Gaetani v. Hadley

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CRAIG GAETANI,

Plaintiff,

v. Civil Action No. 14-30057-MGM

DAVID J. HADLEY,

Defendant.

MEMORANDUM AND ORDER REGARDING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

(Dkt. Nos. 111 & 116)

March 29, 2019

MASTROIANNI, U.S.D.J.

I. INTRODUCTION

Plaintiff Craig Gaetani (“Plaintiff”) alleges Defendant David Hadley (“Defendant” or

“Hadley”), a court security officer, wrongfully and unreasonably removed him from a Berkshire

County courtroom where he sought clarification from a judge. Plaintiff originally asserted nine

claims under state and federal law against Defendant; Susan McMahon (“McMahon”), another court

security officer; the Commonwealth of Massachusetts; and “the Trial Court of the Commonwealth.”

(Dkt. No. 1.) The court partially granted several motions to dismiss (Dkt. Nos. 28 & 53), and

Plaintiff voluntarily dismissed his claims against McMahon (Dkt. No. 109). Hadley is the only

remaining defendant. Plaintiff’s remaining claims against Hadley are (1) a claim under 42 U.S.C.

§ 1983 for a violation of Plaintiff’s Fourth Amendment right to be free from unreasonable seizures

(Count III); (2) a related claim under the Massachusetts Civil Rights Act (“MCRA”), MASS. GEN.

LAWS c. 12, §§ 11H & 11I (Count IV); and (3) a common law assault and battery claim (Count V).

Hadley moved for summary judgment on all claims1 or, in the alternative, asserting he is

entitled to qualified immunity on all claims. (Dkt. No. 111.) Hadley also seeks reconsideration of the

court’s denial of his motion to dismiss Plaintiff’s MCRA claim. The court heard argument on the

summary judgment motion on May 9, 2018. For the reasons below, Hadley’s summary judgment

motion will be granted as to Plaintiff’s MCRA claim and otherwise denied.

Hadley also moved to strike an expert opinion from Plaintiff’s opposition to the summary

judgment motion. (Dkt. No. 116.) After the hearing on the summary judgment motion, the parties

filed a joint statement regarding the motion to strike, in which they agreed that if Defendant

prevailed on his summary judgment motion, the motion to strike would be moot. (Dkt. No. 119.) In

lieu of filing a formal opposition to the motion to strike, Plaintiff raised his objections to that

motion in the joint statement. For the reasons set forth in Section V below, Defendant’s motion to

strike will be allowed in part and denied in part.

II. FACTUAL BACKGROUND

The undisputed facts are few and, in relevant part, are as follows. On June 22, 2011, Plaintiff

appeared at the Pittsfield District Courthouse to attend proceedings in a civil action he initiated in

pursuit of money owed to him. The defendant in that case was incarcerated on unrelated charges

and did not appear. The presiding judge directed Plaintiff to visit the clerk’s office to obtain a writ of

habeas corpus directing the defendant’s attendance at the next proceeding. Shortly after Plaintiff

departed, McMahon, who had been on duty in the courtroom when Plaintiff received the judge’s

1 This is Hadley’s renewed motion for summary judgment. He (and McMahon, when she was still a party to

this case) initially moved for summary judgment in February of 2017. (Dkt. No. 75.) The court subsequently

administratively stayed the case due to Plaintiff’s counsel’s health concerns (Dkt. No. 101) and dismissed the

initial summary judgment motion without prejudice and subject to refiling after the stay was lifted (Dkt. No.

102). The stay was lifted on March 1, 2018 (Dkt. No. 107), Plaintiff voluntarily dismissed McMahon a few

days later (Dkt. No. 109), and Hadley then filed this renewed motion (Dkt. No. 111).

instruction to request a habeas from the clerk’s office, responded to a request for help with a

disturbance at the clerk’s office. Witness accounts differ at this point and are summarized below.

A. Defendant’s and Other Court Officers’ Version of Events

According to McMahon, she hurried to the clerk’s office and found Plaintiff “yelling and

screaming at the woman behind the counter and leaning over the counter.” (McMahon Dep. Tr.

(Dkt. No. 77-1, Ex. 4) at 35:20-22.) Plaintiff was “very irate,” but McMahon “couldn’t even really

get the gist of what the problem was.” (Id. at 26:1-3.) She asked Plaintiff to calm down, but his

behavior continued as clerk’s office personnel tried to reason with him. (Id. at 36:13-37:11.) Despite

her “polite[]” and “calm[]” requests, Plaintiff continued to “yell and scream.” (Id. at 37:9-13.)

Concerned the commotion would disrupt nearby court proceedings, McMahon told Plaintiff he

“need[ed] to leave this office now. You’re disrupting the court.” (Id. at 37:12-23.) “At some point,”

Plaintiff left the clerk’s office but started to scream; he “barged” out the door, declaring he would

“go see the judge myself, right now.” (Id. at 38:1-7.) McMahon followed him down a staircase and

was “concerned” about Plaintiff going into or near the judge’s lobby, but he walked past that set of

doors. (Id. at 38:1-17.) As they neared the courtroom, he was “yelling and screaming, continuing,

‘I’m going to see the judge right now. You’re not going to stop me.’” (Id. at 38:19-39:4.) She “was

right on his heals [sic] behind him, but [she] was not touching him.” (Id. at 39:4-5.) She never told

him he could not go in the courtroom, but when he got to the courtroom door, she exhorted him to

calm down and see the judge after gathering himself. (Id. at 39:11-22.) He ignored her and entered

the courtroom as she continued to trail him. (Id. at 39:23-40:8.) The judge was not on the bench;

McMahon grew concerned Plaintiff would attempt to pass through the partitions and enter

chambers through the back of the courtroom, so she placed herself between Plaintiff and the

intervening passage. (Id. at 39:4-40:10.)

McMahon remembers no one else in the courtroom except court security officer John

Donati (“Donati”). (Id. at 40:9-41:23.) Plaintiff “was still yelling and screaming, ‘I’m going back to

see [the judge] now. Why won’t you let me back there[?]’” (Id. at 42:3-5.) McMahon replied that he

was not allowed to see the judge unexpectedly; she “gestured” her hand against Plaintiff’s upper left

arm and told him he had to calm down and leave. (Id. at 41:23-43:6.) Plaintiff “whipped his arm up”

to deflect McMahon’s “gestur[ing]” arm; in doing so, he brushed it against her face and, but for her

responsive head movement, “he would have made contact, striking [her] face.” (Id. at 43:16-44:5.)

Donati began to cross the courtroom. (Id. at 43:10-15.) He intervened and grabbed Plaintiff’s

arm. (Id. at 44:8-10.) Plaintiff was “still very agitated, very much screaming . . . and was not happy”

(id. at 44:16-19), but he did not attempt to strike McMahon or Donati (id. at 45:15-19). McMahon

and Donati walked Plaintiff toward a “security station” and out of the building; Plaintiff exited the

building into the parking lot where he continued “yelling and screaming.” (Id. at 45:2-46:1, 47:21-

48:10.) McMahon testified Plaintiff did not attempt to turn around and return to the courtroom as

officers escorted him out of the courthouse. (Id. at 47:15-17.) She has no memory of Defendant

being involved with the altercation, although she noticed him observing the situation near the exit of

the building. (Id. at 48:11-49:11.)2

Donati, who apparently was not deposed, provided a sworn affidavit attaching a

contemporaneous incident report he wrote. In the affidavit, Donati attested that he was “the one

who physically escorted Mr. Gaetani from the courthouse.” (Donati Aff. (Dkt. No. 77-1, Ex. 6) at

¶ 4.) The incident report corroborated that claim in brief and general terms. (Donati Aff. (Dkt. No.

2 By Hadley’s account, he heard a commotion while sitting in his office and exited to find McMahaon and

Donati escorting Plaintiff toward the building’s exit. (Hadley Dep. Tr. (Dkt. No. 77-1, Ex. 5) at 37:1-39:24.)

Hadley remembers Donati being on Plaintiff’s left side and McMahon following behind on the right. (Id. at

63:15-20.) Donati was touching Plaintiff, but McMahon was not. (Id. at 63:21-64:2.) At the time, Hadley was

6’5” tall and weighed approximately 260 pounds. (Id. at 17:11-18.)

