Schand v. City of Springfield

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

MARK SCHAND, MIA SCHAND, )

MARK SCHAND JR., QUINTON SCHAND, )

and KIELE SCHAND, )

)

Plaintiffs, )

)

v. ) C.A. No. 15-cv-30148-MAP

)

CITY OF SPRINGFIELD, )

ELMER MCMAHON, LEONARD SCAMMONS, )

RAYMOND P. MUISE, MICHAEL REID, )

and JOSEPH ASSAD, )

)

Defendants. )

MEMORANDUM AND ORDER REGARDING

DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO

STRIKE

(Dkt. Nos. 86, 92, and 119)

May 6, 2019

PONSOR, U.S.D.J.

I. INTRODUCTION

Plaintiff Mark Schand (“Plaintiff” or “Schand”) and his

family members seek damages from the City of Springfield

and five city police officers, based on Schand’s

imprisonment for nearly twenty-seven years for a 1986

murder he alleges he did not commit.1 Defendants do not

concede Plaintiff’s innocence and, even assuming it, deny

that they were guilty of any negligence or misconduct in

connection with Plaintiff’s conviction and imprisonment.

Two motions for summary judgment are now before the court,

one filed individually by Defendant police officer Elmer

McMahon, Dkt. 86, and a second filed on behalf of all

remaining Defendants, Dkt. 92. Defendants also move to

strike the affidavit of Michael Hosten, a witness to the

murder who is now dead. Dkt. 119. For the reasons set

forth below, the court will allow the summary judgment

motions, in part, and will deny the motion to strike,

without prejudice to its reconsideration by the trial judge

to whom this case will now be transferred.

1 Plaintiffs’ complaint names as Defendants the City of

Springfield, Hampden County, City of Hartford, and former

Springfield Police Detectives Elmer McMahon, Leonard

Scammons, Raymond P. Muise, Michael Reid, Joseph Assad,

James Fleury, and Paul McNulty, as well as a number of John

and Jane Does. Dkt. 1. Plaintiffs voluntarily dismissed

Defendant Hampden County, Dkt. 41, and the court dismissed

the counts against Defendant City of Hartford as well as

any Jane or John Doe supervisory employees of the City of

Hartford, Dkt. 49. Plaintiffs also voluntarily dismissed

Defendants James Fleury and Paul McNulty. Dkt. 60.

Additionally, Plaintiffs dismissed voluntarily all the Jane

and John Does 1 through 20. Dkt. 81.

II. FACTUAL BACKGROUND

The facts, for purposes of the motions for summary

judgment, must of course be viewed in the light most

favorable to Plaintiffs as required by Fed. R. Civ. P. 56.

The complexity of the record has made the task of applying

this standard difficult. The parties’ submissions include:

statements made to detectives immediately following the

murder (including sometimes multiple, conflicting

statements by the same witness, in some cases later

recanted); testimony presented at the July 1987 motion to

suppress hearing prior to the original trial; testimony

presented at the November 1987 trial itself; evidence

presented in connection with an unsuccessful motion for new

trial filed in 1991 (heard and denied by the state court

trial judge in 1992, and unsuccessfully appealed to the

Massachusetts Supreme Judicial Court in 1995); evidence

presented in support of the successful motion for new trial

in 2013; and deposition testimony and affidavits generated

during discovery in connection with this civil litigation.

Although counsel have worked hard to present the record

with reasonable coherence, the court’s task has been

complicated by assertions of undisputed fact made by both

sides with sometimes elusive support in the record.

An additional handicap has been the submission by

Defendants of successive statements of undisputed fact.

Defendants’ first rendition appeared as Dkt. 93; it was

followed by Plaintiffs’ counterstatement, Dkt. 106, which

was keyed to the paragraphs of Defendants’ first statement.

Two months later, Defendants submitted a letter, Dkt. 115,

indicating they would be submitting an updated statement,

to correct certain typographical errors contained in their

original version. At the same time, Defendants submitted a

(so to speak) counter-counterstatement of facts, Dkt. 116,

which was a photocopy of Plaintiffs’ counterstatement, with

bolded commentary offering Defendants’ disagreements. On

this same day, Defendants submitted another statement of

undisputed facts, Dkt. 118, which appears, except for some

alterations in exhibits, to be virtually identical to their

original statement of undisputed facts, Dkt. 93.

To keep the discussion coherent, the court will refer

below to Dkt. 93 as “Defs’ SOF,” except where some other

version is expressly cited. This is the document that

Plaintiffs’ counterstatement (“Pls’ SOF”), Dkt. 106, refers

to, and this approach offers the cleanest avenue to a

comprehensible overview of the parties’ positions.2

Apart from the challenge of sorting out the factual

record, the court’s task has been complicated by the

extremely aggressive pleading by Plaintiffs’ counsel. As

will be seen the complaint embraces a number of causes of

action (among others, the claims against the City of

Hartford, which have been dismissed) with marginal or non-

existent legal or factual support.

A. The Murder of Victoria Seymour

On the night of September 2, 1986, at approximately

11:20 pm, Charles “Heavy” Stokes, his brother David Stokes,

Anthony Cooke, and Michael Hosten were loitering outside a

bar in Springfield, Massachusetts, called the After Five

Lounge. Strangers, who police later concluded were

probably from Hartford, approached the four men to discuss

purchasing illegal drugs. A scuffle broke out; shots were

fired, and a bullet struck Cooke in the shoulder. Charles

2 To keep the discussion straight, the court will use the

term “Defendants” when referring to Defendants except

McMahon and to “Defendant McMahon” when referring to

McMahon. McMahon, as noted, has filed his own motion for

summary judgment, and the issues related to him are in some

respects distinct.

and David Stokes, Hosten, and Cooke began to flee, and

their assailant pursued, continuing to fire at them. When

Charles Stokes stumbled, the gunman stood over him pointing

a gun in his face while Stokes begged for his life. He

then robbed Stokes of a bag containing drugs and some

amount of money. The gunman and his friends then fled in

one or two vehicles. Victoria Seymour, who had no

connection with the botched drug deal, was standing near

the front of the After Five Lounge. A single bullet fired

by the same gunman who wounded Cooke and robbed Charles

Stokes struck Ms. Seymour in the back, and she died later

at a local hospital. Two friends of Ms. Seymour’s, Willie

Darko and Michael Bernard, observed the incident from

somewhere nearby, either from an upstairs balcony or on the

street, depending on which version of their testimony is

accepted.

B. The Investigation

Shortly following the shooting, Defendant Detective

Leonard Scammons (“Scammons”} of the Springfield Police

Department (“SPD”) began interviewing the Springfield men

involved in the incident, as well as the victim’s friend

Michael Bernard. Descriptions of the shooter varied.

Charles Stokes identified him as a black male wearing blue

jeans and a white shirt. Cooke described him as a black

male with a dark complexion, five feet nine inches tall,

with a slender to medium build. On the day following the

shooting, September 3, 1986, two other Springfield officers

who are not defendants interviewed Cooke a second time at

the hospital. In this interview, Cooke described the

shooter as five feet eleven inches tall, twenty-one to

twenty-three years old, or perhaps “an old looking 19-year-

old” wearing a white warm-up jacket, blue jeans and white

leather sneakers, and having an Afro which was "sort of

full on top." Defs’ SOF, Dkt. 93, Ex. 2 (Declaration of

Detective Robert Cheetham at 4, report of interview with

Anthony Cooke).

That same day, September 3, Defendant Scammons and a

non-defendant Springfield police detective interviewed

Michael Hosten, who described the assailant as a clean-

shaven black male with medium skin who appeared to be

around 30 years old, wearing a brown or beige jacket.

The first interview of Victoria Seymour’s friend

Michael Bernard also occurred the day after the shooting,

September 3. Defendants’ Statement of Facts, Dkt. 93,

regarding this interview is perplexing. It offers a

supposed description by Bernard of the shooter, citing in

support of this description the Complaint, Dkt. 1 at ¶42,

as well as Dkt. 93, Ex. 4A, which Defendants’ Statement of

Facts identifies as a “9/3/86 Signed Bernard Statement.”

Defs’ SOF at ¶5, Dkt. 93.

Contrary to Defendants’ assertion, ¶42 of the Complaint

simply says that Bernard “did not provide a physical

description of the assailant.” Dkt. 1 at ¶42. Moreover,

the document attached as Exhibit 4A to Defendants’ first

Statement of Facts, Dkt. 93, is not (as Plaintiffs’

Statement of Facts at ¶5, Dkt. 106, points out) Bernard’s

9/3/86 statement. Rather, it is an undated statement

obviously taken from Bernard at some later point in time.

Indeed, in Exhibit 4A to Dkt. 93, Bernard explicitly says

that the statement is “in addition to a statement that [he]

gave on September 3, 1986.” Bernard’s 9/3/86 statement

actually appears in the record as Exhibit 3 to Dkt. 105,

offered in support of Plaintiffs’ opposition to Defendants’

motion for summary judgment. To complicate matters

further, Defendants have substituted a new Exhibit 4A,

Bernard’s actual statement of September 3, 1986, for the

later undated statement originally appearing as Exhibit 4A

as part of Dkt. 93, in their subsequent corrected Statement

of Facts, Dkt. 116. In Dkt. 116, the original Exhibit 4A

appended to Dkt. 93 has vanished.

At any rate, it appears undisputed that in his

statement of September 3, 1986, Bernard described seeing

the shooter discharge a handgun at Charles Stokes three or

four times, and, when Stokes fell, lean over and take a

plastic bag from him, then run away. Bernard described the

assailant as five feet seven inches tall, 160 pounds,

twenty-five years old with dark skin. Bernard said in this

statement that he had never seen the shooter before. Dkt.

105, Ex. 3 at 2. In the later undated statement,

originally offered as Exhibit 4A of Defendants’ Statement

of Facts, Dkt. 93, Bernard stated, inconsistently, that

prior to the shooting he had seen the shooter a couple

times in Hartford.

It is perhaps helpful here to take a step away from the

chronology to note the contents of the undated, but later,

Bernard statement that originally appeared in Defendants’

Statement of Facts, Dkt. 93, as Exhibit 4A. First, the

evidence suggests that this statement was given some time

after September 23, 1986. In this statement, Bernard

described how at some point he was shown approximately

thirty pictures of black males by Defendant Scammons and

another Springfield Detective, Milton Doty. The record is

clear that Springfield detectives first received these

thirty photographs from a Hartford detective on September

23. Bernard did not describe any of the pictures shown to

him at this time as a Polaroid. In fact, Bernard selected

as the shooter picture number 20618, indisputably a mugshot

of Schand taken by the Hartford police. This mugshot

depicted Schand without any glasses and not wearing chains,

and Bernard’s statement did not describe Schand as wearing

either glasses or chains in the photo he saw. He asserted

at this time that he was “100% sure” of his identification

of Plaintiff as the shooter. Another police activity

report dated October 24, 1986, describes a further

interview with Bernard in which he confirmed the certainty

of his identification of Schand. Dkt. 116, Ex. 4L at 33.

It is undisputed that Bernard has never recanted his

identification of Schand as the shooter. However, in his

later testimony during the course of the suppression

hearing in July 1987, prior to Schand’s trial, Bernard

testified that he saw pictures of Schand “with chains.”

Dkt. 105, Ex. 10 at 188. This suggests Bernard may at some

point have seen a Polaroid picture of Schand that showed

him wearing gold chains, a critical point in the discussion

below. His testimony offers no details about how the

pictures “with chains” were shown to him, who showed them

to him, or the context in which he saw them.

Returning to the chronology and the date of September

3, 1986, on this day, Defendant Detectives Michael Reid

(“Reid”) and Joseph Assad (“Assad”) interviewed two

teenaged boys, Lavon Dixon (“Dixon”) and Al Chase

(sometimes known as Jermaine Bush, but hereafter “Chase”),

who had been eating at a pizza parlor called Pizza King

half a mile from the After Five Lounge at around 11 pm on

September 2, approximately twenty minutes before the

shooting. A summary report of the interview prepared by

Reid and Assad appears in the record as Defendants’

Statement of Facts, Dkt. 93, Exhibit 3B. According to the

report, Chase stated that while he and Dixon were at the

Pizza King, a group of men from Hartford approached them.

