, the hockey stick

“swung out when [she] fell.” Doc. No. 26-1 at 83. Ms. Calabrese-Kelley showed Sergeant Bata

and Officer McNamara her “bloody knee” and the injuries on her hands which she got when Mr.

Kelley pushed her to the ground. Doc. No. 26-1 at 85. Furthermore, she told the officers that

Mr. Kelley knocked one of their daughters to the ground at some point during the incident. Id. at

79-80. None of the officers asked either of the two children, ages not revealed in the record,

what happened between Mr. Kelley and Ms. Calabrese-Kelley. Doc. No. 31 ¶ 73.

The following information was obtained by Officer Clark and Sergeant Bata from Mr.

Kelley, who was “calm” during his conversation with them.3 Doc. No. 26-8 at 21, 28. Mr.

Kelley told the officers that “he was there for a child custody swap and that [Ms. Calabrese-

Kelley] hit him with a hockey stick.” Doc. No. 26-3 at 27. He said that Ms. Calabrese-Kelley

“wanted him to take the bag that belonged to his daughter,” and that “she came to the car and

tried to put it in the car.”4 Doc. No. 26-3 at 29, 31. He said “he got in front of her and blocked

2 Sergeant Bata says he did not learn of Ms. Calabrese-Kelley’s assertion that Mr. Kelley pushed

her until after the arrest; however, she says she told the dispatcher and Officer McNamara at the

scene. Drawing all reasonable inferences in her favor, a jury could conclude Sergeant Bata knew

of this assertion prior to her arrest.

3 Ms. Calabrese-Kelley disputes the truthfulness of some of the things Mr. Kelley told the

officers that night. However, she cannot and does not dispute that Mr. Kelley did in fact make

these statements to the officers.

4 Sergeant Bata testified at his deposition that Mr. Kelley stated he was not going to take the

hockey equipment from Ms. Calabrese-Kelley on that evening because he did not have custody

that weekend of the daughter to whom the equipment belonged. Doc. No. 26-3 at 30-31.

However, at Ms. Calabrese-Kelley’s criminal trial in this matter, Mr. Kelley testified that he

never told the Braintree police that he was not going to take the hockey equipment or that he did

not have custody of that daughter. If Mr. Kelley is called to testify in this matter, the Court

presumes that either Mr. Kelley will testify in accordance with his prior testimony given in the

criminal matter, and if not, that testimony will be admissible as a prior inconsistent statement

given under oath. See Fed. R. Evid. 801(d)(1)(A). The Court therefore treats Mr. Kelley’s trial

testimony as admissible evidence for summary judgment in this matter. Accordingly, what, if

her from putting it in.” Doc. No. 26-9. Sergeant Bata observed a hockey stick and bag in the

back seat of Mr. Kelley’s car. Doc. No. 26-3 at 28. Mr. Kelley told the officers that Ms.

Calabrese-Kelley “either fell on the ground, or . . . hit her head and knee on the [car] door.” Doc.

No. 26-8 at 22. He also told the officers that that one of their children had gotten into his car

before the altercation. Doc. No. 26-9 at 1. However, when the officers arrived, both children

were in Ms. Calabrese-Kelley’s car. Doc. No. 26-7 at 21. Mr. Kelley stated that he had been hit

on the back of his legs. Doc. No. 26-3 at 32. The officers did not look at his legs to see whether

there were any marks on them. Id. Though the officers knew that Mr. Kelley was an off-duty

police officer, none of them asked whether he had a firearm on him at any point. Doc. No. 26-3

at 26. At some point, Officer Clark took “control of the hockey stick and put it in his cruiser.”

Doc. No. 26-7 at 23.

Ultimately, Sergeant Bata made the decision to arrest Ms. Calabrese-Kelley because he

determined that she was the “aggressor” in the situation. Doc. No. 26-3 at 34. She was arrested

and transported to the Braintree Police Station. Doc. No. 31 ¶ 63. She was later tried for and

acquitted of assault and battery with a dangerous weapon. Doc. No. 31 ¶ 70. She now brings an

action against Sergeant Bata, Officer McNamara, Officer Clark, and the dispatcher on the 911

call (the “individual defendants”), as well as the Town of Braintree and the Braintree Police

Department. Her complaint alleges four counts stemming from her arrest: (1) false arrest, (2)

false imprisonment, (3) a violation of 42 U.S.C. § 1983, and (4) a violation of the Massachusetts

Declaration of Rights (“MCRA claim”).

anything, Mr. Kelley told the officers about his willingness to take the hockey equipment or his

understanding of the custody arrangement is a disputed fact and thus unavailable for

consideration on the officers’ summary judgment motion.