77-1, Ex. 6-A).) Katherine Wright, a courtroom clerk, echoed this claim in a brief, half-page

affidavit. (Wright Aff. (Dkt. No 77-1, Ex. 7) at ¶¶ 5-7.)

Defendant retained a use of force expert who submitted a report explaining use of force

training for Massachusetts court officers, assessing how a reasonable officer would perceive

Plaintiff’s conduct based on various witnesses’ accounts, and opining on the reasonableness of the

court officers’ responses. (Fitzgerald Rpt. (Dkt. No. 77-1, Ex. 9).) Based on the various witnesses’

accounts, the expert concluded that the court officers’ uses of force were objectively reasonable. (Id.)

B. Plaintiff’s Version of Events

Plaintiff’s deposition testimony paints an entirely different picture. Plaintiff—who was 63

years old, 5’9” tall, and weighed 214 pounds at the time of the incident—asserts that when he

relayed the judge’s order for a writ of habeas corpus to clerk’s office personnel, he was told “the judge

didn’t say that” and Plaintiff instead needed a capias. (Plaintiff Dep. Tr. (Dkt. No . 113-23) at 14:5-

13, 15:21-23; Plaintiff Medical Records (Dkt. No. 113-6) at 2 of 144 and MR00336.) Plaintiff

explained to the clerk’s office staff that he had just come from the “courtroom within the last

minute or so,” and the judge had ordered the issuance of a writ of habeas corpus. (Plaintiff Dep. Tr.

(Dkt. No . 113-2) at 15:1-7.) He “explained to them that they were wrong, that the judge had [him]

come up to get a habeas corpus, not a capias.” (Id. at 16:7-10.) Plaintiff acknowledged he was “a little

bit heated in stating to them” that they were “wrong.” (Id. at 16:16-20, 17:8-14.) His voice “elevated”

slightly above his normal speaking voice when the staff persisted in their error because he was

“emphasizing [the] point” that he had just spoken with the judge who had told him to get a writ of

habeas corpus. (Id. at 17:19-18:16.) He did not recall whether he leaned over the desk, whether court

security officers were present, or whether anyone asked him to “calm down.” (Id. at 18:17-19:11.)

3 Various excerpts of Plaintiff’s deposition testimony are available at Dkt. Nos. 77-1 and 113-2.

4 Page 2 of 14 of Plaintiff’s medical records at Dkt. No. 113-6 does not have a Bates number.

After the clerk’s office persisted in error, Plaintiff said he was going speak with the judge, left

the clerk’s officer, and walked at “normal speed” towards the courtroom. (Id. at 15:11-12, 20:3-21.)

As he opened the courtroom door, “[s]omebody grabbed” him, and a voice from behind him said,

“you’re out of here.” (Id. at 21:3-21:22.) He did not have time to respond before, as Plaintiff

described it, a man “put my arm behind my back . . . with my wrist about waist level, and then he

thrusted upward” “toward my shoulder.” (Id. at 27:1-14, 77:9-22.) Plaintiff believes the man’s “other

hand was on [Plaintiff’s] shoulder.” (Id. at 28:2-3.) Plaintiff identified the man as Hadley. (Id. at

133:15-18.)

Feeling “terrible” pain in his shoulder, Plaintiff declared several times, “I think you just

broke my shoulder.” (Id. at 32:1-34:22.) Plaintiff explained: “I was saying it when they first grabbed

me in the doorway, and it happened almost instantly when he broke my shoulder, I said, you’re

hurting my shoulder, my shoulder is hurting terrible [sic], you’re hurting my shoulder.” (Id. at 34:15-

22.)

While Hadley thrust Plaintiff’s wrist toward his shoulder, a woman took hold of Plaintiff’s

left side. (Id. at 28:10-13.) She had both of her “hands on [Plaintiff’s] arm and [his] shoulder on the

other side.” (Id. at 28:16-21.) Hadley and the woman “were trying to lead [Plaintiff] out of the

courtroom.” (Id. at 28:21-22.) Plaintiff identified the woman as McMahon. (Id. at 133:19:21.)

Officers escorted Plaintiff out of the courthouse in a period of two to four minutes,

“grasp[ing]” him and walking him to the exit. (Id. at 32:1-34:22.) Plaintiff struggled to some extent

but did not try to escape the officers’ clutches. (Id. 33:21-43-14 (“I wasn’t trying to resist them. I was

in their grasps. But I was making it clear that my shoulder was hurting.”).) He testified he did not

resist Hadley, but when McMahon grabbed his left harm, he believed his right arm had been broken,

and he was trying to protect himself and not have his left arm pulled behind his back. (Id. at 141:9-

142:10.) Plaintiff further described his encounter with McMahon: “She’s a court officer taking me

out of the courtroom. I know her job and I tried to comply the best I could. However, I wasn’t

about to get my left shoulder broken either. So I tried to keep my [left] arm from going behind my

back the best I could.” (Id. at 142:14-22.) He testified he did not swing at McMahon or hit any of the

court officers. (Id. at 33:24-34:1, 142:11-12.) McMahon corroborated this testimony. (McMahon

Dep. Tr. (Dkt. No. 77-1, Ex. 4) at 45:15-19.)

After officers pulled Plaintiff out of the courtroom, he first stepped backwards but then

turned around to face forward and walk toward the exit. (Plaintiff Dep. Tr. (Dkt. No . 113-2) at

34:23-35:18.) He testified his feet were not dragged on the ground but then testified he does not

recall his feet being dragged on the ground. (Id. at 35:11-12, 19-21.) Outside the courthouse, Plaintiff

saw John Bernardo, a local attorney, and told Bernardo he thought the officers had broken his

shoulder. (Id. at 40:1-22.)

Bernardo’s deposition testimony corroborates Plaintiff’s version of events in several key

respects but differs from Plaintiff’s in others. Bernardo testified he was in the courtroom when

Plaintiff entered and said (to whom is unclear): “‘I need to see the judge. The girls upstairs said they

don’t know anything, they can’t do something, I need to see the judge.’” (Bernardo Dep. Tr. (Dkt.

No. 77-1, Ex. 105) at 10:2-14.) Someone or some group of people told Plaintiff he could not see the

judge. (Id. at 10:15-16.) Plaintiff said aloud in the courtroom that the judge told him to go to the

clerk’s office, but the clerk’s office staff could not help him, and, as a result, he needed to see the

judge. (Id. at 10:17-24.) He was told again to leave, and someone—Bernardo believes it was a clerk

named Dave Kearns—said, “‘Get him out of here.’” (Id. at 11:1-7.) Before this point, court officers

were not around Plaintiff, but the officers in the courtroom then surrounded him, and other officers

came down from upstairs into the courtroom. (Id. at 11:7-14.) Plaintiff looked at Bernardo and

5 Various excerpts of Bernardo’s deposition testimony are available at Dkt. Nos. 77-1 and 113-3.

asked, “‘Hey, John, can they throw me out like this?’” (Id. at 11:15-17.) Then the courtroom door

opened, and “in stepped the biggest court officer there, Dave Hadley,” who “grabbed [Plaintiff] by

the arm.” (Id. at 11:18-20.) Hadley had come in “rapidly” and “grabbed [Plaintiff’s] arm forcefully

and yanked him, pulled him out that door.” (Id. at 11:18-24.) Bernardo continued:

[When Hadley entered the courtroom, the other court officers] had

Mr. Gaetani surrounded. One court officer had him by one hand,

another one had him by the other hand. Then it swapped, as to one of

the officers. And Dave Hadley, like I said, come in the room, came

charging in the door, and just grabbed his arm and yanked him right

out. [Plaintiff’s] arm was straight out [90 degrees to his body, parallel

to the floor,] and [Hadley] yanked him right out.

. . .

I mean, there was no delay. [Hadley] come charging in the room,

grabbed [Plaintiff’s] arm and just yanked him right out. And the other

officers were all around Mr. Gaetani in the rear and to the side.

(Id. at 13:18-14:6, 14:24-15:4.) Hadley had two hands on Plaintiff’s right arm “just like you grab a

baseball bat.” (Id. at 14:9-10.) Out of concern for Plaintiff’s safety, Bernardo followed the group

outside and advised Plaintiff to leave the property.6 (Bernardo Dep. Tr. (Dkt. No. 113-3) at 19:2-

21:13.) Plaintiff complained to Bernardo, “‘My shoulder, . . . I think they dislocated it.’” (Id. at 19:20-

21; see also Plaintiff Dep. Tr. (Dkt. No. 113-2 (40:19-22) (“I was telling Mr. Bernardo that I thought

they broke my shoulder.”).)