One of the men began asking Chase about some gold chains he

was wearing, and Chase became concerned that he might be

robbed. Chase described this person (“Subject 1”) as a

black male, twenty years old, five feet seven inches tall,

with black hair in braids, a brown and white short-sleeved

shirt, blue pants, and blue sneakers, wearing sunglasses

with brown frames and gold trim. Chase described another

man in the group (“Subject 2”) as twenty-six years old,

five feet eleven inches tall, with light skin, wearing a

beige fisherman’s hat and a beige shirt. A third man

(“Subject 3”), according to Chase, was very dark, wearing a

yellow shirt and four gold chains. A fourth man was

wearing a red shirt, and a fifth had on red sneakers.

Chase told Assad and Reid that he recognized Subjects 1 and

3 from having previously seen them.

At the bottom of Reid’s and Assad’s September 3, 1986

report describing the Chase interview is a handwritten

note: “one with bad/decaying teeth.” Dkt. 93, Exhibit 3B

at 6 (the word “bad” was inserted above the word

“decaying”). Plaintiffs’ Statement of Facts cites this

notation as evidence that Chase “identified the perpetrator

as ‘one with bad/decaying teeth.’” Pls’ SOF at ¶8, Dkt.

106. The record, however -- at least as reflected in this

document -- does not support this assertion for two

reasons. First, Chase was not at the scene of the shooting

and therefore was not in a position to identify any

“perpetrator.” Second, it is impossible to tell from this

interview summary which of the several subjects Chase

described encountering at the Pizza King had the

“bad/decaying teeth” that the handwritten comment refers

to.

According to the summary report, Chase told the

officers that four of the men who approached him were

driving a “grayish custom van” with a Connecticut license

plate. Two other men in the group were driving a second

vehicle, a dark-colored car. Defs’ SOF, Dkt. 93, Ex. 3B.

More than twenty-five years following the shooting, in

January 2013, an individual named Randy Weaver submitted an

affidavit in support of Schand’s ultimately successful

motion for new trial, indicating that he had come from

Hartford on the night of the shooting, September 2, 1986.

He had been in a pizza restaurant near the After Five

Lounge that evening, looking for a man who had stolen a

gold chain and medallion from him at a “Run DMC” concert in

Springfield on August 30, 1986. He was with a group of

other men from Hartford, including a man named Tracy

Fisher, who had broken teeth (apparently resulting from an

earlier gunshot wound), and another man named Ty Johnson.

At the time, Weaver wore his hair in braids, wore gold

chains, and drove a van. Dkt. 105, Ex. 59 at ¶6. Later,

Weaver was in the area of the After Five Lounge when he

heard shots. He denied participating in any shooting, but

he described Johnson and Fisher reporting to him later that

they had exchanged gunshots with some “Springfield guys”

after a tussle over drugs. Id. at ¶13. Weaver stated that

sometime after Schand was arrested, he told unidentified

Hartford police officers that he had been in Springfield in

the area of the shooting and that “Mark Schand wasn’t

there.” Id. at ¶14. Without describing how he could be

sure, he said that he “knew that Mark Schand was not in

Springfield the night of September 2, 1986.” Id. at ¶15.

The record contains no explicit evidence that the Hartford

police passed Weaver’s comments on to the Springfield

investigating officers. Plaintiffs contend, nevertheless,

that Defendants were negligent in not adequately pursuing

an investigation into whether either Weaver (with the

chains and braids) or Fisher (with the broken teeth) may

have been the shooter, and not Plaintiff.

Returning to September 3, 1986, on that day Defendant

Detective Elmer McMahon interviewed a man named Richard

Ramsey, who lived near the After Five Lounge. Ramsey

stated that he had just arrived home when he heard the

gunshots. When he got outside, he saw three men run into a

blue van, and two others run into a blue or black car.

Both vehicles sped away. Defs’ SOF, Dkt. 93 at ¶10. No

further interview was conducted of Ramsey.

Plaintiffs’ Statement of Facts identifies other

statements taken by detectives on September 3 from persons

in the area of the shooting on the evening before. These

provide conflicting descriptions of what occurred. One

purported witness, Water Teal, described the shooter as

wearing a ski mask, chasing the victim, shooting her

multiple times, and pulling money out of her bra. Dkt.

105, Ex. 5. Another witness, Shirley Pleasant, described

the group from Connecticut as driving a black Lincoln or

red Mazda. Id., Ex. 6. Yet another witness, Walter White,

described the gunman as between twenty-seven and thirty-

five years old, between five feet eight inches and six feet

tall, average build, weighing about 170 lbs. According to

White, the shooter had short cropped hair and it looked

like he had a “receding hairline.” Id., Ex. 7. Finally,

Lawrence Gadson, another witness, described the gunman as a

black male, dark skinned, about 5'5", who looked like he

was wearing "corn braids." Id., Ex. 8.

The investigation of the Seymour murder pursued the

possibility that the killer had come from the Hartford

area. Kenneth Whitted, a confidential informant detained

in Springfield at that time, was not a witness to the

shooting, but he told the detectives that he could

generally identify men from Hartford who had been involved

in recent altercations in Springfield. On September 17,

1986, Defendant Detectives Scammons and Assad drove Whitted

from Springfield to the Hartford Police Department, where

he was shown a collection of mugshots. Whitted identified

six or seven photos of men who, according to him, had

visited Springfield over the summer. Defendants contend

that the record is undisputed that Schand’s photo was not

among those shown to Whitted, but their citation for this

assertion is the complaint, Dkt. 1 at ¶¶63-69, which says

just the opposite. Paragraph 67 of the complaint states

that two pictures of Schand were shown to Whitted; ¶69 says

that Whitted did not pick either photo as depicting a

person who had been in any recent altercations in

Springfield. Plaintiffs, for their part, contend that

three pictures of Schand were among the photos shown to

Whitted at that time. Pls’ SOF at ¶16, Dkt. 106 (citing

“Plaintiffs’ Ex. 10,” purportedly a motion to suppress

transcript at 127-128). A review of Exhibit 10 (at least

in the version appearing on the electronic docket) reveals

no reference to Whitted testimony, or to pages 127-128 of

the transcript. The dispute, while puzzling, is not

material to any of the substantive issues to be resolved in

this opinion. In other words, the question whether

Schand’s photo appeared in the selection of men from

Hartford who, according to Whitted, may (or may not) have

been involved in prior beefs in Springfield does not bear

significantly any issue now before the court.

It is undisputed that shortly after the day of his trip

to Hartford with Whitted, September 13, 1986, Defendant

Detective Joseph Assad left the Homicide Bureau and

thereafter had no involvement in the investigation of the

Seymour murder. Pls’ SOF at ¶19, Dkt. 106.

On September 18, Defendants Scammons and Reid showed a

photo array to Dixon and Chase of the men from Hartford who

had been selected by Whitted the day before. Chase "liked"

the picture of a man with cornrows as possibly being among

the men who confronted him at the Pizza King on the night

of the shooting, and Dixon "liked" two men in the array

named Pruitt and Syms. Reid and Scammons did not make a

record of the photos they showed Dixon and Chase. It

appears undisputed, however, that even if a picture of

Schand was included in the group of photos previously

selected by Whitted, Schand’s photo was not among those

Chase and Dixon “liked.”

That same day, September 18, Cooke was also shown the

same photo array. He did not make an identification. The

parties dispute whether Reid and Scammons adequately

recorded which photos were shown to Cooke. For purposes of

Defendants’ motions, the court will accept Plaintiffs’

contention that they failed to do this.

On September 19, 1986, Scammons and Reid interviewed

Tanya Polon, whose home was across from the After Five

Lounge. She stated that after the shooting, she had seen a

four-door white Datsun traveling down the street with four

black men in it. The Datsun was followed by a silver or

light blue van with a white stripe running down the side, a

window on the top, bubble on the side, and a ladder on the

back. Polon noted that neither vehicle had its lights on.

Then, a black male, about 28 years old, dark complexion,

about five feet seven inches tall with a large three-inch

Afro appeared, ran down the street, and jumped into the

Datsun. The driver put the lights on and drove away.

Defs’ SOF at ¶22, Dkt. 93. Polon told the officers that

her neighbor Lee Hutchins could identify the van. No

evidence in the record indicates whether any Springfield

detective attempted to contact or interview Hutchins.

Shown a photo array, Polon made no identification.

At some point in early or mid-September of 1986 -- the

record does not indicate when exactly, but the parties seem

to agree on this general timeframe -- an unidentified

officer of the Hartford police stopped Plaintiff for a

motorcycle infraction and directed him to the Hartford

police station. At the station, three Polaroid photographs

of Plaintiff were taken by this officer, or perhaps by some

other unidentified Hartford officer. In those photos,

Plaintiff was wearing what were then popularly called

“gazelle” or “cazal” oversized sunglasses, thick chains on

his neck, and his hair in cornrows. Two of the photographs

depicted Plaintiff full-face, and one showed him facing

right. Dkt. 105, Ex. 15. Plaintiff does not appear to

contend that the motorcycle stop and the resulting

photographing were pretextual, i.e., tactics intended to

obtain a picture of Schand for purposes of the Seymour

murder investigation.

Here, the discussion must break from straight

chronology to address a central disagreement between the

parties: the question whether a material dispute of fact

exists on the record as to if and when these Polaroid

photos of Plaintiff came into the possession of any of the

Defendants and were shown to witnesses. Defendants cite

the deposition testimony of Defendant Raymond Muise as

support for their contention that Defendants only received

the Polaroid photos of Plaintiff from the Hartford police

on October 29, 1986, the day Plaintiff was arrested, and

that the Polaroids were never shown as part of any photo

array to any witnesses prior to, or even after, that date.

Defs’ SOF, Dkt. 93, Ex. 9 (Muise Dep. at 71-73) & Ex. 5

(Muise trial testimony at 740-742). Indeed, Muise

testified at his deposition that in his opinion using the

Polaroids “would be too suggestive.” Id., Ex. 9 at 77;

Dkt. 105, Ex. 31 at 77.

Plaintiffs strenuously argue that the record contains

evidence that Defendants somehow possessed the Polaroids of

Plaintiff prior to October 29, 1986, and that they included

them in photo arrays shown to potential witnesses. Some of

these witnesses ultimately identified Plaintiff as the gun-

wielding assailant outside the After Five Lounge and

testified to this effect at Plaintiff’s trial. Plaintiffs

point to the testimony of Michael Bernard at the motion to

suppress hearing. As noted above, according to the

transcript, Bernard stated that, at some unspecified date

prior to October 29, 1986, he was shown a picture of

Plaintiff “with chains.” Dkt. 105, Ex. 10 at 188. The

Hartford mugshots do not show Plaintiff wearing chains; the

Polaroids do. This can be easily seen by comparing Dkt.

105, Ex. 15, with Dkt. 93, Ex. 43. Moreover, Bernard

identified “Exhibit 2A” at the suppression hearing, which

Plaintiffs contend is one of the Polaroids, as a picture he

was shown at some time prior to October 29. Dkt. 105, Ex.

10 at 188. However -- again, as already noted -- Bernard

never offers any details about the circumstances under

which he saw any picture of Plaintiff “with chains.”

Plaintiffs also point to the testimony of the two

teenagers, Al Chase and Lavon Dixon, who encountered the

men from Hartford at the Pizza King prior to the shooting.

Chase testified at Plaintiff’s trial that, at some point,

officers came to his school and showed him a photograph of

Plaintiff wearing “gazelles” and with his hair in braids.

Since the mugshots do not depict Schand wearing gazelle-

type sunglasses, it is a reasonable inference that Chase

viewed at least one of the three Polaroids taken in

Hartford. Dkt. 105, Ex. 13 at 249. However, the context

of the testimony does not suggest the date of this

incident, except that it appears to have taken place when

police questioned Chase at his school. The other teenager,

Dixon, offered similar testimony at the 1987 trial about

being shown, also at school, a photo of Plaintiff with

“gazelles.” Id. at 275-277.

While the record is murky, and certainly disputed, it

cannot be said at this stage that Plaintiffs lack evidence

that could justify a reasonable jury in concluding that, by

some unidentified process, Springfield police officers came

into possession of the Polaroid photos of Schand from the

Hartford police and showed them to potential witnesses

prior to Schand’s arrest on October 29, 1986. No record

evidence describes how they did this.