II. LEGAL STANDARD

The Court applies the familiar summary judgment 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). 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)). Moreover,

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 American

Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court must ignore “conclusory

allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of

Springfield, 561 F.3d 7, 14 (1st Cir.2009).

“Under the doctrine of qualified immunity, police officers are protected ‘from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Mlodzinski v. Lewis,

648 F.3d 24, 32 (1st Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To

defeat qualified immunity, “‘the facts alleged or shown by the plaintiff” must ‘make out a

violation of a constitutional right’ and the right must have been ‘clearly established’ at the time

of the defendant’s alleged violation.” Id. (quoting Pearson, 555 U.S. at 231). To determine

whether the right was clearly established, the Court must consider

(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. at 32-33. On summary judgment, the Court must “identify the “version of events that best

comports with the summary judgment standard and then ask whether, given that set of facts, a

reasonable officer should have known that his actions were unlawful.” Id. at 29. Additionally,

“the Supreme Judicial Court of Massachusetts has held that MCRA claims are subject to the

same standard of immunity for police officers that is used for claims asserted under § 1983.”

Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir. 2010) (citing Duarte v. Healy, 405 Mass. 43, 46

(1989). Accordingly, the analysis of whether the individual defendants are entitled to qualified

immunity applies equally to both Count III and Count IV.

III. DISCUSSION

A. Claims Against the Individual Defendants

“The Fourth Amendment right to be free from unreasonable seizures of the person

demands that an arrest be supported by probable cause.” Santiago v. Fenton, 891 F.2d 373, 383

(1st Cir. 1989) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). The Massachusetts common law

requirement “that an officer have ‘reasonable grounds’ for making an arrest . . . has been held to

be ‘substantially overlapping’ with the constitutional requirement of ‘probable cause.’” Id.

(citing Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987)). Therefore, Ms. Calabrese-Kelley

may only prevail on each of her four claims if her arrest was not supported by probable cause.

Additionally, the First Circuit has held that

a police officer should not be found liable under § 1983 for a warrantless arrest

because the presence of probable cause was merely questionable at the time of the

arrest. His qualified immunity is pierced only if there clearly was no probable cause

at the time the arrest was made.

Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985). Whether “a reasonable policeman, on the basis of

the information known to him, could have believed there was probable cause is a question of

law, subject to resolution by the judge not the jury.” Prokey v. Watkins, 942 F.2d 67, 73 (1st

Cir. 1991). “Nevertheless, if what the policeman knew prior to the arrest is genuinely in dispute,

and if a reasonable officer’s perception of probable cause would differ depending on the correct

version, that factual dispute must be resolved by a fact finder.” Id.

In this case, Sergeant Bata made the decision to arrest Ms. Calabrese-Kelley. The

relevant facts are those facts known to the officers, as recited above by the Court.

The question before the Court is not whose version of events (Mr. Kelley’s or Ms.

Calabrese-Kelley’s) is in fact true,5 but whether a reasonable officer could have concluded that

there was probable cause to arrest Ms. Calabrese-Kelley, based on the facts as described. A

reasonable officer, based on the information known to Sergeant Bata, could have rejected Ms.

Calabrese-Kelley’s version of events and accepted Mr. Kelley’s version, thereby concluding that

Ms. Calabrese-Kelley was the aggressor. In that case, there would be probable cause she had

committed assault and battery with a dangerous weapon (the hockey stick). That is, a reasonable

officer could have concluded, as the officers in this case did, that Ms. Calabrese-Kelley struck

first, as Mr. Kelley told them. Some other facts supported or were consistent with this

conclusion, such as the fact that both parties agreed Ms. Calabrese-Kelley was the one who

approached Mr. Kelley’s car. Whether Ms. Calabrese-Kelley striking first was the “correct”

conclusion6 is not the legal issue on the pending motion, because even if “the presence of

5 The relevant facts bearing on that question are broader and more substantial than the facts

recited by the Court.

6 The wisdom of making an arrest in this case is not before the Court, but the Court notes that

Massachusetts law may have required the officers to make an arrest. The relevant law provides:

Whenever any law officer has reason to believe that a family or household member

has been abused or is in danger of being abused, such officer shall use all reasonable

means to prevent further abuse. The officer shall take, but not be limited to the

following action . . .

probable cause was merely questionable at the time of the arrest,” the officers are entitled to

qualified immunity.7 Floyd, 765 F.2d 5. Viewing the facts in the light most favorable to Ms.