C. Plaintiff’s Shoulder Injury

Plaintiff’s medical records show he went to a doctor about his shoulder several times in the

days and weeks following the incident. (Plaintiff Medical Records (Dkt. No. 113-6) at MR00336-37,

MR00339-42.) The doctor sent him to an orthopedic surgeon, Dr. Herb Bote. (Plaintiff Dep. Tr.

6 With respect to his concerns about Plaintiff’s safety, Bernardo testified: “In the past, I’ve watched [court

officers] take somebody outside and kick them. I’m not a Don Quixote. But I don’t want to see somebody

get roughed up unfairly. And I wanted to make sure that didn’t happen to him.” (Bernardo Dep. Tr. (Dkt.

No. 113-3) at 21:9-13.)

(Dkt. No. 113-2) at 50:7-16.) Dr. Bote informed Plaintiff he “had some torn tissues in [his]

shoulder.” (Plaintiff Dep. Tr. (Dkt. No. 113-2) at 50:20-24; see also Plaintiff Medical Records (Dkt.

No. 113-6) at MR00344 (“ASSESSMENT: 840.4 Right Rotator cuff tear (Severe; Worsening)”).)

Plaintiff subsequently underwent surgery, which “failed” and “had to be corrected.” (Plaintiff Dep.

Tr. (Dkt. No. 113-2) at 51:1-19.)

Plaintiff also sought medical attention for pain in his right shoulder roughly two weeks before

the incident at the courthouse. On June 8, 2011, he saw his doctor for “recurrent pain in his right

shoulder” that had been “progressively more painful over the last three to four days, although in

duration it ha[d] been uncomfortable for probably two weeks.” (Plaintiff Medical Records (Dkt. No.

115-2) at GMED053). The doctor injected “[a] local anesthetic [that] provided prompt relief.” (Id.)

According to Plaintiff’s statement of facts, “Plaintiff did have surgery on his shoulder three

months after the June 22 incident, but has offered no admissible evidence that surgery or any of

Plaintiff’s alleged increased shoulder pain were the result of the events on June 22, 2011.” (Plaintiff’s

SOF (Dkt. No. 113-9) at ¶ 31.)

III. SUMMARY JUDGMENT STANDARD

“Summary judgment is appropriate ‘if 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.’” Bellone v. Southwick-

Tolland Reg’l Sch. Dist., 748 F.3d 418, 422 (1st Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). “[A]

nonmovant can forestall summary judgment by ‘present[ing] definite, competent evidence’

demonstrating the existence of a genuine dispute about a material fact.” Murray v. Kindred Nursing

Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991)). “‘A dispute is genuine if the evidence about the fact is such that a reasonable jury

could resolve the point in the favor of the non-moving party.’ . . . ‘A fact is material if it has the

potential of determining the outcome of the litigation.’” Patco Constr. Co. v. People’s United Bank, 684

F.3d 197, 206-07 (1st Cir. 2012) (quoting Rodríguez-Rivera v. Federico Trilla Reg’l Hosp. of Carolina, 532

F.3d 28, 30 (1st Cir. 2008)). The court must view the facts and draw inferences from those facts in

the light most favorable to the non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587-88 (1986) (citation omitted). “In a case in which the parties offer diametrically

opposite versions of the facts, each founded on first-hand knowledge, we must ask whether the

account propounded by the nonmovant suffices to thwart the swing of the summary judgment ax.”

Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). However, “[t]he role of the trial judge at the

summary judgment stage ‘is not . . . to weigh the evidence and determine the truth of the matter, but

to determine whether there is a genuine issue for trial.’” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,

167 (1st Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Similarly, “the

court should not engage in credibility assessments.” Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d

424, 432 (1st Cir. 2000).

IV. DISCUSSION

Defendant raises two arguments in his summary judgment motion. First, because of

Donati’s contemporaneous incident report in which he admits he seized Plaintiff, no reasonable jury

could find in Plaintiff’s favor. (See Section IV.A below.) Second, in the alternative, Defendant is

entitled to qualified immunity. Defendant’s motion requires the court to strike a difficult balance

between summary judgment standards and the doctrine of qualified immunity. (See Section IV.B

below.)

A. Summary Judgment Analysis

Defendant’s primary argument is that he is entitled to summary judgment on all counts

because Donati admitted he—not Hadley—seized Plaintiff. Defendant urges the court to adopt his

and Donati’s versions of the facts and disregard Plaintiff’s and Bernardo’s because there are

discrepancies between Plaintiff’s testimony and Bernardo’s. According to Defendant, no rational

fact finder could conclude that he seized Plaintiff, and Plaintiff’s version of the facts “requires him

to prove a vast conspiracy by numerous people to cover up for Hadley, but [Plaintiff] has not alleged

that such a conspiracy exists, much less any facts to support the claim.”7 (Defendant’s Br. (Dkt. No.

112) at 9.) Plaintiff, on the other hand, counters that his testimony and Bernardo’s are consistent on

the key fact that Hadley grabbed Plaintiff.8 More importantly, the witnesses’ accounts present factual

issues that turn on credibility determinations. For example, the questions of “[w]hether Hadley was

the officer who caused [Plaintiff’s] rotator cuff tear” and “why another officer may wish to

7 Defendant’s argument that no reasonable juror could conclude that Hadley (rather than Donati) seized

Plaintiff relies on cases too far afield. (Defendant’s Br. (Dkt. No. 112) at 8-11). For example, in Scott v. Harris,

550 U.S. 372 (2007), the Supreme Court rejected the plaintiff’s account at summary judgment of a high-speed

chase because its depiction of a mild and generally safe pursuit was “blatantly contradicted” by video footage.

The Court explained: “When opposing parties tell two different stories, one of which is blatantly contradicted

by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Id. at 380. Here, much to the contrary, there is

no video footage or other evidence that clearly undermines Plaintiff’s version of events. Rather, Bernardo’s

third-party account corroborates Plaintiff’s testimony as to the identity of the alleged assailant and

supplements it as to details regarding use of force.

Robinson v. Prince George’s Cty., Md., 465 F. App’x 238 (4th Cir. 2012) (per curiam) too is distinguishable. There,

the Fourth Circuit affirmed summary judgment in the defendants’ favor because the plaintiffs’ “conjecture”

that a certain officer fired a fatal shot was “without any shred of evidentiary support” where the officer’s

“service weapon was examined on the scene and it was determined that it had not been fired recently.” Id. at

240. Here, though, the only evidence of what happened in the courtroom and who touched Plaintiff is

various eyewitnesses’ competing accounts, which the court cannot weigh on summary judgment.

8 In his reply brief, Defendant argues that discrepancies between Plaintiff’s and Bernado’s accounts

impermissibly “muddle[] the specific facts” at issue, and Defendant contends Plaintiff “‘manufacture[d] a

dispute of fact by contradicting his earlier sworn testimony without a satisfactory explanation of why the

testimony [was] changed.’” (Defendant’s Reply Br. (Dkt. No. 114) at 4 (quoting Abreu-Guzmán v. Ford, 241

F.3d 69, 74 (1st Cir. 2001)).) The court is not persuaded. Discrepancies between Plaintiff’s and Bernardo’s

accounts ultimately go to the weight, not admissibility, of their testimony. A reasonable juror could fairly

conclude that Plaintiff’s testimony is credible even if his memory as to certain details was inaccurate or

distorted given his “heated” emotional state. Such an inference is all the stronger considering Plaintiff

testified he did not remember certain aspects of his encounter, including whether he was leaning over the

clerk’s office counter, whether he was asked to calm down, or whether anyone followed him out of the clerk’s

office. (Plaintiff Dep. Tr. (Dkt. No . 77-1, Ex. 3) at 18:22-23 (does not recall leaning over counter), 19:6-11

(does not recall being asked to calm down), 20:7-15 (does not recall anyone following him).)