Plaintiffs seem to argue that displaying one of the

Hartford Polaroids to a witness during the murder

investigation would have been, per se, improperly

suggestive and a violation of Schand’s constitutional

rights. But, as will be seen, the use of a Polaroid would

not necessarily have been, in itself, improperly

suggestive. Any conclusions about the suggestiveness of

this tactic would depend on the circumstances.

Defendants, of course, have no light to throw on this

issue, since they deny ever showing the Polaroids to any

witnesses.

The only specific evidence in the record explicitly

supporting a finding that a Polaroid photo of Schand was

used suggestively came from Michael Hosten, a witness at

the scene who testified for the Commonwealth at the 1987

trial and identified Schand as the shooter. In June of

2006, almost twenty years after Schand’s conviction, Hosten

signed an affidavit repudiating his trial testimony and

describing police misconduct, including improper pressure

by officers to implicate Schand and blatantly suggestive

misuse of the Polaroid. Dkt. 105, Ex. 24. Hosten died

shortly after signing the affidavit, and Defendants’ motion

to strike will be addressed below.

The discussion now returns to the straightforward

chronology. On September 23, 1986, Defendant Scammons and

Detective Doty traveled to Hartford to speak with Detective

Ronald Faggiani regarding Hartford men known to frequent

Springfield.3 Faggiani provided them with a selection of

roughly thirty police mugshots that included pictures of

Plaintiff, three of his brothers, Terry Schand, Antonio

Schand, and Roger Schand, and one of Randy Weaver. Apart

from this, no record was kept of the thirty or so photos

received.

Later that day, September 23, Detectives McNulty and

Fleury re-interviewed Cooke, showing him the thirty

mugshots that had been provided earlier that day by the

Hartford police. Cooke picked out two photos as possibly

being one of the men from the After Five shooting:

3 Detective Faggiani is now deceased. His name is spelled

variously by the parties. The court has adopted what seems

to be the most likely version.

Plaintiff and Antonio Schand, his brother. Cooke stated

that he was 60-70% sure about Plaintiff's brother Antonio

and that Plaintiff may have been present at the shooting,

but he was not as sure about Plaintiff as Antonio. Defs’

SOF at ¶27, Dkt. 93. Cooke did not recall any of the men

from that night having cornrows. No record was kept of the

photos shown to Cooke on this date.

On September 24, 1986, Defendants Scammons and Reid

interviewed Dixon, Chase, Whitted, and Charles Stokes,

showing them the photos received from Hartford. Chase

identified Plaintiff with 90% certainty as one of the men

he encountered at the Pizza King shortly before the

shooting and another man, Anthony Atkins, with 50%

certainty. Dixon identified Plaintiff with 50% certainty

and Atkins with 30-40% certainty. Defs’ SOF at ¶28, Dkt.

93. Whitted picked out Plaintiff from the photo array as a

man he had seen in Springfield on several occasions.

Charles Stokes selected the photo of Plaintiff and another

man named Tracy Truman as looking similar to the man who

attacked him, but only with 30-40% confidence. At this

time, Stokes described his attacker as a black male, about

thirty years old, five feet seven inches tall, 155 pounds,

wearing a beige mechanics uniform. He also said his

attacker “appeared to have bad teeth.” Defs’ SOF, Dkt. 93,

Ex. 4J at 2. Plaintiff has a visible front gold tooth, but

a jury could find that he does not have what could

reasonably be described as “bad teeth.”

Defendants Scammons and Reid memorialized these four

interviews (Chase, Dixon, Whitted, and Charles Stokes) in a

police activity report dated September 24, 1986 ("the

Scammons Report"). Defs’ SOF, Ex. 4J. Stokes's account of

his assailant appearing to have bad teeth was contained on

the second page of the report.

At this point, the discussion will diverge again from

the chronology to address another crucial issue, the

Scammons Report and what happened to its second page.

Viewing the evidence in the light most favorable to

Plaintiff here, a jury could conclude that Schand’s

attorney, Roy Anderson, was given only the first page of

the Scammons Report as part of the Commonwealth’s document

disclosure prior to Plaintiff’s trial. He never received

the second page with the arguably exculpatory comment by

Stokes that his assailant had “bad teeth.” A doctored copy

of the Scammons Report was discovered in 1991 in a locked

cabinet in what was then Defendant McMahon’s office. On

this copy, references on the first page of the report

indicating that it was “Page 1 of 2” and that the report

was “continued on page 2” had been covered in white-out, so

that if a copy were made of the first page, the existence

of the second page would be concealed. Plaintiffs contend

that because Defendant McMahon supervised the investigation

and the altered report was found in his office, a jury

could reasonably conclude that McMahon was responsible both

for the alterations and for deliberately withholding

exculpatory evidence.

On October 15, 1986, Randy Weaver was arrested in

Hartford on unconnected charges. As noted above, at that

time Weaver drove a blue and grey van which matched the

description of the vehicle at the shooting, styled his hair

in cornrows, and wore the “gazelle” style of sunglasses

Plaintiff was wearing in the Polaroid photos. Some

evidence suggests this information (the “Hartford

material”) was shared by Hartford law enforcement agents

with the Springfield police, although Defendants dispute

this. A jury could find that this Hartford material was

never shared with Schand’s defense attorney, who might have

used it at the criminal trial as evidence that Weaver, not

Schand, was the gunman at the After Five Lounge shooting.

As noted above, sometime after September 23, 1986,

Springfield detectives Doty and Scammons took a statement

from Michael Bernard while Bernard was being held in the

Springfield District Court lockup. They showed Bernard the

thirty mugshots received from Hartford detective Faggiani,

and Bernard selected the picture of Plaintiff, stating that

he was “100% sure that this was the guy who had the gun.”

Defs’ SOF, Dkt. 93, Ex. 4A. He then signed and dated the

picture, confirming that it bore the number 20618, which

was a mug shot, not a Polaroid, of Plaintiff. Dkt. 116,

Ex. 52 at 2. According to Bernard’s statement, when

Scammons and Doty asked Bernard a second time how sure he

was of his identification, he stated “I am 100% sure.”

Dkt. 93, Ex. 4A. Another, shorter report submitted by

detectives Doty and Scammons, dated October 24, 1986,

describes an interview with Michael Bernard and again notes

how Bernard “positively identified a photo of Mark Schand

as a picture of the person who had a gun in his hand the

night the Seymour homicide.” Defs’ SOF, Dkt. 93, Ex. 4L.

It is not clear whether Exhibit L is a shorter description

of the contact that produced the statement by Bernard

included in Exhibit 4A, or if it is describing some

additional, independent contact. At any rate, on October

29, 1986, based on the positive identification of Schand by

Michael Bernard, the Hampden County District Attorney’s

office obtained a warrant for the arrest of Mark Schand for

the murder of Victoria Seymour. As noted above, the

evidence, though disputed, is sufficient to permit a jury

to conclude that Bernard was shown one of the Polaroids of

Schand on or about this time.

On October 29, 1986, pursuant to the warrant issued

that day, Plaintiff was arrested and questioned by the SPD.

He stated that he only wore the “gazelle” glasses the day

the Hartford police took the Polaroid, that he had not been

in Springfield on September 2, 1986 (and had, in fact, only

visited Springfield once in his life, on another occasion),

and that he had never driven a van.

The SPD continued its investigation after Schand’s

arrest. On October 30, 1986, Reid and Muise interviewed

Hosten again and showed him an array of eight photographs.

Hosten selected photo 20618, the mugshot of Plaintiff, and

stated that he was positive that he was the shooter. Defs’

SOF, Dkt. 93, Exs. 16D & 16E. Hosten eventually testified

for the Commonwealth at Plaintiff’s trial, a key witness

positively identifying Plaintiff as the shooter on

September 2, 1986.

According to a statement obtained from Hosten by an

investigator employed by Plaintiffs in June 2006, twenty

years after Schand’s trial, Hosten’s identification was a

deliberate lie, made to curry favor with Defendants and the

Springfield District Attorney’s office. Hosten said in

this statement that at the October 30, 1986 meeting, Reid

and Muise first showed him a color Polaroid of Plaintiff

and told him that Schand had been arrested for the murder

of Seymour. The affidavit made clear that Hosten’s mind

was not tainted by any suggestive display of the Polaroid.

He said in the 2006 statement that (although he never

revealed it to the officers) as soon as he saw the

Polaroid, he was immediately “sure he was not the person

who had robbed Heavy Stokes on September 2, 1986.” Dkt.

105, Ex. 24 at ¶26 (emphasis in original). After showing

him the Polaroid on its own, the officers, according to

Hosten’s statement, then inserted the Polaroid into the

photo array of mug shots, and Hosten picked out Plaintiff

as the shooter. He did not do this because he in fact

recognized Schand as the gunman, or because the Polaroid

had somehow misled him into actually thinking Schand was

the shooter, but simply because “it was obvious that this

was the person they wanted me to pick out.” Id. at ¶29.

The officers then told Hosten that “if [he] cooperated,

they would take care of [him] and make all [his] cases

disappear.” Dkt. 105, Ex. 24 at ¶31. Hosten died shortly

after giving this statement, and Defendants never had an

opportunity to question him about it. The statement’s

admissibility is a very close question, which will be

addressed below in connection with Defendants’ motion to

strike.

On November 12, 1986, Whitted signed a statement

identifying Schand’s photo as someone he had seen in

Springfield on several occasions. Defs’ SOF at ¶48, Dkt.

93, Ex. 4M. No record was kept of precisely which photos

were shown Whitted.

On December 4, another witness to the shooting,

Lawrence Gadson, selected a photo of Schand as possibly

being the individual who wielded the gun on September 2,

1986. He stated, however, that he would prefer to see

Schand in person before making a firm decision. Defs’ SOF,

at ¶49, Exhibit 3F.

On December 15, 1986, Defendant McMahon organized a

lineup for Dixon, Chase, Charles Stokes, and Gadson.

Plaintiff took part in the lineup with five filler

participants: two SPD officers, two Hampden County jail

inmates, and one man from the police lockup. Counsel for

Schand was present at the lineup and voiced no protest

about its composition. Defendants complied with defense

counsel’s request that the members of the lineup wear hats.

In separate examinations of the lineup, Dixon and Chase

identified Plaintiff as the person they saw at the Pizza

King immediately prior to the shooting. Stokes identified

Plaintiff with 55% certainty. Gadson did not make an

identification. Defs’ SOF at ¶¶50-52, Dkt. 93.

Resolution of the question whether, viewing the record

in the light most favorable to Plaintiffs, a jury could

reasonably conclude that the composition of the lineup was

unduly suggestive presents a challenge. A photograph of

the lineup appears as Exhibit 27 to Dkt. 105. It reveals

that Plaintiff is probably somewhat shorter and somewhat

younger than most of the other members of the lineup, and

he has no facial hair, unlike four of the six participants.

It is unsurprising that defense counsel voiced no protest

about the composition of the lineup, since Exhibit 27

reveals no egregious manipulation.

One problem emphasized by Plaintiffs (accepting their

view of the facts) is that Defendants’ previous display of

the Polaroids of Plaintiff to Dixon and Chase corrupted

their perceptions and resulted in their mistaken

identification of Plaintiff at the lineup. The improper

use of the Polaroids, Plaintiffs contend, primed the two

teenagers to pick out Plaintiff in the lineup as one of the

men they saw at the Pizza King. Regarding the narrow

question of the suggestive composition of the lineup,

however, this argument offers little assistance to

Plaintiffs. A jury would not need to find the lineup

suggestive in itself in order to conclude that the prior

manipulation of Dixon and Chase with the Polaroids vitiated

any identifications they made of Plaintiff at the lineup.

Another problem with the lineup, Plaintiffs say, is

that Charles Stokes later stated that he knew all the

members of the lineup except Schand and therefore was drawn

to identify him, though with only 55% certainty. But the

record contains no evidence that Stokes ever told

Defendants that he was familiar with the other members of

the lineup, so this problem can hardly be laid at their

feet.

Stokes’s testimony has other problems. A few months

after the lineup, he informed Defendants that he was, in

fact, positive that Schand was the person who pointed a gun

at him and robbed him, not 55% sure as he had previously

stated. Dkt. 105, Ex. 37. He later testified to this

effect at Plaintiff’s trial as a key identification witness

for the Commonwealth. Six years following that, during the

hearing at Schand’s initial motion for a new trial in 1992,

Stokes entirely repudiated his earlier identifications and

claimed that Schand was not present at the shooting.