Calabrese-Kelley and drawing all reasonable inferences in her favor, it cannot be said that there

“clearly was no probable cause at the time the arrest was made.” Id. In light of this conclusion,

the officers are entitled to qualified immunity, and the false arrest, false imprisonment, and

MCRA claims all fail. Thus, the motion for summary judgment is ALLOWED as to Counts I, II,

III, and IV against the individual defendants.8

(7) . . . When there are no vacate, restraining, or no-contact orders or judgments in

effect, arrest shall be the preferred response whenever an officer witnesses or has

probable cause to believe that a person:

(a) has committed a felony;

(b) has committed a misdemeanor involving abuse as defined in section one

of this chapter;

(c) has committed an assault and battery in violation of section thirteen A

of chapter two hundred and sixty-five.”

Mass. Gen. Laws. ch. 209A, § 6

7 Similarly, nothing in the Court’s ruling today is a determination that the officers made the

“correct” decision. Certainly, there are facts supporting Ms. Calabrese-Kelley’s version of

events, including the fact that the hockey bag Mr. Kelley blocked Ms. Calabrese-Kelley from

putting in his car was in his car when the officers arrived and the fact that both children had

retreated to Ms. Calabrese-Kelley’s car, including one who was originally in Mr. Kelley’s car.

Nonetheless, neither the totality of these surrounding circumstances nor the reasonable

inferences they support precluded a reasonable officer from concluding there was probable cause

that Ms. Calabrese-Kelley struck first.

8 Ms. Calabrese-Kelley asserts in her complaint that her “rights delineated in the Miranda

warnings” were violated by the conduct of the individual defendants, and that this is an

additional basis for her § 1983 and MCRA claims. The undisputed evidence before the court

establishes that Ms. Calabrese-Kelley was presented with paperwork upon her arrival at the

Braintree Police Station, including a Miranda rights notification form in English. Doc. No. 31

¶¶ 66-67. Ms. Calabrese-Kelley admits that she refused to sign this Miranda rights notification

form and alleges that she did so “because she had not been read her Miranda rights.” Id. ¶ 68.

Additionally, Ms. Calabrese-Kelley does not address the failure to read her Miranda rights orally

as a defense to summary judgment at any point in her opposition. Doc. No. 28. Accordingly,

there is no evidence before the Court upon which to conclude that the failure to orally read Ms.

Calabrese-Kelley her Miranda rights is a constitutional violation upon which to base a § 1983 or

MCRA claim.

B. Claims Against the Town and the Police Department

A “local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694

(1978). “Instead, it is when execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under § 1983.” Id. Therefore, in order

for the Town of Braintree or the Braintree Police Department to be liable, Ms. Calabrese-Kelley

would have to establish “first, that [her] harm was caused by a constitutional violation, and

second, that the City be responsible for that violation.” Young v. City of Providence ex rel.

Napolitano, 404 F.3d 4, 25-26 (1st Cir. 2005).

Additionally, MCRA is “coextensive with 42 U.S.C. § 1983, except that the Federal

statute requires State action whereas its State counterpart does not.” Batchelder v. Allied Stores

Corp., 393 Mass. 819, 823 (1985). However, MCRA is limited to cases in which the “derogation

of secured rights occurs by ‘threats, intimidation or coercion.’” Bell v. Mazza, 394 Mass. 176,

182 (1985) (quoting Mass. Gen. Laws ch. 12, § 11H).

In this case, Ms. Calabrese-Kelley’s arrest was supported by probable cause, and thus the

§ 1983 and MCRA claims fail against the Town and the Police Department. Even if her arrest

were not supported by probable cause, however, Ms. Calabrese-Kelley has presented no

evidence upon which this Court could conclude that there was some policy or custom of the

Town of Braintree or the Braintree Police Department which caused the constitutional violation.

Additionally, there is no evidence in the record that any such constitutional violation was

achieved by threats, intimidation, or coercion. Accordingly, the Town of Braintree and the

Braintree Police Department are also entitled to summary judgment on Counts III and IV.

IV. CONCLUSION

The defendants’ motion for summary judgment (Doc. No. 24) is ALLOWED on all

counts.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United States District Judge