Abreu-Guzmán, moreover, is inapposite. There, the court considered and rejected the plaintiff’s efforts to

contradict his own earlier sworn testimony with an affidavit. 241 F.3d at 74 (“[T]here is no evidence to

support Abreu’s allegation other than Abreu’s 1999 affidavit,” which “is inconsistent with Abreu’s earlier

sworn statement.”). That is not the situation here, where a third-party witness contradicts Plaintiff’s testimony

only on minor details, and Plaintiff’s recollection of some details is admittedly hazy.

incriminate himself in order to exonerate his superior (Hadley) should” be left to the jury. (Plaintiff’s

Opp. (Dkt. No. 113) at 7; see also id. at 5 (“Hadley is Donati’s superior and a reasonable jury could

believe Donati was protecting his superior when writing his report and would disregard his

testimony.”).)9

This case is rife with disputes of material fact that will depend the jury’s assessment of

witnesses’ credibility. The parties dispute the key issue in this case: did Defendant (or someone else)

seize Plaintiff? The parties also dispute whether Defendant’s use of force (assuming it was

Defendant who used force) was reasonable. See Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th

Cir. 2010) (summary judgment not warranted in light of “conflicting evidence about just how much

force” officer used, which “bears directly on whether that force was a reasonable response to the

situation”). Defendant highlights discrepancies between Plaintiff’s testimony and Bernardo’s—e.g.,

whether Plaintiff was all the way in the courtroom when he was seized and the number of court

officers present and/or involved—but these differences are minor and do not render either

witness’s testimony implausible or inadmissible. (See footnote 8, supra.) Defendant can exploit

discrepancies between Plaintiff’s and Bernardo’s testimony on cross-examination at trial, but the

court cannot resolve factual disputes or weigh credibility at the summary judgment stage. As a

result—subject to a determination of whether Defendant is entitled to qualified immunity, which is

discussed below—Defendant is not entitled to summary judgment on any claim.

B. Qualified Immunity

“Qualified immunity is a judicial gloss designed to allow public officials to perform

discretionary tasks without the constant threat of legal liability.” Morelli, 552 F.3d at 18. “A

9 Defendant contends Plaintiff’s argument that Donati would take the fall for his boss is an “unsupported

conspiracy theory.” (Defendant’s Reply (Dkt. No. 114) at 8.) These are issues of witness credibility, and, on

cross-examination, Plaintiff may explore questions along these lines for impeachment purposes.

government official sued under § 1983 is entitled to qualified immunity unless the official violated a

statutory or constitutional right that was clearly established at the time of the challenged conduct.”

Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (per curiam). “The doctrine’s prophylactic sweep is

broad: it leaves unprotected only those officials who, ‘from an objective standpoint, should have

known that their conduct was unlawful.’” Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017) (quoting

MacDonald v. Town of Eastham, 745 F.3d 8, 11 (1st Cir. 2014)). In other words, “[t]his doctrine ‘gives

government officials breathing room to make reasonable but mistaken judgments,’ and ‘protects all

but the plainly incompetent or those who knowingly violate the law.’” Carroll, 135 S. Ct. at 350

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).

There is “a two-prong analysis to determine whether an officer is protected by qualified

immunity.” Mitchell v. Miller, 790 F.3d 73, 77 (1st Cr. 2015) (internal quotation marks and citation

omitted). First, has the plaintiff established a violation of a constitutional right, and second, if so,

was “the law clearly established at the time of the defendant’s alleged violation”? Id. (internal

quotation marks and citation omitted). The two prongs “need not be considered in any particular

order, and both prongs must be satisfied for a plaintiff to overcome a qualified immunity defense.”

Raiche v. Pietroski, 623 F.3d 30, 36 (1st Cir. 2010).

The second prong has two sub-parts: the first “requires the plaintiff to identify either

‘controlling authority’ or a ‘consensus of cases of persuasive authority’ sufficient to send a clear

signal to a reasonable official that certain conduct falls short of the constitutional norm.” Alfano, 847

F.3d at 75 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). This “analysis ‘must be undertaken in

light of the specific context of the case, not as a broad general proposition.’” Id. at 76 (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)); see also City of Escondido, Cal. v. Emmons, 139

S. Ct. 500, 503 (2019) (per curiam) (“the clearly established right must be defined with specificity”

and not “at a high level of generality”) (internal quotation marks and citation omitted). “The plaintiff

bears the burden of demonstrating that the law was clearly established at the time of the alleged

violation, and it is a heavy burden indeed.” Mitchell, 790 F.3d at 77. Even so, there need not be

existing case law addressing the precise factual situation an officer encounters; instead, “officials can

still be on notice that their conduct violates established law even in novel factual circumstances.”

Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also Alfano, 847 F.3d at 76 (“[I]t is enough if the existing

precedents establish the applicable legal rule with sufficient clarity and specificity to put the official

on notice that his contemplated course of conduct will violate that rule.”); Kisela v. Hughes, 138 S. Ct.

1148, 1153 (2018) (per curiam) (“Use of excessive force is an area of the law in which the result

depends very much on the facts of each case, and thus police officers are entitled to qualified

immunity unless existing precedent squarely governs the specific facts at issue. Precedent involving

similar facts can help move a case beyond the otherwise hazy border between excessive and

acceptable force and thereby provide an officer notice that a specific use of force is unlawful.”)

(internal quotation marks and citations omitted).

The second sub-part of the second prong

asks whether an objectively reasonable official in the defendant’s

position would have known that his conduct violated that rule of law.

The question is not whether the official actually abridged the plaintiff’s

constitutional rights but, rather, whether the official’s conduct was

unreasonable, given the state of the law when he acted.

Alfano, 847 F.3d at 75 (internal citations omitted); see also City & Cnty. of San Francisco, Cal. v. Sheehan,

135 S. Ct. 1765, 1774 (2015) (“An officer cannot be said to have violated a clearly established right

unless the right’s contours were sufficiently definite that any reasonable official in [his] shoes would

have understood that he was violating it, meaning that existing precedent . . . placed the statutory or

constitutional question beyond debate.”) (internal quotation marks and citations omitted). “The

dispositive question is ‘whether the violative nature of particular conduct is clearly established.’”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis omitted) (quoting al-Kidd, 563 U.S. at 742).

“The doctrinal intersection of qualified immunity principles and summary judgment

principles is not well mapped. Plotting that intersection can present thorny analytic problems—

problems that are magnified because of the desire to resolve claims of qualified immunity at the

earliest practicable stage of litigation.” Morelli, 552 F.3d at 18. Summary judgment standards require

the court to “take the evidence and all reasonable inferences therefrom in the light most favorable to

the plaintiff” and demand “absolute deference to the nonmovant’s factual assertions,” whereas

qualified immunity, when raised on summary judgment, demands deference to the reasonable, if

mistaken, actions of the movant-defendant. Morelli, 552 F.3d at 18-19, 21 (internal citations omitted).

“In order to ease this inherent tension,” the First Circuit advises “cabin[ing] these standards and

keep[ing] them logically distinct, first identifying the version of events that best comports with the

summary judgment standard and then asking whether, given that set of facts, a reasonable officer

should have known that his actions were unlawful.” Id. at 19; see also Scott v. Harris, 550 U.S. 372, 378

(2007) (“When things are in such a posture [(i.e., assessing qualified immunity at the summary

judgment stage)], courts are required to view the facts and draw reasonable inferences in the light

most favorable to the party opposing the [summary judgment] motion. In qualified immunity cases,

this usually means adopting (as the Court of Appeals did here) the plaintiff’s version of the facts.”)

(internal quotation marks and citations omitted).

Applying that framework, the court will first identify the version of events that best

comports with the summary judgment standard and then move to the qualified immunity analysis.

i. The Version of Events that Best Comports with the Summary

Judgment Standard

When the summary judgment standard is carefully applied, with all material disputes and

ambiguities resolved in Plaintiff’s favor, the following factual theory results. Plaintiff visited the

clerk’s office and grew frustrated, elevated his voice to a minor degree and was a “little bit heated”

due to mistakes and assertions made by that office. Plaintiff left the clerk’s office to go to the

courtroom to speak with the judge to confirm he needed a writ of habeas corpus. Once there, Plaintiff

was advised he could not see the judge. Plaintiff repeated his desire to see the judge, causing a

courtroom clerk to urge the officers to “get him out of [t]here.” Plaintiff turned to Bernardo and

asked if he had a right to remain in the courtroom. At or around that point, Defendant—who was 8

inches taller and approximately 45 pounds heavier than Plaintiff—approached Plaintiff from behind,

placed both of his hands on Plaintiff’s arm, and forcibly yanked him by the arm towards the door.