On December 31, 1986, Defendant Scammons interviewed

William Darko, the friend of Victoria Seymour who, along

with Bernard, was present with her at the After Five Lounge

on the night of the shooting. Scammons showed Darko an

array of what Darko described as nine “color” photos.

Defs’ SOF, Dkt. 93, Ex. 4N at 2. Darko’s statement

indicated that he selected a mugshot of Plaintiff with “the

number 20618 on it.” Id. at 3. Darko stated that he was

sure that this picture depicted “the guy who had the gun”

and signed the back. Plaintiffs contend that this

identification was tainted because the reference to “color”

photos means that a Polaroid or Polaroids must have been

improperly inserted into the array. The mugshots,

including number 20618, were black-and-white. Darko also

testified at the July 1987 suppression hearing prior to

Schand’s trial that he was shown “Exhibit 2B,” one of the

Polaroid photos, at this interview. Dkt. 105, Ex. 10 at

41-42.

On April 10, 1987, Defendant Scammons took a statement

from Anthony Cooke in which he stated that on April 2, he

recognized Plaintiff while the two of them were being held

in a local jail. Cooke said he noticed Plaintiff's gold

tooth and was certain he was the same man who had been

present at the After Five shooting, standing over Charles

Stokes with a gun. Defs’ SOF, Dkt. 93, Ex. 4Q.

In the lead-up to the trial, prosecutors delivered

discovery to Schand’s defense counsel, Roy Anderson. No

one kept records of exactly what documents were produced or

when, but Anderson has stated that he never received the

second page of the Scammons Report and that, if he had, he

would have used it during his cross-examination of

witnesses at Plaintiff’s trial. In addition, Anderson

never received the “Hartford material” file that would have

revealed the identities of other individuals, such as

Weaver, who may have been involved in the Seymour murder.

A jury could find that Defendants possessed this file,

because they produced it as part of discovery in a later

trial of Plaintiff’s brother, Roger Schand. Pls’ SOF at

¶194, Dkt. 106.

The parties’ submissions offer a plethora of additional

details concerning the events leading up to Schand’s trial,

including a number of investigative pathways -- some

pursued, some abandoned -- that have not been described

here. The summary above, regrettably lengthy, presents the

factual outline of the case relevant to the pending

motions.

C. SPD Training

The parties have presented sharply different

perspectives on the nature of the training received by SPD

officers during the years leading up to the Seymour murder.

Defendants point to record evidence (sometimes difficult to

pin down in their citations) of some structured training,

through the Municipal Police Training Committee and other

resources, on handling exculpatory evidence and

identification procedures. The depositions and other

evidence in this area suggest that a significant amount of

the training, though not all, was informal and on the job.

Plaintiffs highlight the absence of written policies and

procedures, and they point out portions of Defendants’

depositions that suggest training in critical areas was at

best informal and at worst scanty or non-existent. See

Defs’ SOF at ¶¶70-74, Dkt. 93, and the responsive

paragraphs in Pls’ SOF, Dkt. 106. It is clear that some

training, whether formal, on the job, or through an annual

in-service process -- and whether supported by written

policies or developed through unwritten practices or the

discretion of the officers -- was provided regarding

identification procedures and handling of exculpatory

evidence.

Plaintiffs’ expert report, authored by Lou Reiter, a

former law enforcement officer and expert on police

practices, stated that “the training, policies, practices,

and supervisory oversight of detectives in the Springfield

Police Department were egregious departures from generally

accepted police practices at the time of the arrest and

conviction of Mr. Schand.” Pls’ SOF, Dkt. 105, Ex. 46 at

¶14. Reiter noted, for example, that the Springfield

police manual lacked written policies concerning photo

arrays and lineups and the handling of exculpatory

evidence. By comparison, model police manuals such as the

Rhode Island Law Enforcement Manual and an order issued

from the Newton, Massachusetts Police Department, contained

detailed policies governing identification procedures and

the handling of exculpatory evidence. Id. at ¶¶20-28.

Two points deserve note in connection with the factual

context of the training issue.

First, if the sole issue regarding municipal liability

were whether Defendant Springfield’s police training,

policies, and practices were substandard as of 1986,

Reiter’s report would be sufficient to generate a dispute

and put that issue in play. However, as the First Circuit

recently noted, expert testimony to this effect is not

enough. A plaintiff seeking to demonstrate municipal

liability must show not only that the city’s training

regimen fell short, but also that the city “knew or had

reason to believe that such a regimen had unconstitutional

effects.” Gray v. Cummings, 917 F.3d 1, 14 (1st Cir.

2019). This may be done by offering evidence of “past

violations sufficient to put the [city] on notice of such

effects.” Id. No evidence of any such past violations

exists in the record.

Second, Reiter’s report offers a helpful perspective on

the use of mixed photo arrays as of 1986. A key inference

to be drawn from his report is that the use of photo arrays

involving, for example, mug shots mixed with other photos

did not necessarily render an identification tainted, so

long as the mixed array was not presented in a suggestive

manner. His report approvingly quotes the Massachusetts Law

Enforcement Handbook, which states that the preferable

practice is to use photos other than mugshots “if they are

available.” Dkt. 105, Ex. 46 at ¶21. The Handbook advises

that “if the suspect’s photograph is in color or is large,

include several other color or large photographs in the

sampling.” Id. A later authority suggests that “‘[m]ug

shots’ should not be mixed with other photographs unless

there is not [an] alternative.” Id. at ¶22 (emphasis

supplied). Reiter’s report supports the approach described

in the 1985 Rhode Island Law Enforcement Manual, which

states that “if possible, at least five photographs of

different subjects” should be used depicting the persons in

a similar way. Id. at ¶26. If the photograph of the

subject is a mug shot with a front and side view, “then

most of the photos should also be front and side views.”

Id. (emphasis supplied). The report’s summary of the

requirements for a valid photo array by “at least 1985”

includes the proviso that “if mug shots are used, that at

least some of the other photos in the array are also mug

shots.” Id. at ¶28. The report never suggests that

different types of photographs, such as Polaroids, could

never be used as part of a proper identification process,

but only that the use of Polaroids as part of a

photographic array is a “practice generally understood to

be unduly suggestive, particularly when Polaroids are mixed

in with other non-Polaroid photographs.” Id. at ¶57

(emphasis supplied).

The factual summary of the Seymour murder investigation

– viewed in the light most favorable to Plaintiff –- would,

as noted already, permit a jury to conclude that at least

one Polaroid was used in some manner during police

interviews with potential witnesses. The testimony of

Darko and Bernard at the suppression hearing prior to

Schand’s trial could be interpreted by a jury as suggesting

that they were shown at least one Polaroid during their

contacts with police, along with other photos. The

evidence of suggestiveness, beyond the mere use of a

Polaroid, is inferential. Only the 2006 Hosten affidavit,

if it is admissible, explicitly describes an instance of a

clear misuse of a Polaroid by police.

D. The Trial and Pre-Trial Motions

From July 14 to July 17, 1987, Massachusetts Superior

Court Judge Lawrence B. Urbano presided at a suppression

hearing, preparatory to Plaintiff’s trial.4 Among other

issues, the hearing presented the question whether Schand’s

identification was tainted by unduly suggestive tactics

used by police officers, including the use of a Polaroid or

Polaroids in the photo arrays. Witnesses included Chase,

Charles Stokes, Cooke, Darko, Dixon, David Stokes, Hosten,

and Bernard, along with Defendants Scammons, Muise, and

Reid. At the suppression hearing Darko, as noted,

testified that police showed him a Polaroid of Schand along

4 Defendants’ Statement of Facts identifies the presiding

judge incorrectly as “Mastroianni.” Dkt. 93 at ¶67.

with nine other photographs. Dkt. 105, Ex. 10 at 41-42.

Bernard, also as noted, testified that he saw a picture of

Schand “with chains,” identified as Exhibit 2A, which was

one of the Polaroids. Id. at 188. Hosten’s testimony at

the suppression hearing also suggested that one of the two

photos he selected identifying Schand as the shooter showed

his “whole body” with “gold rope, thick gold rope” --

meaning gold chains -- which indicated that it was one of

the Polaroids. Id. at 158. Although the record does not

appear to contain any written findings or conclusions, it

appears evident that Judge Urbano denied the motion to

suppress.

Plaintiff’s trial proceeded from November 9 to November

20, 1987, before Superior Court Judge John F. Murphy, Jr.

The juveniles Dixon and Chase testified to seeing Plaintiff

at the Pizza King shortly before the shooting. Charles

Stokes identified Plaintiff as the man with the gun who

robbed him; Cooke identified Plaintiff as the man who shot

him and robbed Charles Stokes; David Stokes identified

Plaintiff also as his brother’s robber, the man with the

gun; Hosten and Bernard also positively identified

Plaintiff as the shooter. Defs’ SOF at ¶78, Dkt. 93.

Plaintiff does not dispute the substance of the testimony

of these witnesses, but he does point out that three of

them, Cooke, Stokes, and Hosten, eventually recanted their

testimony. Dixon, Chase, Darko, and Bernard have never

recanted their testimony, but all offered testimony or

other evidence suggesting that they viewed Polaroids during

the identification process.

Plaintiff presented an alibi defense that he was never

in Springfield on September 2, 1986, the date of the

murder, but was in Hartford. He had a dental procedure in

the morning, spent the day at his sister's apartment, and

picked up his girlfriend (now wife), Plaintiff Mia Schand,

from her job at a beauty salon at around eleven thirty p.m.

Plaintiff arrived home around twelve thirty a.m. on

September 3. In addition to Mia Schand, witnesses for

Plaintiff were Thomas Accierno, Plaintiff's dentist; Pearl

Andrado, Mia Schand's manager at the salon; Janice Parker,

a bartender where Plaintiff and Mia Schand stopped that

evening; and Lorrie Williams-Bey, Mia Schand's sister. Id.

at ¶80.

On November 20, 1987, the jury found Plaintiff guilty

of the murder of Ms. Seymour, and Judge Murphy sentenced

him to life in prison.

E. State Motion for a New Trial in 1991 and Federal

Habeas Petition Pursuant to 28 U.S.C. § 2254

On July 7, 1989, Charles Stokes recanted his

identification of Plaintiff in a handwritten affidavit.

Defs’ SOF, Dkt. 93, Ex. 27. Based partly on this newly

discovered evidence, as well as claims of prosecutorial

misconduct and ineffective assistance of counsel, on

September 12, 1991, Plaintiff (represented by new counsel)

filed a motion for a new trial. In his allegations of

prosecutorial misconduct, Plaintiff argued that the

Commonwealth had withheld exculpatory evidence, namely the

second page of the doctored Scammons Report. Plaintiff

also argued that the Commonwealth had withheld evidence

obtained from the Hartford police, the “Hartford material,”

tending to show that Weaver, rather than Plaintiff, was the

assailant during the After Five Lounge murder and robbery.

Plaintiff pointed to two Hartford reports describing

Weaver, who was similar in appearance to Plaintiff, who

owned a grey van like the one seen by witnesses on

September 2, 1986, and who had reportedly been heard

bragging about the After Five Lounge shooting. Plaintiff

also argued that the Commonwealth had failed to turn over

impeachment evidence in the form of promises made to

witnesses Charles Stokes, Michael Bernard, and David Stokes

in exchange for their testimony. Defs’ SOF, Dkt. 93 at

20, Ex. 12.

In September 16, 1992, Judge Murphy, Plaintiff’s trial

judge, issued a 27-page memorandum with detailed findings

of fact and conclusions of law, denying the motion for new

trial. In his memorandum, Judge Murphy addressed claims

relating to the Scammons Report and the Hartford material.

He found with regard to all of these allegedly withheld

documents that they either contained no exculpatory

information or that their contents were already known to

Plaintiff's defense counsel through other means. Regarding

the Scammons Report, he ruled that Stokes' testimony before

the Grand Jury in December 1986 contained substantially the

same information as that found on the possibly concealed

page 2 of the Scammons Report. Defs’ SOF, Dkt. 93, Ex. 13

at 673-674. Judge Murphy rejected claims that impeachment

evidence regarding promises, rewards, and inducements had

been withheld, and he concluded that Charles Stokes'

recantation was a complete fabrication designed to

discredit the Assistant District Attorney who prosecuted

Schand and whom Stokes had a grudge against. Defs’ SOF,

Dkt. 93, Ex. 12 at 19-20. On July 18, 1995, Justice John

Greaney of the Massachusetts Supreme Judicial Court issued

a comprehensive opinion affirming Judge Murphy’s rulings in

every particular. Defs’ SOF, Dkt. 93, Ex. 31, Commonwealth

v. Schand, 420 Mass. 783 (1995).