Defendant grabbed Plaintiff’s arm as though, as Bernardo described, Defendant were holding a

baseball bat. Plaintiff felt immediate, sharp pains, cried out, and repeatedly said he thought his

shoulder was broken as officers escorted him outside. Plaintiff did not resist being removed from

the courtroom or escorted out of the courthouse, and he did not try to re-enter the courtroom. He

did not hit any court officer or swing at McMahon. Plaintiff was later diagnosed with a torn rotator

cuff and underwent a mostly unsuccessful surgery. He admitted he has not produced evidence

establishing that his increased shoulder pain or need for surgery resulted from the incident at the

courthouse.

ii. Qualified Immunity Prong One: Whether Defendant Violated

Plaintiff’s Clearly Established Right to Be Free from Unreasonable

Force

The first prong of the qualified immunity analysis asks whether Defendant violated one of

Plaintiff’s clearly established rights. Plaintiff’s “burden of demonstrating that the law was clearly

established at the time of the alleged violation” is a “heavy” one. Mitchell, 790 F.3d at 77. The right at

issue here is the right to be free from unreasonable force, which stems from the right to be free

from unreasonable seizures under the Fourth Amendment. See Raiche, 623 F.3d at 36. The use of

force during a “‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). The court analyzes excessive

force claims “according to the constitutional touchstone of objective reasonableness” and disregards

an “officer’s subjective ‘intent or motivation.’” Raiche, 623 F.3d at 36 (quoting Graham, 490 U.S. at

397).

The issue is whether “the defendant officer employed force that was unreasonable under the

circumstances.” Id. at 36 (internal quotation marks and citation omitted). This requires balancing

“the individual’s interest against the government’s, weighing three non-exclusive factors: (1) the

severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the

officers or others, and (3) whether [the suspect] is actively resisting arrest or attempting to evade

arrest by flight.” Id. (internal quotation marks omitted) (quoting Graham, 490 U.S. at 396). These

three factors from Graham v. Connor must be “viewed in the context of ‘the totality of the

circumstances.’” Alexis v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341, 353 (1st Cir. 1995) (quoting

Graham, 490 U.S. at 396); see also Jarrett v. Town of Yarmouth, 331 F.3d 140, 148 (1st Cir. 2003) (“Courts

conducting this balancing exercise must undertake a fact-intensive inquiry that is highly sensitive to

the circumstances of the particular case.”). “The ‘reasonableness’ of a particular use of force must be

judged 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. “Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. (internal

quotation marks and citation omitted).

None of the Graham factors weighs in Defendant’s favor. As to the first—the severity of the

crime at issue—Plaintiff was not arrested for or accused of committing a crime.10 Looking at his

10 Defendant presents a conclusory argument that there was probable cause to arrest Plaintiff under MASS.

GEN. LAWS c. 272, § 53(b) (disorderly conduct) or MASS. GEN. LAWS c. 268, § 13C (disruption of court

proceedings). (Def.’s Mem. (Dkt. No. 112) at 19-20.) No court proceedings were going on when Plaintiff re-

entered the courtroom, but his conduct may have constituted disorderly conduct. Regardless, assuming there

was probable cause to arrest Plaintiff for violating either statute, both are misdemeanors. A first disorderly

conduct violation is punishable by a fine of up to $150; subsequent offenses are punishable by a fine of up to

$200, imprisonment for up to six months, or both. See MASS. GEN. LAWS c. 272, § 53(b). Disrupting court

proceedings is punishable by a fine of up to $1,000, imprisonment for up to a year, or both. See MASS. GEN.

LAWS c. 268, § 13C. As other courts have found, misdemeanors are low in severity, meaning only lesser

conduct in the light most favorable to him, he was a “little bit heated” in the clerk’s office, he was

entering or entered the courtroom to ask the judge a clarifying question, and he asked Bernardo

whether court officers could remove him from the courtroom. “[A] rational jury could find that the

force used by [Defendant] to detain” someone “who, at worst,” was loud but non-violent and not

resisting “was so disproportionate as to offend the Fourth Amendment.” Morelli, 552 F.3d at 23; see

also Alexis, 67 F.3d at 353 (collecting cases with trialworthy excessive force claims where plaintiffs’

alleged crimes were minor in nature).

Turning to the second factor, there is no indication Plaintiff posed an immediate threat to

anyone’s safety. Again, based on the facts most favorable to Plaintiff, he was heated in the clerk’s

degrees of force might be reasonable. See Brown v. City of N.Y., 798 F.3d 94, 102 (2d Cir. 2015) (“[T]he severity

of the crime is unquestionably slight. The disorderly conduct offense is subject to a maximum penalty of

fifteen days in jail, and the underlying facts, even as alleged by the officers, are loud banging on the door of a

closed store by someone wanting to use a bathroom, plus the use of loud and nasty language.”); Fogarty v.

Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (plaintiff allegedly engaged in disorderly conduct, which is

classified as among the least severe crimes under New Mexico law, meaning “the amount of force used

should have been reduced accordingly”); Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1116 (9th Cir. 2017)

(plaintiff suspected of battery after officer received report of someone throwing water balloons at four people

and then saw plaintiff carrying water balloons; “the jury could conclude, based on the fact that [plaintiff] was

suspected of committing only a misdemeanor, that [officer’s] leg sweep maneuver was excessive under the

circumstances”) (internal citation omitted); Singleton v. Darby, 609 F. App’x 190, 202 (5th Cir. 2015) (plaintiff’s

alleged crime was Class B misdemeanor under Texas law punishable by up to 180 days imprisonment, a fine

of up to $2,000, or both; “Although the alleged commission of a minor or misdemeanor offense is not to be

taken lightly, we repeatedly have recognized that it militates against concluding that the use of significant

force was objectively reasonable.”); Yates v. Terry, 817 F.3d 877, 885 (4th Cir. 2016) (“[plaintiff’s] alleged

violations are nonviolent, minor traffic infractions,” and the basis for detaining plaintiff (driving without a

license) was “only a misdemeanor”; “When the offense committed is a minor one, we have found that the

first Graham factor weigh[s] in plaintiff’s favor.”) (internal quotation marks and citation omitted); Gomez v. City

of Norwalk, No. 3:15CV1434 (MPS), 2018 WL 780213, at *4 (D. Ct. Feb. 8, 2018) (plaintiff pled guilty to

breach of the peace, a Class B misdemeanor under Connecticut law punishable by up to six months

imprisonment; “The ‘severity of the crime at issue’ factor presents a thin reed for the defendants given that

neither the facts underlying [plaintiff’s] conviction—i.e., that [he] was drunk and belligerent—nor the crime

of which he was convicted were severe in nature.”) (citation omitted); cf. E.W. by & through T.W. v. Dolgos, 884

F.3d 172, 180 (4th Cir. 2018) (“At the time Dolgos handcuffed E.W., Dolgos knew that E.W. had at most

committed misdemeanor assault in the second degree [(punishable by up to 10 years imprisonment, a fine of

up to $2,500, or both)] by hitting another little girl for stepping on her foot. But because assault is an offense

that can be considered violent if committed by any person, even a child, we find that this factor weighs

against E.W. This finding is tempered, though, by the fact that the offense is a misdemeanor.”) (internal

citation omitted).

office, went to the courtroom to speak with the judge, and never hit any court officer or swung at

McMahon. Even portions of McMahon’s testimony demonstrate he was not an immediate threat.

She testified she had been concerned that immediately after Plaintiff left the clerk’s office, he would

“barge” into the back entrance to the judge’s lobby. (McMahon Depo. Tr. (Dkt. No. 75-3, Ex. 4) at

38:9-15.) But he did not try to enter the judge’s lobby. (Id. at 38:16-17.) He passed that set of doors,

continued to the courtroom, passed the first entrance to the courtroom, and went to the second

courtroom entrance. (Id. at 38:19-20, 39:13-18.) McMahon was “surprised” he did not use the first

entrance because that was “the quickest way” into the courtroom. (Id. at 39:15-18.)

Third, there is no evidence Plaintiff resisted arrest or attempted to flee. Plaintiff testified he

was concerned about his left arm being grabbed the way his right arm had been, but he did not resist

being removed from the courtroom, and walked with the court officers out of the courthouse.