The opinions of Judge Murphy and Justice Greaney

discuss the Scammons Report and the Hartford material at

length, concluding that defense counsel was aware of the

substance of this evidence and, in any event, suffered no

prejudice by not receiving it. The 1991 motion for new

trial, however, does not appear to have raised the issue of

the Polaroids, the lineup, or the improperly suggestive

identification procedures generally. No mention is made of

these issues in either opinion.

On May 24, 1996, Plaintiff filed a petition for writ of

habeas corpus in the United States District Court for the

District of Massachusetts, offering essentially the same

arguments contained in his motion for new trial. On May 7,

1997, in a 22-page opinion, U.S. District Judge Frank H.

Freedman denied the petition. Schand v. Dubois, Civ.

Action 96-30088-FHF (D. Mass. May 7, 1997). Plaintiff’s

motion for a certificate of appealability was denied by

Judge Freedman on June 23, 1997; the Court of Appeals

affirmed this ruling on December 15, 1997. Again, in these

federal collateral proceedings, the issues of the Scammons

Report and the allegedly withheld Hartford material were

thoroughly explored, but no mention was made of the

Polaroid photos, the lineup, or any supposedly improper

identification procedures.

F. Motion for New Trial in 2013

On May 6, 2013, Plaintiff filed a second motion for new

trial, based on further recantations and newly discovered

evidence. At this time, Anthony Cooke stated that his

identification of Plaintiff as the shooter had been false.

While no Defendant pressured him to identify Schand, he was

advised by unspecified “people,” not police officers, who

told him, “This will help you,” so he testified falsely

that Plaintiff was the man who shot him. Dkt. 116, Ex. 50

at 66-67. In 2006, Michael Hosten stated in the affidavit

already described that police showed him a Polaroid of

Plaintiff, and he felt it was obvious, first, that they

wanted him to identify Plaintiff as Seymour’s murderer,

and, second, that doing so would result in favorable

treatment for him. Based on this, he said, he falsely

identified Schand. In addition to the new evidence from

Cooke and Hosten, Charles Stokes continued to assert his

1989 recantation.

A key additional factor was that investigators from

Centurion Ministries, a resource center assisting

wrongfully convicted prisoners, located three individuals

who said they had been present at the After Five Lounge

shooting and who now came forward for the first time to

state that Plaintiff was not present that night. Those

individuals were Tracy Fisher, Randy Weaver, and Martin

Smith. Defs’ SOF at ¶132, Dkt. 93.

At the hearing on the motion for new trial, Fisher,

Weaver, and Smith testified that they knew Plaintiff in

September 1986, that they were present at the After Five

shooting, and that Plaintiff was not there. Pls’ SOF at

¶227, Dkt. 106. Mr. Cooke also testified, contrary to what

he said at the 1987 trial, that he did not know who shot

him, and that he never saw Schand in the area of the After

Five Lounge on September 2, 1986. Defs’ SOF, Dkt. 93, Ex.

50 at 37.

On October 4, 2013, the Hampden County District

Attorney filed a brief indicating that the Commonwealth

would not oppose the motion for new trial. Defs’ SOF at

¶135, Dkt. 93. Based on this, on October 15, 2013,

Massachusetts Superior Court Judge C. Jeffrey Kinder issued

an amended order allowing Plaintiff's motion for a new

trial. Judge Kinder stated in his order that the new

testimony from Fisher, Weaver, and Smith coupled with the

recantation of Cooke carried “a measure of strength in

support of [Schand’s] position, such that justice may not

have been done.” Defs’ SOF, Dkt. 93, Ex. 36. Judge Kinder

further noted that the Commonwealth “did not agree with the

defendant’s claims of actual innocence and prosecutorial

misconduct” and that these were issues which the judge “did

not and need not decide.” Id. On October 16, 2013, the

Commonwealth issued a nolle prosequi, stating that “[t]he

time elapsed since the date of offense, availability of

witnesses and the continued examination of newly discovered

evidence do not allow for the continued prosecution of the

case at this time.” Defs’ SOF, Dkt. 93, Ex. 37.

G. Current Complaint

On August 20, 2015, Plaintiffs Mark Schand, his wife

Mia Schand, and their sons Mark, Jr., Quinton, and Kiele

filed a complaint in eighteen counts, bringing federal and

state claims arising from Plaintiff Mark Schand’s

conviction for the Seymour murder.    The remaining defendants

are the City of Springfield and former Springfield police

officers Elmer McMahon, Leonard Scammons, Raymond P. Muise,

Michael Reid, and Joseph Assad. The summary of defendants

now omits McNulty, Fleury, Hampden County, Hartford and the

Hartford supervisors, since none of these defendants

currently remain in the case. Dkts. 41 & 49. In addition,

the "Doe" defendants are omitted since, as noted earlier,

Plaintiffs have dropped them. This adjustment reduces the

cohort of Defendants in some of the remaining counts and

eliminates Count VII (against “Supervisory Doe

Defendants”), Count IX (against Hampden County), and Count

X (against the City of Hartford). Accordingly, the

remaining counts are:

 Count I, brought by Plaintiff Mark Schand against

Defendants Reid, Muise, McMahon, and Scammons (but not

Assad), asserting a claim under 42 U.S.C. § 1983 for

unduly suggestive, biased, and otherwise improper

identification procedures in violation of the

Fourteenth Amendment;

 Count II, brought by Plaintiff Mark Schand against

Defendant McMahon, asserting a claim under § 1983 for

suppression of exculpatory evidence in violation of the

Fourteenth Amendment;

 Count III, brought by Plaintiff Mark Schand against

Defendant McMahon, asserting a claim under § 1983 for

fabrication of evidence in violation of the Fourteenth

Amendment;

 Count IV, brought by Plaintiff Mark Schand against all

Individual Defendants, Reid, Muise, McMahon, Scammons,

and Assad, asserting a claim under § 1983 for malicious

prosecution in violation of the Fourth Amendment;

 Count V, brought by Plaintiff Mark Schand against all

Individual Defendants, asserting a claim under § 1983

for failure to intercede;

 Count VI, brought by Plaintiff Mark Schand against all

Individual Defendants, asserting a claim under § 1983

for conspiracy to violate constitutional rights;

 Count VIII, brought by Plaintiff Mark Schand against

the City of Springfield, asserting a § 1983 Monell

claim;

 Count XI, brought by Plaintiff Mark Schand against the

Individual Defendants, asserting a state law claim for

malicious prosecution;

 Count XII, brought by Plaintiff Mark Schand against the

Individual Defendants, asserting a state law claim for

common law conspiracy;

 Count XIII, brought by Plaintiff Mark Schand against

the Individual Defendants and the City of Springfield,

asserting a state law claim for negligent

investigation;

 Count XIV, brought by Plaintiff Mark Schand against the

City of Springfield, asserting a state law claim for

negligent training and supervision;

 Count XV, brought by all Plaintiffs against the

Individual Defendants, asserting a state law claim for

intentional infliction of emotional distress;

 Count XVI, brought by Plaintiffs Mark Schand and Mia

Schand against the Individual Defendants, asserting a

state law claim for loss of consortium;

 Count XVII, brought by Plaintiffs Mark Schand, Jr.,

Quinton Schand, and Kiele Schand against the Individual

Defendants, asserting a state law claim for loss of

parental consortium; and

 Count XVIII, brought against the City of Springfield,

asserting a state law claim of respondeat superior.

As noted above, Defendants have filed two motions for

summary judgment (one by Defendant McMahon and one by the

remaining Defendants jointly) and a motion to strike. The

discussion below will begin with the motion to strike, Dkt.

119, and then move on to the two motions for summary

judgment, Dkts. 86 and 92.

III. DISCUSSION

A. Motion to Strike, Dkt. 119

Michael Hosten was a key identification witness for the

Commonwealth both at the July 1987 suppression hearing and

at Plaintiff’s November 1987 trial. Hosten was present at

the botched drug deal outside the After Five Lounge in a

good position to see the shooter, and he repeatedly

identified Mark Schand as the man with the gun.

In the summer of 2005, almost eighteen years after the

trial, one of Plaintiff’s attorneys approached Hosten while

he was an inmate at a correctional facility in Shirley,

Massachusetts. Hosten apparently imparted some information

to this attorney helpful to Plaintiff. See Dkt. 120, Ex. C

(letter thanking Hosten for agreeing to “do the right thing

at this point”). In May of 2006, a second attorney for

Plaintiff visited Hosten, who was still incarcerated, and

later drafted an affidavit purportedly embodying what

Hosten told him at that time. Id., Ex. D. This attorney

then sent the draft affidavit to Hosten with an envelope

containing a return address. Later, this same attorney

received the envelope back with the affidavit enclosed, now

with an unwitnessed signature appearing to be Hosten’s,

dated June 24, 2006. Id. Nineteen days later, on July 13,

2006, Hosten died of complications relating to AIDS. Dkt.

119, Ex. A.

The affidavit contains a description of a meeting

Hosten had after the shooting, in September or October

1986, at the York St. Jail in Springfield, with “Heavy”

(i.e., Charles) Stokes, David Stokes, and Anthony Cooke.

Dkt. 105, Ex. 24 at ¶23. During this conversation, the

four agreed to “help the police identify Vickie’s killer in

exchange for the dismissal of [their] open criminal cases.”

Id. at ¶24. According to the affidavit, on October 30,

1986, unidentified Springfield plainclothes police officers

spoke to Hosten in a room at the Hall of Justice in

Springfield. They told him they had found the man who had

killed Victoria Seymour and threw a single photograph on

the table. The photograph depicted Plaintiff wearing

sunglasses and thick chains, evidence from which a jury

could find that the photo was one of the Polaroids taken of

Plaintiff by the Hartford police. The two officers then

slipped this photo into a group of other photos and told

Hosten to pick out “the guy who [he] had seen standing over

Heavy Stokes outside the After Five on September 2, 1986.”

Id. at ¶27. According to his affidavit, Hosten knew

immediately, but did not tell the officers, that Plaintiff

was not the shooter. Nevertheless, he identified the photo

of Plaintiff anyway, because “[he] got the impression that

if [he] picked [Schand], the police would help [him] in

some way.” Id. at ¶29. Nothing in the record suggests

that either of the unidentified officers gave him any

explicit promise of assistance. Afterward, Hosten

identified Plaintiff as the shooter both at the suppression

hearing and at Plaintiff’s trial. Subsequent to that, he

received favorable treatment on several criminal cases

outstanding against him. Id. at ¶42.

Defendants have moved to strike Hosten’s affidavit. It

is well settled, and the parties agree, that it would be

improper for the court to consider the affidavit in

assessing the pending motions for summary judgment if it

would be inadmissible at trial. Fed. R. Civ. P. 56(c)(2).

It cannot be denied that Plaintiffs will face

significant hurdles getting the affidavit into evidence at

the eventual trial in this case. It was drafted by an

attorney for Plaintiff, and it was not witnessed. It

refers to two Springfield police officers who are not

named. Apart from the circumstantial evidence related to

the contacts with Hosten in 2005 and 2006, the signature on

the affidavit is not authenticated. The affidavit itself

bears a heading suggesting it may have been intended as a

filing in one of three numbered cases pending in the

Hampden County Superior Court, but no other information

regarding any of these cases, if they existed, can be found

in the record. Defendants, of course, have never had an

opportunity to cross-examine Hosten about the averments

contained in the affidavit or the circumstances under which

it was obtained. It obviously contradicts Hosten’s

repeated, sworn testimony.