Defendant cited several cases in which officers were found to have used reasonable force.

All are factually distinguishable, even Watson v. Perez, 168 F. Supp. 3d 365 (D. Mass. 2016), which is

the most similar to this case. In that case, Watson complied with a court officer’s order to leave a

courtroom, but court officers began beating him in an anteroom between the courtroom and the

public hallway. Id. at 368. Watson’s pregnant wife, Espino, begged the officers to stop; they ignored

her, so she began videotaping the beating with her cell phone. Id. A court officer told Espino to

leave the area, but she did not want to because she was concerned about her husband. Id. at 369.

The officer “grabbed Espino’s arm, causing her pain, and forced her out of the area” to “a bench

next to the courtroom.” Id. The court dismissed the excessive force claim against the officer who

grabbed Espino, finding the level of contact was not excessive under the circumstances: the officer

“first told Espino to leave the area and then used a grip on her arm to escort her to a bench. This

force was minimal, did not result in injury, and was necessary to effectuate the removal of Espino

from the immediate area.” Id. at 371. The facts of Watson, as they relate to an officer grabbing

someone’s arm, are somewhat similar to the facts of the present case. However, as Defendant

concedes, the officer in Watson was alleged to have used less force than Defendant. And, as the

Watson court explained, the force was necessary to remove Espino from the area where there was a

violent, physical confrontation involving her husband. Id. The circumstances in the present case are

materially different: there was no violent confrontation, and Defendant allegedly used enough force

that Plaintiff immediately and repeatedly said he thought his shoulder was broken.

In Bettis v. Bean, No. 5:14-CV-113, 2015 WL 5725625 (D. Vt. Sept. 29, 2015), officers

responded to a 911 call for a domestic disturbance. Id. at *1-2. When they arrived, they could hear

screaming inside the house. Id. at *2. In the house, officers found the decedent—who, unbeknownst

to them, suffered from several illnesses and injuries—holding and squeezing his wife’s wrists as she

was crying. Id. at *1, *3. He did not comply with the officers’ orders to let go, so they pried his

hands from his wife’s wrists. Id. at *3. One officer subsequently performed a rear wrist lock on the

decedent to handcuff him. Id. The decedent pulled away, the officer heard a snap, the decedent’s

arm went limp, and he repeatedly said his arm was broken. Id. He underwent two surgeries and later

passed away due to an infection. Id. at *5. The court found the officer’s use of force was reasonable

because the decedent ignored verbal commands to release his wife, and, after officers pried his

“hands from his wife’s wrists, he remained noncompliant, agitated, and difficult to subdue.” Id. at

*11. He “was a large man who appeared strong and capable of inflicting injury,” and there were no

“indicia that he was suffering from any kind of pre-existing injury. He was swearing, repeatedly

stating that he was not taking any more abuse, and he appeared both angry and upset.” Id. at *12.

The severity of the crime, the threat to officers’ and others’ safety, and the level of the person’s

resistance in Bettis are all significantly greater than in the present case, where they are nil.

In Calvi v. Knox Cnty., 470 F.3d 422 (1st Cir. 2006), police responded to a 911 call from a

man about a woman brandishing a knife in his house. Id. at 425. Roughly when officers arrived, a

second man, who lived at the house but had fled, called 911 asking if it was safe to go back. Id. The

second man returned and played an audio recording for police of the woman yelling when she

grabbed a butcher knife in the house, ignoring people’s pleas to be reasonable. Id. Police located the

woman in the house, handcuffed her, put her in a cruiser, and transported her to lockup. Id. The

court found the handcuffing did not involve excessive force: “Standard police practice called for

cuffing an arrestee’s hands behind her back and Smith’s decision not to deviate from this practice

was a judgment call, pure and simple. He handcuffed Calvi in the customary manner and kept her in

handcuffs for no more than the time reasonably necessary to transport her to the lockup.” Id. at 428.

The facts of Calvi are not at all similar to the facts here and do not support the conclusion that

Defendant’s conduct was reasonable.

The plaintiff in Andrews v. Fuoss, 417 F.3d 813 (8th Cir. 2005), approached her son in a

courtroom while waiting for his sentencing for a “spree” of violent crimes, including assault and

battery. Id. at 815. The sheriff, acting as courtroom bailiff, had previously told the plaintiff and her

son that she could not have physical contact with him; the sheriff also had created a rule—of which

the plaintiff was unaware—that no one except her son’s lawyer could be within 10 feet of her son.

Id. As she approached her son, the sheriff allegedly dealt a “forceful blow” to her shoulder. Id. The

court found that stopping her and the sheriff’s use of force were reasonable due to her son’s violent

history, the need to maintain order and security in the courtroom, and the plaintiff’s injuries being

“no more than de minimis.” Id. at 817-18 (quoting Eighth Circuit cases holding that “‘a de minimis

use of force or injury is insufficient to support a finding of a constitutional violation’”) (citation

omitted). While the court officers in this case certainly had a legitimate interest in ensuring

courtroom security, Plaintiff was not attempting to interact with someone with a history of violence

about which the court officers were concerned. Moreover, as the First Circuit has held, “liability may

be imposed for the use of excessive force even in the absence of a serious injury.” Bastien v. Goddard,

279 F.3d 10, 14 (1st Cir. 2002) (“Although the severity of the injury also may be considered, we have

stated explicitly that a ‘serious injury’ is not a prerequisite to recovery.”) (internal citation omitted).

The plaintiff in Preast v. McGill, 65 F. Supp. 2d 395 (S.D. W. Va. 1999) had an altercation

with court officers, but the duration and severity of his conduct were much more serious than

Plaintiff’s here. In Preast, the plaintiff—a vexatious pro se litigant who had been barred from filing

cases in West Virginia’s federal and state courts—was physically removed from the courthouse after

becoming upset during a hearing. Id. at 398-99, 399 n.4. News cameras then captured video footage

of the plaintiff angrily and “furiously gesturing” at court officers at the courthouse entrance,

taunting them to come outside, re-entering the courthouse and then attempting to flee, and resisting

arrest. Id. at 400-01.

Finally, in Peña-Borrero v. Estremeda, 365 F.3d 7 (1st Cir. 2004), the plaintiff was handcuffed

when he was arrested at his home pursuant to a warrant, which exacerbated pre-existing, non-

obvious injuries. Id. at 10, 12. The First Circuit found the plaintiff had failed to state a plausible

excessive force claim where he merely alleged that officers “‘pushed both of [his] arms up behind his

back up to almost his neck, whereby plaintiff told them that they were hurting him. Plaintiff was

injured while being handcuffed in front of his two children.’” Id. at 12. In contrast to Peña-Borrero,

this case does not involve the sufficiency of allegations regarding police use of force while

handcuffing an arrestee pursuant to a warrant.

In sum, none of Defendant’s arguments is persuasive.

iii. Qualified Immunity Prong Two

a. Sub-Part One: Whether Controlling and Persuasive Authorities

Send a Clear Signal Regarding the Reasonableness of

Defendant’s Use of Force

There is “‘controlling authority’ or a ‘consensus of cases of persuasive authority’ sufficient to

send a clear signal to a reasonable official that certain conduct falls short of the constitutional

norm.” Alfano, 847 F.3d at 75 (quoting Wilson, 526 U.S. at 617). It is a longstanding principle of

Fourth Amendment jurisprudence that the reasonableness of an officer’s use of force is assessed

based on the circumstances and the three factors from Graham. First Circuit

case law supplies a crystal clear articulation of the right, grounded in

the Fourth Amendment, to be free from the use of excessive force by

an arresting officer. See, e.g., Alexis, 67 F.3d at 353-54 (concluding

excessive force claim triable when officer seized and dragged plaintiff

to effectuate arrest for crime of trespassing in a public restaurant).

Given this well-settled jurisprudence, there is no legitimate doubt that

the right asserted here was clearly established. Thus, [the officer] was

on notice that a police officer’s use of excessive force would be

offensive to the Constitution.

Morelli, 552 F.3d at 23-24. Moreover, cases decided before the events at issue demonstrate

circumstances where pulling someone’s arm like Defendant did constituted unreasonable force. See,

e.g., Alexis, 67 F.3d at 346, 353 (officer “suddenly and violently grabbed [woman] and pulled her

from the booth and across the table” for allegedly trespassing at a restaurant); Counter v. Healy, No.