Assuming that the circumstantial evidence of the

conversations with Hosten, the mailing of the affidavit

with the return envelope to him, and the return of the

affidavit in the envelope supplied to him are enough to

authenticate the unwitnessed signature on the affidavit as

Hosten’s -- a dicey proposition -- the substance of the

document is obviously hearsay and may only be admissible

under one of the recognized exceptions to the basic

evidentiary rule excluding hearsay. Plaintiffs rely on two

provisions of the Federal Rules of Evidence to help them

over this difficulty, Rule 804(b)(3)(A), pertaining to

statements against interest, and Rule 807, the so called

“residual” exception. Neither of these exceptions meshes

terribly well with the circumstances here.

Rule 804(b)(3)(A) supports the admissibility of certain

hearsay statements, where the declarant is unavailable, if

“a reasonable person in the declarant’s position would have

made [the statement] only if the person believed it to be

true because, when made, it . . . had so great a tendency .

. . to expose the declarant to civil or criminal

liability.” Plaintiffs’ arguments suggesting that Hosten

faced criminal liability based on his admitted perjury and

participation in a conspiracy to frame Plaintiff have some

force, but also weaknesses. Hosten signed the affidavit

almost twenty years after the suppression hearing and

trial. Massachusetts law establishes a six-year statute of

limitations for all crimes not specifically exempted.

Mass. Gen. Laws ch. 277, § 63. Neither perjury nor

conspiracy are exempted. Plaintiffs’ speculative argument,

unsupported by any citation to law, that perjury in a

capital case might fall within an exemption to the six-year

limitation is wobbly at best. Moreover, any conspiracy

here would have achieved its goal as of 1987 when Plaintiff

was convicted, far outside the statutory limit.

Plaintiffs’ argument that the conspiracy somehow persisted

until 2013, when Schand was finally released and the

conspiracy was “thwarted,” floats on no authority.5

Plaintiffs’ Rule 807 argument stands on equally spongy

footing. Admissibility under this rule requires that the

statement possess “circumstantial guarantees of

trustworthiness” equal to those anchoring the exceptions

specifically recognized in rule 803 or 804. It is very

hard to see on this record what those equivalent guarantees

might be. Whatever may have motivated Hosten to provide

the 2006 affidavit, whether truthful or false, is now

unknowable.

Based on all this, it is clear that Defendants’ motion

to strike the Hosten affidavit has some traction. The

court will nevertheless deny it without prejudice, for two

reasons. First, in the context of the motion for summary

judgment, its impact does not drive the court’s ruling.

5 Defendants’ suggestion that Hosten’s imminent death might

undermine any argument that he feared civil or criminal

consequences is speculative and has not been considered.

Nothing in the record suggests that Hosten knew he was

close to dying.

The record already contains admissible evidence that, if

believed, would justify a jury in concluding that improper

identification techniques were employed in the Seymour

murder investigation. Hosten’s affidavit is frosting on

the cake in the summary judgment context, even if it may be

rather thick frosting. Second, the trial in this matter

will be overseen by a judge other than the undersigned. It

is preferable to allow the trial judge to determine whether

a voir dire is needed and to make his or her own decision

regarding the admissibility of the Hosten evidence.

B. Motion for Summary Judgment for Defendants Other

Than McMahon, Dkt. 92

This motion offers several theories that, Defendants

argue, support summary judgment on all counts. The

discussion below will be structured to address, first, the

arguments related to two specific defendants, Assad and the

City of Springfield, who are clearly entitled to judgment.

Second, the court will address two specific causes of

action, the § 1983 claim for malicious prosecution and the

§ 1983 claim for failure to intercede, as to which the

individual officers clearly enjoy qualified immunity.

Finally, it will examine the remaining federal and state

law counts as they pertain to Defendants Scammons, Muise,

and Reid.

It is well established that a party is entitled to

summary judgment if “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); see Mass. Mut. Life

Ins. Co. v. DLJ Mortg. Capital, Inc., 251 F.Supp.3d 333,

335 (D. Mass. 2017). "A genuinely disputed issue concerns a

material fact if the fact carries with it the potential to

affect the outcome of the suit under the applicable law."

Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st

Cir. 1993). “On summary judgment, the facts and all

reasonable inferences that might be drawn from them are

viewed in the light most favorable to the non-moving

party." Baggett v. Ashe, 41 F.Supp.3d 113, 117 (D. Mass.

2014) (citing Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369

F.3d 584, 588 (1st Cir. 2004)).

As will be seen, applying the Rule 56 standard to the

factual record now before the court is fatal to some, but

not all, of Plaintiffs’ asserted causes of action.

1. Defendant Assad

Defendant Joseph Assad is entitled to summary judgment

because nothing in the record suggests that he engaged in

conduct that could possibly subject him to liability. He

participated in the preliminary interview of the teenagers,

Dixon and Cooke, and he assisted in the transportation of

the confidential informant, Whitted, to Hartford on

September 17, 1986. Defs’ SOF at ¶¶16 & 19, Dkt. 93. No

impropriety is alleged with regard to either of these

events. Plaintiffs do not dispute Defendants’ assertion

that Assad was not “actively involved” in the After Five

Lounge shooting after September 17, but they insist on

retaining Assad as a defendant based on the theory that a

conspirator can sometimes be liable for the acts of his or

her co-conspirators even after he or she withdraws from a

conspiracy. Pls’ SOF at ¶19, Dkt. 106. This can, of

course, be true in the right circumstances, but the

supposed conspirator must still have done something from

which a jury could infer an intent to further the purposes

of the conspiracy. Here, neither the unremarkable

interview nor the neutral act of assisting to transport a

witness qualifies. Indeed, the absence of allegations

against Assad supporting any actionable conduct makes

Plaintiffs’ counsel’s insistence on retaining him as a

defendant mystifying. This decision is of a piece with

Plaintiffs’ counsel’s very aggressive pleading strategy.

See Dkt. 49 (memorandum and order dismissing claims against

Defendant City of Hartford and “John Doe” Hartford

supervisory personnel based on flatly insufficient support

in the record).

2. City of Springfield

The general requirements for a § 1983 claim against a

municipality such as Springfield are well established. A

municipality cannot be found liable on a theory of

respondeat superior for the acts of its employees that

violate a plaintiff’s constitutional rights. However,

liability may be anchored on violations arising from “a

policy statement, ordinance, regulation, or decision

officially adopted or promulgated by [the municipality’s]

officers.” Monell v. Dep’t of Soc. Serv., 436 U.S. 658,

690 (1978). Where, as here, no official policy has been

identified, a plaintiff may also obtain judgment based on

practices by the municipality “so permanent and well

settled as to constitute a ‘custom or usage’ with the force

of law.” Id. at 691 (quoting Adickes v. S.H. Kress & Co.,

398 U.S. 144, 167-68 (1970)).

A city’s failure to train police officers, as

Plaintiffs contend here, may provide the basis of a § 1983

claim where the failure is so obvious that it amounts to

deliberate indifference on the part of city policymakers

“to the rights of persons with whom the police come into

contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989). In this situation, however, municipal liability

may attach “‘where -- and only where -- a deliberate choice

to follow a course of action is made from among various

alternatives’ by city policymakers.” Id. at 389 (citing

Pembauer v. Cincinnati, 475 U.S. 469, 483-84 (1986)). This

element of conscious or deliberate choice may be found

based on the existence of a custom and practice, such as a

failure to train, that is so “‘so well settled and

widespread that the policymaking officials of the

municipality can be said to have either actual or

constructive knowledge of it yet did nothing to end the

practice.’” Whitfield v. Melendez-Rivera, 431 F.3d 1, 13

(1st Cir. 2005) (quoting Bordanaro v. McLeod, 871 F.2d 1151,

1156 (1st Cir. 1989)).

Judgment for a plaintiff based on deliberate

indifference expressed through a conscious policy choice

may, of course, only be the basis of an award of damages

“if it actually causes injury.” City of Canton, Ohio, 489

U.S. at 390. On the issue of causation, the Supreme Court,

and the First Circuit, have repeatedly emphasized that a

municipal policy may ground liability only where it is the

“moving force” behind the alleged constitutional injury,

Id. at 389; Haley v. City of Boston, 657 F.3d 39, 51 (1st

Cir. 2011).

The existence of the unconstitutional custom or usage,

and the actual or constructive notice of it, may be

demonstrated by evidence of a pattern of past violations.

Where this pattern evidence exists, the burden of

demonstrating the existence of the unconstitutional custom

or usage may not be excessively onerous. See, e.g.,

Hutchins v. McKay, 285 F.Supp.3d 420, 428-29 (D. Mass.

2018) (denying summary judgment on a Monell claim against

the City of Springfield); Cox v. Murphy, Civ. No. 12-11817,

2016 WL 4009978, at *10-11 (D. Mass. Feb. 12, 2016) (ruling

the same against the City of Boston).

In the case of a failure-to-train claim, the

requirements of proof are rather stringent. To ground

liability, “a training program must be quite deficient in

order for the deliberate indifference standard to be met:

the fact that training is imperfect or not in the precise

form a plaintiff would prefer is insufficient to make such

a showing.” Young v. City of Providence, 404 F.3d 4, 27

(1st Cir. 2005). Moreover, as noted above, the Court of

Appeals has recently emphasized that “[i]t is not enough to

show that the Town’s training regimen was faulty; [the

plaintiff] must also show that the Town knew or had reason

to believe that such a regimen had unconstitutional

effects.” Gray v. Cummings, 917 F.3d 1, 14 (1st Cir.

2019). The way to do this, the court said, is to offer

“evidence of past violations sufficient to put the Town on

notice of such effects.” Id.

Plaintiffs’ suggestion that Gray v. Cummings overlooked

the Supreme Court’s decision in City of Canton, Ohio v.

Harris, 489 U.S. 378 (1989), is unpersuasive. Canton

addressed the nature and quantum of evidence needed to

demonstrate the existence of a constitutionally deficient

training regimen. The Court noted, as Plaintiffs point

out, that in certain cases “the need for more or different

training [may be] so obvious” that policymakers may be

found to be indifferent to the need, so that the failure to

train “may fairly be said to represent a policy for which

the city is responsible.” Id. at 390. Gray v. Cummings

appears to address a different question from the one being

discussed in Canton, specifically the requirement that

evidence of past incidents put the municipality on notice

that its policy was actually having “unconstitutional

effects.” As the Hutchins and Key cases make clear, past

pattern evidence of this sort will generally be enough to

carry a municipal liability claim beyond summary judgment

to trial. Here, the record contains no such past pattern

evidence.

Against this doctrinal backdrop, several reasons emerge

requiring entry of summary judgment in favor of

Springfield.

As a preliminary matter, First Circuit authority

appears to suggest that the city’s sub-par training regimen

prior to 1986 was not so deficient as “to indicate that the

city was deliberately indifferent to the rights of its

citizens.” Whitfield, 431 F.3d at 12. In DiRico v. City

of Quincy, 404 F.3d 464, 469 (1st Cir. 2005), the First

Circuit held that even if the training regimen was

“wanting,” the level of deficiency was not enough to

demonstrate deliberate indifference. Id. at 469. DiRico

cited Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989),

which held that “four hours of training, without more, does

not amount to a ‘conscious’ policy to train inadequately.”

Id. at 382. Here, all Defendant officers testified that

they received training significantly above this minimal

level. Given this, the city’s training regimen does not

appear to have dropped to a level of deficiency adequate to

support a jury verdict for Plaintiffs on their failure-to-

train claim, as a constitutional matter.

The fudge phrase “does not appear” is deliberate. If

the court’s ruling depended entirely on the adequacy of the

training provided to the officers prior to 1986, Reiter’s

report would make the decision on the failure-to-train

claim close, and the fairer and more prudent course might

well be to permit this issue to go to the jury. However,

two more powerful considerations make allowance of summary

judgment for the city on this point inevitable.

First, assuming a sufficiently pronounced failure by

Springfield prior to 1986 to properly train the Defendant

officers, nothing in the record suggests that this

dereliction was the “moving force” behind any

constitutional violation suffered by Plaintiff. The record

is clear that Defendant officers generally knew how to

conduct proper identification procedures, including photo

arrays and lineups. If Plaintiffs’ evidence is accepted,

Defendant officers just deliberately twisted those

procedures to frame Mark Schand. Defendant Muise stated

that he did not mix a Polaroid of Plaintiff into any photo

array of mugshots he showed potential witnesses, because he

knew -- presumably from his training and experience, or

quite possibly just from common sense -- that such a

practice would be improperly suggestive. If he, or the

other officers, used the Polaroids improperly (and Muise

lied about it), then the problem was that they were

deliberately engaging in an unprofessional act in order to

obtain Plaintiff’s conviction. Poor training had nothing

to do with it.

The situation is similar to the one addressed by Judge

Frank Coffin in Santiago. Addressing a § 1983 claim for

Springfield’s failure to train police officers as of the

year 1983, he found the record insufficient because it did

not “support an inference that it was a lack of awareness

of citizen constitutional rights that was the cause of the

deprivation.” 891 F.2d at 382 (emphasis in original).

Given this, the record in that case did not “sufficiently

implicate the [failure-to-train] policy as the ‘moving

force [behind] the constitutional violation.’” Id.

(quoting Monell, 436 U.S. at 694).

The crudeness of the police tactic alleged in this

case, accepting Plaintiffs’ evidence, undercuts their claim

that it was poor training that drove the constitutional

violation. A training program was not necessary to inform

a police officer that showing a witness a color Polaroid,

telling him that the subject had been arrested for the

murder, inserting the color Polaroid into an array of

black-and-white mugshots, and then telling the witness to

choose the person he saw with the gun (as the Hosten

affidavit describes) is improperly suggestive. No

reasonable jury could conclude that this conduct was driven

by poor training. It was simply straightforward police

misconduct.

The reaction of at least three of the key

identification witnesses to the police tactics corroborates

this point. Charles Stokes, Cooke, and Hosten were not

influenced by any improper identification procedures. They

knew Schand was not the shooter immediately. Accepting

Plaintiffs’ evidence, a jury could only conclude that these

witnesses just lied once they knew, or thought they knew,

what the officers wanted. Their minds were not tainted.

No deficient training played any part -- certainly nothing

approaching a “moving force” -- in their intentional

perjury.

The final, and perhaps strongest, argument supporting

summary judgment in favor of Springfield is the absence of

any evidence of a pattern of police misconduct prior to

1986 that would put the city on notice of some significant

risk that, driven by the inadequate training,

constitutional violations would occur. As the First

Circuit’s Gray decision emphasizes, on this point expert

testimony regarding defects in the training regimen is not

enough. Actual or constructive notice through a past

history of constitutional violations is required.

Plaintiffs’ argument that their constitutional claims

go beyond failure to train does not help. First, the

opposition to Defendants’ motion for summary judgment makes

it clear that failure to train is the heart of Plaintiffs’

Monell claim. Second, even if some of Plaintiffs’ claims

fell into some other analytical pigeon hole, the

requirement for prior pattern evidence would be the same

for all, and none is to be found on the record.

In summary, the evidence in the record that the

deficiencies in Springfield’s police training regimen were

sufficiently extreme to support a finding of deliberate

indifference on the part of the city’s policymakers is

marginal at best and probably insufficient. More

importantly, the evidence would not support a jury in

concluding that the city’s failure to train -- as distinct

from the intentional malfeasance of the officers or the

willingness of key witnesses to deliberately lie -- was the

“moving force” behind any constitutional violation suffered

by Plaintiff. Finally, the record contains no evidence of

any pattern leading up to 1986 that would give the city

notice that its training or policy inadequacies were

generating a risk that its citizens would suffer violations

of their constitutional rights.

For these reasons, Defendants’ motion for summary

judgment on Count VIII will be allowed.

3. Qualified Immunity: Counts IV and V

Defendant officers argue that they are protected from

liability under at least two of Plaintiffs’ § 1983 theories

-- Count IV asserting malicious prosecution and Count V

asserting failure to intercede -- by the doctrine of

qualified immunity. It is well established that public

officials, including police officers, may not be found

liable for civil damage claims under § 1983 unless their

conduct violates “clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The analytical architecture shaping the court’s

inquiry into a claim of qualified immunity is well laid out

in this circuit. The court examines, first, whether the

record makes out a violation of a constitutional right and,

second, whether that right was “clearly established” at the

time of a defendant’s alleged violation. Maldonado v.

Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). In

approaching the second portion of the analysis, the court

must focus rather carefully on the specific facts of the

case and probe “whether the state of the law at the time of

the alleged violation gave the defendant fair warning that

his particular conduct was unconstitutional.” Id. The

Supreme Court has recently emphasized the importance of

this element of the inquiry, stating that “the clearly

established right must be defined with specificity.” City

of Escondito, Cal. v. Emmons, __ U.S. __, 139 S. Ct. 500,

503 (2019) (per curiam). Trial courts in weighing the

question of qualified immunity should not “define clearly

established law at a high level of generality.” Id.

(quoting Kisela v. Hughes, 585 U.S. __, 138 S. Ct. 1148,

1152 (2018) (per curiam)).

Application of the qualified immunity doctrine to the

record of this case is, as Defendants argue, fatal to

Plaintiffs’ § 1983 claims for malicious prosecution and

failure to intercede.

The First Circuit has noted that, at least prior to

1994, the law was not clearly established that a claim

based upon malicious prosecution, anchored (as here) on the

Fourth Amendment, could be asserted via § 1983. In that

year, in Albright v. Oliver, 510 U.S. 266, 274 (1994), the

Court, in dicta, suggested that the Fourth Amendment might

permit assertion of such a claim. See Hernandez-Cuevas v.

Taylor, 723 F.3d 91, 98-99 (1st Cir. 2013) (involving the

alleged use of an improperly suggestive photo array). As

late as 2003, the First Circuit observed that it was “an

open question whether the Constitution permits the

assertion of a section 1983 claim for malicious prosecution

on the basis of an alleged Fourth Amendment violation.”

Rodriguez-Mateo v. Fuentes-Agostini, 66 Fed. App’x 212, 214

(1st Cir. 2003) (quoting Nieves v. McSweeney, 241 F.3d 46,

54 (1st Cir. 2001)). The same point had been made in 1989

in Santiago, which held that “there was no clearly

established constitutional counterpart to an action for

malicious prosecution” as of 1989. 891 F.2d at 388. See

also Echavarria v. Roach, Civ. No. 16-11118, 2017 WL

3928270, at *8 (D. Mass. Sept. 7, 2017). But see, Cosenza

v. City of Worcester, 355 F.Supp.3d 81, 97-98 (D. Mass.

2019). Given the fact that, as of 1986, the law did not

clearly establish that malicious prosecution could form the

basis of a § 1983 claim, Defendants are entitled to summary

judgment based on qualified immunity on Count IV.

The analysis of Count V, the § 1983 claim for failure

to intercede, is equally straightforward. This court

agrees with the recent decisions of two judges of this

district that the duty to intercede, in a context not

involving allegations of excessive force, is not -- even as

of this date -- sufficiently clearly established to deprive

Defendants of the protection of qualified immunity.

Cosenza, 355 F.Supp.3d at 100-101; Echavarria, 2017 WL

3928270, at *11. Thus, Defendants are entitled to summary

judgment on Count V.

4. Remaining Federal Counts

a. Count I (Improper Identification Procedures)

Defendants initially based their argument in favor of

summary judgment as to this count on the statute of

limitations. In their reply brief, however, they conceded

that Heck v. Humphrey, 512 U.S. 477 (1994), foreclosed this

contention. In Heck, the Court held that a Ҥ 1983 cause

of action for damages attributable to an unconstitutional

conviction or sentence does not accrue until the conviction

or sentence has been invalidated.” Id. at 489-90. The

parties agree that the applicable limitations period is

three years. The Commonwealth’s nolle prosequi issued on

October 16, 2013; the complaint was filed on August 20,

2015. That ends any statute of limitations argument.

Nor are any other arguments available to Defendants

sufficient to support judgment on this count.

First, Defendants do not enjoy qualified immunity. The

law was clearly established by 1986 that police officers

faced liability for use of deliberately suggestive

identification procedures resulting in a wrongful

conviction. See, e.g., Neil v. Biggers, 409 U.S. 188, 198

(1972); Cosenza, 335 F.Supp.3d at 94-96 (canvassing

decisional law). Moreover, little inquiry is needed into

the narrower question whether Defendants were on notice

that their specific actions violated the constitution.

Defendant Muise stated (while denying that he acted

improperly) that, if he had used a Polaroid mixed with mug

shots, the identification procedure would, in fact, have

been unduly suggestive.

Second, Defendants’ arguments based on collateral

estoppel are unavailing because neither the state court,

nor for that matter the federal court in the subsequent

habeas proceedings, addressed the claim under § 1983 that

Defendants employed improper identification procedures to

obtain Plaintiff’s wrongful conviction. It is well

established that federal courts “must give to state-court

judgments the same preclusive effect as would be given by

the courts of the state from which the judgments emerged.”

Johnson v. Mahoney, 424 F.3d 83, 93 (1st Cir. 2005). In

Massachusetts, the doctrine of issue preclusion requires

that the issue be “actually litigated and determined by a

valid and final judgment” before it can be “conclusive in a

subsequent action between the parties whether on the same

or different claim.” Cosenza, 355 F.Supp.3d at 92 (quoting

Jarosz v. Palmer, 436 Mass. 526, 530 (2002)).

Here, as noted above, the state trial court, the

Massachusetts Supreme Judicial Court, and the federal

habeas proceedings never addressed improperly suggestive

identification procedures. Since this issue was never

actually litigated, Plaintiff is not collaterally estopped

from raising it issue now. See Echavarria, 2017 WL

3928270, at *9-10 (distinguishing between an issue

litigated and one not litigated for purposes of collateral

estoppel). As will be seen below, the decision regarding

the applicability of issue preclusion will be different in

the case of the claims against McMahon based on the

Scammons Report and the Hartford material. Those claims

were thoroughly litigated.

Given that the controlling law manifestly recognizes

the claim set forth in Count I, and the facts of record

would support a verdict in Plaintiffs’ favor, the motion

for summary judgment will be denied on Count I.

b. Counts II (Suppression of Exculpatory

Evidence) and III (Fabrication of Evidence)

These counts, asserting suppression of exculpatory

evidence and fabrication of false evidence are directed

only at Defendant McMahon. His arguments in favor of

summary judgment are addressed below.

c. Counts IV (Malicious Prosecution) and V

(Failure to Intercede)

Summary judgment will enter for Defendants on these two

counts, § 1983 claims for malicious prosecution and failure

to intervene respectively, based on qualified immunity, for

the reasons outlined above.

d. Count VI (Conspiracy)

Summary judgment will be denied on this count. The

elements for a claim of conspiracy to violate Plaintiff’s

civil rights include “an agreement between the parties to

inflict a wrong against or injury upon another, and an

overt act that results in damages.” Estate of Bennett v.

Wainwright, 548 F.3d 155, 178 (1st Cir. 2008). Defendants’

argument that insufficient evidence exists of any agreement

ignores the reasonable inferences that might be drawn by a

jury regarding coordination among Defendants to obtain

Schand’s conviction through improper identification

procedures. The First Circuit has noted that “the

agreement that rests at the heart of a conspiracy is seldom

susceptible of direct proof: more often than not such an

agreement must be inferred from all the circumstances.”

Earle v. Benoit, 850 F.2d 836, 843 (1st Cir. 1988); see

also Santiago, 891 F.2d at 389 (reversing district court’s

directed verdict on conspiracy claim where a reasonable

jury could have found that officers conspired to unlawfully

arrest the plaintiff). Here, viewing the facts in the

light most favorable to Plaintiffs, a jury could infer the

existence of a conspiratorial agreement, overt acts, and

resulting injury to Schand.

Defendants have not specifically raised a statute of

limitations argument in support of summary judgment on this

count. To the extent that they might have offered this

objection, or have done so implicitly, Heck is fatal to any

such contention.

The motion for summary judgment will therefore be

denied as to this count.

e. Count VII (Hartford Doe Defendants)

The court has dismissed this count. See Dkt. 49.

f. Count VIII (Municipal Liability)

Summary judgment will be allowed in favor of the City

of Springfield as to this count for the reasons set forth

in the discussion above.

g. Count IX (Hampden County)

Hampden County does not exist as a suable entity, as

Plaintiffs recognized in dismissing this count voluntarily.

See Dkt. 41.

h. Count X (Monell Claim Against Hartford)

The court has previously dismissed this count. See

Dkt. 49.