09-12144-RGS, 2010 WL 2802179, at *5 (D. Mass. June 28, 2010) (“[T]he allegations against [police

officer] (that he twisted [plaintiff’s] arm violently and injured his shoulder, using more force than

was necessary to effect the arrest) suffice to state a claim for excessive force in violation of the

Fourth Amendment.”); Lozano Benítez v. Rivera Ruiz, No. 08-1766(SEC), 2009 WL 1940402, at *4-*5

(D.P.R. July 6, 2009) (plaintiff sufficiently pled excessive force claim where officer allegedly

“violently twist[ed] [plaintiff’s] arm,” which caused plaintiff to fall on road). As a result, Defendant

was “on notice” that excessive use of force—including grabbing someone’s arm, depending on the

circumstances—violates the constitution, “even [if he faced] novel factual circumstances.” Hope, 536

U.S. at 741.

b. Sub-Part Two: Whether a Reasonable Officer Would Have

Known Defendant’s Conduct Was Unlawful

The last question is whether Defendant’s “use of excessive force constituted the type and

kind of erroneous judgment that a reasonable . . . officer under the same or similar circumstances

might have made.” Morelli, 552 F.3d at 24. As the First Circuit has explained:

This inquiry is a complicated one. By definition, excessive force is

unreasonable force. But reasonable people sometimes make mistaken

judgments, and a reasonable officer sometimes may use unreasonable

force. In that event, qualified immunity gives an officer the benefit of

a margin of error. Thus, defeating a qualified immunity defense

requires a showing of an incremental degree of error—an

incommensurate use of force beyond that needed to establish a garden-

variety excessive force claim and, further, beyond the hazy border

[between excessive and acceptable force].

Looked at another way, qualified immunity is appropriate in an

excessive force case when an officer correctly perceive[s] all of the

relevant facts but [has] a mistaken understanding as to the legality of

his chosen level of force. Conversely, qualified immunity protection

would not be available when the level of force chosen by the officer

cannot in any way, shape, or form be justified under those facts.

Id. (internal quotation marks and citations omitted). At the summary judgment stage, the court must

determine “whether under the plaintiff’s version of the facts a reasonable officer should have known

that the degree of force used was plainly excessive.” Id. at 25.

Based on Plaintiff’s version of the facts, the answer here is “yes.” The court has already

assessed the Graham factors and analyzed cases—decided before the incident in this case—where

officers grabbing or twisting people’s arms constituted excessive force. Based on those analyses, the

court concludes a reasonable officer would have known that the circumstances did not justify

yanking Plaintiff’s harm like a baseball bat to remove him from the courtroom when he was loud

but non-violent and non-threatening. This is especially true given the physical size differences

between Plaintiff and Defendant. It may have been reasonable to use some force to prevent Plaintiff

from further entering the courtroom. But Defendant’s conduct, as Plaintiff and Bernardo described

it, “eclipsed the bounds of reasonableness.” Id. Thus, Plaintiff met his burden of “thwart[ing] a

qualified immunity defense” at the summary judgment stage. Id.

C. Massachusetts Civil Rights Act Claim (Count IV)

In his summary judgment motion, Defendant asks this court to “reconsider” its denial of his

motion to dismiss Plaintiff’s amended MCRA claim. (Def.’s Br. (Dkt. No. 112) at 20.) The court

originally dismissed the MCRA claim because Plaintiff failed to articulate which specific rights he

believed had been violated and how those rights were allegedly violated. (Dkt. No. 28 at 13.)

Plaintiff amended his complaint to include some factual details, and the court denied Defendant’s

motion to dismiss the amended complaint, finding the MCRA claim could proceed based on the

alleged violation of Plaintiff’s right to be free from unreasonable seizures. (Dkt. No. 53 at 9-10.)

To succeed on his MCRA claim, Plaintiff must establish 1) Hadley “threatened, intimidated or

coerced him 2) to prevent him from exercising a constitutional right.”11 Eason v. Alexis, 824 F. Supp.

2d 236, 245 (D. Mass. 2011). “The direct violation of a constitutional right does not establish a[n]

MCRA violation because ‘it is not an attempt to force someone to do something the person is not

lawfully required to do.’” Id. (quoting Columbus v. Biggio, 76 F. Supp. 2d 43, 54 (D. Mass. 1999)); see

also Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 565 (1995) (“[A] direct deprivation of rights,

even if unlawful, is not coercive because it is not an attempt to force someone to do something the

person is not lawfully required to do.”). Put another way, “[c]onduct, even unlawful conduct,

however, lacks these qualities [of being threatening, intimidating, or coercive] when all it does is take

11 The MCRA, G.L. c. 12, § 11H, prohibits

any person or persons, whether or not acting under color of law, [from]

interfer[ing] by threats, intimidation or coercion, or attempt[ing] to interfere

by threats, intimidation or coercion, with the exercise or enjoyment by any

other person or persons of rights secured by the constitution or laws of the

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

commonwealth.

someone’s rights away directly.” Longval v. Comm’r of Correction, 404 Mass. 325, 333-34 (1989).

Accordingly, “[t]he use of force is not, in itself, ‘coercive’ within the meaning of the act unless such

force is inflicted in order to achieve ‘some further purpose.’” Gallagher v. Commonwealth, No. CIV.A.

00-11859-RWZ, 2002 WL 924243, at *3 (D. Mass. Mar. 11, 2002) (quoting Longval, 404 Mass. at

333-34). In the context of an officer’s use of force, a plaintiff’s “seizure and arrest cannot satisfy

both the ‘coercion’ and ‘violation’ elements absent some evidence that the initial force was intended

to coerce” the plaintiff. Eason, 824 F. Supp. 2d at 245 (finding plaintiff had “conflate[d] the two

MCRA requirements” of a violation and coercion by arguing “officers physically coerced him into

forgoing his constitutional right to be free from unreasonable seizures, excessive force and unlawful

arrest by shoving him over the railing and later arresting him”).

Here, there seems to be some confusion over the right(s) with which Plaintiff claims

Defendant interfered. In its Memorandum and Order on the motion to dismiss the amended

complaint, the court identified three rights from the amended complaint: “(1) the right to obtain

justice freely, completely, and promptly under the Massachusetts Constitution; (2) the right to be

free from unreasonable searches and seizures under the United States and Massachusetts

Constitutions; and (3) the right of free speech under the United States and Massachusetts

Constitutions.” (Dkt. No. 53 at 9 (citing Am. Compl. (Dkt No. 40) at ¶¶ 46-50).) The court then

noted that “[a]t the very least, given that Plaintiff’s claim of an unreasonable search and seizure in

Count III is moving forward, his claim of an unreasonable search and seizure in connection with

Count IV sufficiently identifies a right at issue.” (Id. at 9.) In his opposition to the summary

judgment motion, Plaintiff argues Defendant used “excessive force to prevent [Plaintiff] from

conferring with Judge Mulcahy regarding the issuance of a writ of habeas corpus.” (Pl.’s Opp. (Dkt.

No. 113) at 13.) Plaintiff also argues that “‘detention is intrinsically coercive’” and, because he

adequately pled that coercive use of force to prevent him from conferring with the judge, the court

should let the MCRA claim proceed. (Id. at 12-13 (quoting Sietins v. Joseph, 238 F. Supp. 2d 366, 378

(D. Mass. 2003).) Defendant contends, based on evidence produced during discovery, Plaintiff “did

not give up a constitutional right by leaving the courtroom (such as the right to pursue his lawsuit).”

(Def.’s Br. (Dkt. No. 112) at 20 (emphasis omitted).) In particular, Defendant argues the reason

Plaintiff was prevented from speaking with the judge was that the judge was no longer on the bench,

meaning any use of force was not the reason Plaintiff could not get clarification from the judge.

(Def.’s Reply (Dkt. No. 114) at 11 of 12.)

The parties did not address the second and third rights listed at the top of the preceding

paragraph; thus, neither will the court. The first right—to obtain justice freely, completely, and

promptly—comes from Article 11 of the Declaration of Rights to the Massachusetts Constitution.12

The Massachusetts Supreme Judicial Court has described Article 11 as “provid[ing] a right to

petition that includes the right to seek judicial resolution of disputes,” Blanchard v. Steward Carney

Hosp., Inc., 477 Mass. 141, 158 n.24 (2017), and “the right to prompt and impartial administration of

justice,” Campatelli v. Chief Justice of Trial Court, 468 Mass. 455, 475 (2014). Plaintiff has not identified,

and the court has not found, any case supporting the theories that a litigant has a right to speak with

a judge whenever the litigant chooses or that preventing a litigant from speaking with a judge

violates any of the litigant’s rights. To the contrary, communication with judges is limited, and

litigants generally may not directly contact a judge. For example, ex parte communication is generally

prohibited, and litigants are given filing deadlines to submit written communications to the court

and given dates and times to appear personally before the court. As the Massachusetts Judicial

12 Article 11 provides:

Every subject of the commonwealth ought to find a certain remedy, by

having recourse to the laws, for all injuries or wrongs which he may receive

in his person, property, or character. He ought to obtain right and justice

freely, and without being obliged to purchase it; completely, and without any

denial; promptly, and without delay; conformably to the laws.

Guidelines for Civil Hearings Involving Self-Represented Litigants explains, “[t]he parties may not

communicate about the case with the judge outside formal court proceedings”; “[t]he judge, as a

general rule, is prohibited from communicating with a party unless all parties are aware of the

communication and have an opportunity to respond or be present”; and “[t]he parties must file all

communications to the judge (complaints, motions, affidavits) with the clerk’s office along with a

notice that copies of those materials also have been given to the opposing party.” Guidelines for pre-

hearing interaction with commentary, Judicial Guidelines for Civil Hearings Involving Self-Represented

Litigants, https://www.mass.gov/guides/judicial-guidelines-for-civil-hearings-involving-self-

represented-litigants-with-commentary#1-general-practices-with-commentary (last accessed Mar. 29,

2019); see also Massachusetts Supreme Judicial Court Code of Judicial Conduct Rule 2.9 (governing

ex parte communications), available at https://www.mass.gov/supreme-judicial-court-rules/canon-2-

a-judge-shall-perform-the-duties-of-judicial-office#rule-2-9-ex-parte-communications. As

Defendant notes, Plaintiff has not presented evidence showing Defendant interfered with Plaintiff’s

right to pursue his claim or continue with the litigation.13 As a result, Defendant is entitled to

summary judgment on Count IV. As noted earlier, Defendant requested “reconsideration” of the

court’s ruling on the motion to dismiss with respect to Count IV. The court is not reconsidering that

prior ruling, which was made under the applicable standard at that earlier stage in the litigation.

However, at this point in the litigation and with consideration being made under the summary

judgment standard, the court now is entering summary judgment in Defendant’s favor on Count IV.

13 Defendant’s argument that because the judge was not on the bench, Defendant could not have interfered

with Plaintiff’s rights is unavailing. The MCRA prohibits the attempted interference with constitutional rights.

See G.L. c. 12, § 11H. Successful interference is not a prerequisite to liability.

V. DEFENDANT’S MOTION TO STRIKE

Defendant timely disclosed a use of force expert. Plaintiff did not disclose any expert until

the week he filed his opposition to Defendant’s summary judgment motion, which was more than a

year after the deadline for expert disclosures. Plaintiff disclosed David Standen as his use of force

expert and attached Standen’s report to the summary judgment opposition. (Pl.’s Opp. (Dkt. No.

113) at 3-4; Pl.’s Opp. Ex. 4 (Dkt. No. 113-5).) In response to Plaintiff’s late disclosure, Defendant

moved for three alternative forms of relief:

 first, to strike Standen’s report; or

 second, for an order (1) allowing Defendant additional time to review Standen’s

report, depose Standen, and potentially serve additional or alternate expert

disclosures; and (2) precluding Plaintiff from augmenting Standen’s report or

producing a rebuttal expert; or

 third—which Defendant describes as “the most practical” option—the court can

refrain from addressing the issue because Defendant is entitled to summary

judgment.

(Motion to Strike (Dkt. No. 116) at 1-2). Defendant argued he had been prejudiced by the late

disclosure in multiple ways, including: Plaintiff was able to decide whether to retain an expert and

for what purposes after having the benefit of reviewing Defendant’s expert report; Plaintiff’s expert

helped train Defendant’s expert, and Defendant may have sought an alternative or additional expert

had he known Plaintiff had retained Standen; the scheduling order allowed time for Defendant to

depose Plaintiff’s expert before summary judgment, and Defendant was denied that opportunity;

and Defendant plans to submit a rebuttal report but is concerned such a report will result in further

disclosures from Plaintiff. (Id. at 4-5.)

The parties subsequently submitted a joint statement concerning the motion to strike,

requesting a hearing on the issue if summary judgment is denied. (Joint Statement (Dkt. No. 119) at

1.) In the statement, Plaintiff acknowledged he did not timely disclose a use of force expert (but did

not explain the delay) and, at the time of the disclosure deadline (January 27, 2017), he did not

intend to retain such an expert. He argued any prejudice to Defendant can be ameliorated by

amending the scheduling order to allow Defendant to depose Standen at Plaintiff’s expense, to serve

additional and/or alternate use of force expert disclosures, and to serve additional interrogatories

concerning the nature and substance of Standen’s opinions, methodology, and the factual bases of

his opinions. Plaintiff also indicated he would not file a separate opposition to the motion to strike.

The parties “dispute whether, if Plaintiff’s expert is not struck, Plaintiff’s expert may augment his

report and whether Plaintiff may supplement his discovery responses as F.R.Civ.P., 26, et seq.,

require.” (Id. at 2.)

As Defendant’s summary judgment motion is denied, the issue of remedying Plaintiff’s late

expert disclosure is ripe. Because the parties proposed substantially similar methods of reducing the

prejudice the late disclosure caused Defendant, a hearing on the issue is unnecessary. As a result, the

court substantially adopts the parties’ proposals as follows:

1. Defendant may depose Standen at Plaintiff’s expense, serve interrogatories

concerning Standen’s opinion, and serve additional and/or alternate use of force

expert disclosures.

2. Defendant may also serve an expert report rebutting Standen’s report.

3. Standen shall not augment his report. However, Plaintiff must supplement his expert

disclosure and/or Standen’s report pursuant to Fed. R. Civ. P. 26(e)(1)(A) and

26(e)(2) only if he or Standen “learns that in some material respect the disclosure or

response is incomplete or incorrect, and if the additional or corrective information

has not otherwise been made known to [Defendant] during the discovery process or

in writing.”

4. Plaintiff shall not disclose any additional or alternative use of force expert.

The court will set a scheduling conference to amend the scheduling order to allow for this additional

use of force expert discovery.

Defendant noted in his motion to strike that he has retained a medical expert, and Plaintiff

may retain one. (Medical experts were not necessary for the summary judgment motion but may be

necessary for trial.) At the scheduling conference, the court will also set deadlines for disclosures of

medical experts and related medical expert discovery.

VI. CONCLUSION

For the reasons set forth above, Defendant’s motion for summary judgment (Dkt. No. 111)

is GRANTED IN PART and DENIED IN PART. Specifically, Defendant’s motion is granted as to

Plaintiff’s MCRA claim (Count IV), and the clerk is directed to enter judgment for Defendant on

Count IV. Defendant’s summary judgment motion is otherwise denied.14

Defendant’s motion to strike (Dkt. No. 116) is GRANTED IN PART and DENIED IN

PART.

A separate order will issue setting a scheduling conference to (1) amend the scheduling order

to allow Defendant to conduct discovery related to Plaintiff’s use of force expert and to submit a

rebuttal report, (2) amend the scheduling order to accommodate disclosures and discovery related to

medical experts, and (3) schedule the final pretrial conference and trial.

It is So Ordered.

_/s/ Mark G. Mastroianni________

MARK G. MASTROIANNI

United States District Judge

14 Defendant moved for summary judgment on all remaining counts (Count III (42 U.S.C. § 1983), Count IV

(G.L. c. 12, §§ 11H & 11I), and Count V (common law assault and battery)). Neither his opening brief nor his

reply specifically addressed the assault and battery count. As a result—and because Defendant is not, at least

at this stage, entitled to qualified immunity—that count survives. Thus, Counts III (42 U.S.C. § 1983) and V

(assault and battery) will be tried.