5. Remaining State Law Counts

a. Count XI (Common Law Malicious Prosecution)

The parties agree that Defendants cannot claim the

protection of qualified immunity for this common law

malicious prosecution claim, as they have, successfully,

for the claim for a civil rights violation under § 1983

based on malicious prosecution in Count IV. The elements

of this state law claim are: “1) that [Defendants]

initiated a criminal action against him; 2) that the

criminal prosecution ended in [Plaintiff’s] favor; 3) that

there was no probable cause to initiate the criminal

charge; and 4) that [Defendants] acted maliciously.”

Santiago, 891 F.2d at 387. A jury could find that

Defendants, acting in conspiracy or at least jointly,

essentially “initiated” the criminal action. Moreover, the

issuance of the 2013 nolle prosequi evidences a termination

of the action in Plaintiff’s favor. Defendants’ citation

of Wynne v. Rosen, 391 Mass. 797 (1984), does not assist

them on this point. The Wynne standard has been satisfied

in this case, because the District Attorney’s nolle

prosequi was not issued merely “on the basis of a

procedural or technical defect.” Id. at 801. It is true

that the District Attorney’s statement accompanying the

nolle prosequi understandably disclaimed any suggestion

that it constituted an opinion that Schand was innocent or

that prosecutorial misconduct occurred. Even so, it cannot

be said that the dismissal of the charges against Schand

was “inconsistent with innocence.” Id. The requirement of

a favorable termination eliminates any statute of

limitations problem with this claim, since the complaint

was filed well within three years following the District

Attorney’s action.

Defendants’ most powerful argument is that Plaintiffs

cannot bear their burden of showing the absence of probable

cause and the existence of malice, both of which are

required to prevail on a claim for common law malicious

prosecution. The argument has force. It is undisputed

that Defendants sought an arrest warrant for Schand based

upon the eye witness identification of Michael Bernard, who

selected Schand’s mugshot from a photo array at least once,

possibly twice (the record is unclear), and confirmed that

he was one hundred percent certain that Schand was the

gunman. To support probable cause an officer does not need

proof beyond a reasonable doubt. Rather, probable cause

arises “when an officer, acting upon apparently trustworthy

information, reasonably can conclude that a crime has been

. . . committed and that the suspect is implicated in its

commission.” Morelli v. Webster, 552 F.3d 12, 21 (1st Cir.

2009).

Plaintiffs’ response to Defendants’ argument is (in

essence) that, viewing the evidence in the light most

favorable to them, a jury could find that Defendants lacked

probable cause and acted maliciously because they knew at

the time they sought the warrant that Bernard’s

identification was tainted and unreliable as a result of

the improperly suggestive identification procedures they

had intentionally employed. The record support for this is

Bernard’s testimony at the pretrial suppression hearing

that he was shown a photo of Schand “with chains” at the

West Springfield lockup prior to Schand’s arrest. The

inference that Plaintiffs are entitled to ask the jury to

draw is that (a) this photo must have been one of the

Polaroids and (b) it was deliberately displayed to Bernard

in a sufficiently suggestive manner as to contaminate his

identification of Schand and undermine probable cause to

arrest him.

How easy it will be to convince a jury on this point

remains to be seen; the evidence is not overwhelming and,

according to Defendants at least, Bernard is no longer

available to testify. Under Rule 56, however, Plaintiffs

are entitled to make their attempt. For this reason,

Defendants’ motion for summary judgment on this count will

be denied

b. Count XII (Common Law Civil Conspiracy)

Defendants seek summary judgment on this count based

upon the absence of evidentiary support in the record and

upon the three-year statute of limitations. The issue of

the sufficiency of the evidence has already been addressed,

unfavorably to Defendants, in the discussion above relating

to Count VI, the federal civil rights analogy. The more

difficult question is whether this common law claim is

barred by the statute of limitations.

The basics are clear. Massachusetts law establishes a

three-year limitations period for filing tort claims of

this sort. Mass. Gen. Laws ch. 260, § 2A. The limitations

period starts to run when a plaintiff “knows, or reasonably

should have known” of an injury caused by defendant’s

conduct. Doe v. Harbor Schs., Inc., 446 Mass. 245, 246

(2006) (citations omitted). The complaint was filed on

August 20, 2015. Schand clearly knew, or should have

known, that he had been injured by the conspiratorial

activity of Defendants, long before August 20, 2012. At

the latest, he received more than adequate notice of his

injury and its cause by 1992, during the proceedings

connected with his first motion for a new trial.

The question before the court, then, is whether

Massachusetts courts currently recognize, or if presented

with the issue would recognize, a state version of the Heck

rule that would toll the statute of limitations for common

law tort claims until a plaintiff’s release from prison.

The quandary is obvious. On the one hand, placing the

responsibility to file a lawsuit upon a prisoner who is

subject to an apparently lawful conviction and is still

under lock and key seems both grossly unfair and

impractical. On the other hand, this case offers a good

example of the burden placed on defendants at having to

defend an emotionally charged lawsuit decades after the

events that underlie it, with all the problems of lost

documents, faded memories, and unavailable or deceased

witnesses.

Ironically, as this memorandum is being drafted, the

Supreme Court is facing this very issue in a slightly

different context. On April 17, 2019, the Court heard

argument in the case of McDonough v. Smith, No. 18-485, to

address a circuit split on when the statute of limitations

begins to run on a claim that a prosecutor fabricated

evidence. Is it when the plaintiff became aware of the

fabrication (i.e., while actively being tried or in

prison), or when the prosecution is ultimately resolved the

plaintiff’s favor? See McDonough v. Smith, 898 F.3d 259

(2nd Cir. 2018), cert. granted, 139 S. Ct. 915 (2019). The

Second Circuit found that the limitations period began to

run when the plaintiff had reason to know of his injury --

as early as during pretrial proceedings -- and not when the

prosecution ultimately terminated in his favor. Id. at

266. In making this ruling, the Second Circuit

acknowledged that three other circuits had found that the

statute accrued only upon the termination of criminal

proceedings. Id. at 267. It is anyone’s guess where the

Supreme Court will come down.

In this case, although the limitations issue is not

simple, a few guideposts seem to mark a path to a

defensible resolution. First, Plaintiffs have not pointed

to any state authority that suggests that Massachusetts

courts would adopt a Heck-type rule to expand the three-

year limitation period for common law tort actions where

the plaintiff is on trial or in prison. The court’s own

research has failed to unearth any such authority. Second,

it is a bedrock principle of federalism that United States

district court judges, in applying state law, do not

formulate rules based on their own sense of what might be

wise, but rather try “to ascertain, as best [they] can, the

rule that the state’s highest tribunal would likely

follow.” Kotler v. Am. Tobacco Co., 926 F.2d 1217, 1224

(1st Cir. 1990) (citations omitted), vacated on other

grounds, 505 U.S. 1215 (1992). When predicting state law,

a federal trial court should not precipitously “blaze new

and unprecedented jurisprudential trails.” Id.

Here, a rule crafting a Heck-type exception to the

well-established Massachusetts rule regarding the statute

of limitations, specifically covering common law claims

brought by plaintiffs alleging wrongful convictions, seems

like an unprecedented overstep. If a change like this in

fundamental state law is to happen, that change should come

from the Commonwealth’s highest court. For this reason,

the court will allow Defendants’ motion for summary

judgment on Count XII. As will be seen, this conclusion

will have ramifications for some of Plaintiffs’ other

common law claims.

Two considerations in this admittedly uncertain legal

environment offer some consolation.

First, Plaintiffs will still have their § 1983 claims

for unduly suggestive identification procedures in Count I

and for conspiracy in Count VI, as well as the claim for

common law malicious prosecution in Count XI. These causes

of action, though not entirely congruent, will offer

avenues for recovery if Plaintiffs prevail.

Second, perhaps recognizing the legal quandary posed by

the statute of limitations issue in this context, the

Commonwealth of Massachusetts has enacted a program for

compensating victims of wrongful conviction outside the

arena of traditional litigation. Mass. Gen. Laws ch. 258D.

Plaintiff may qualify for some relief under that statute.

c. Count XIII (Common Law Negligence)

The court will allow Defendants’ motion for summary

judgement as to this count for two reasons. To the extent

that it is directed at the individual Defendants, they are

protected by the Massachusetts Tort Claims Act (“MTCA”),

Mass. Gen. Laws ch. 258. The MTCA bars negligence actions

against public employees and permits them to go forward

only against the public employer pursuant to a carefully

outlined procedure. See Parker v. Chief Justice for Admin.

& Mgmt. of the Trial Court, 67 Mass. App. Ct. 174, 178

(2006).

To the extent that this count is directed at the City

of Springfield, the presentment letter required under the

MTCA was sent far too late. With regard to this subspecies

of the statute of limitations, there is no doubt. The MTCA

requires written presentment of a claim no later than two

years after the accrual date. In this case, Plaintiffs’

letter was dated December 9, 2014. Dkt. 1, Ex. 1. For the

reasons set forth previously, this was many years outside

the two-year limitation period. The First Circuit has

noted that while the Supreme Judicial Court has sometimes

tolled the larger three-year limitations period, it has

“held that a plaintiff’s inability to bring a suit does not

toll the running of the presentment period.” Haley v. City

of Boston, 657 F.3d 39, 54 (1st Cir. 2011). As Judge Bruce

Selya noted, “an impediment to bringing suit does not

necessarily denote an inability to give notice, and a

municipality should not be deprived of its right to conduct

a timely investigation and build an effective defense where

notice is feasible.” Id. at 55.

Given the MTCA bar as to the individual defendants and

the impact of the presentment rule as to the city, summary

judgment must be granted on this count.

d. Count XIV (Negligent Training)

Summary judgment will be allowed as to this count, for

the reasons stated above, based on the failure to make

timely presentment under the MTCA.

e. Counts XV through XVII

These counts offer claims for common law intentional

infliction of emotional distress, for loss of spousal

consortium, and for loss of consortium by Plaintiff’s three

children. Summary judgment must be granted as to all these

claims based on the statute of limitations, for the reasons

set forth in connection with the discussion of Count XII

above.

f. Count XVIII (Respondeat Superior)

This count is simply a re-casting of Plaintiffs’

negligence claims and another example of counsel’s kitchen-

sink approach to pleading. It is barred, as with the other

negligence counts against the City of Springfield, based on

the failure to make a timely presentment under the MTCA.

C. Motion for Summary Judgment as to Defendant

McMahon, Dkt. 86

1. Count I (Improper Identification Procedures)

Since it is undisputed that McMahon had no role in

presenting the supposedly suggestive photo arrays to the

witnesses, Plaintiffs must find support for this claim

against McMahon in their allegations of misconduct by him

in the composition of the December 15, 1986 lineup he

organized for the witnesses Dixon, Chase, Charles Stokes

and Gadson. All the generic defenses to this count --

statute of limitations, qualified immunity, and collateral

estoppel -- have been addressed above, in the discussion of

this same count as to the other individual Defendants and

found wanting. Heck is fatal to the statute of limitations

defense; Defendant does not enjoy qualified immunity, since

the constitutional prohibition against suggestive

identification procedures was clearly established by 1986;

collateral estoppel does not apply because the issue of

identification procedures was never actually litigated.

Defendant’s best defense on this count is the absence

of facts sufficient to support a verdict for Plaintiffs.

On this, the question is close. Defense counsel was

present at the lineup and did not object. His request that

the lineup participants wear hats was honored. Only the

two teenagers, Dixon and Chase, identified Schand from the

lineup. The photograph of the lineup, at least in the

undersigned’s opinion, offers no overpowering evidence of

manipulation.

In the end, however, the fairness of the lineup seems a

quintessential jury question. At least, it is premature to

judge the issue at the summary judgment stage. It may be

revisited, at the discretion of the presiding judge, at the

close of Plaintiffs’ case at trial, or, if Plaintiffs

obtain a verdict, on a post-trial motion. For the time

being, Defendant’s motion for summary judgment on this

count will be denied.

2. Counts II (Suppression of Exculpatory Evidence) and

III (Fabrication of Evidence)

These counts are offered against McMahon only and focus

on the failure to provide defense counsel the exculpatory

Hartford material that might have pointed at a different

suspect and the doctored and suppressed Scammons Report.

The court will allow Defendant’s motion for summary

judgment on these counts, for two reasons.

First, re-litigation of the issues raised in the two

counts is barred by collateral estoppel. Plaintiffs argue

repeatedly that the entry of the nolle prosequi entirely

expunged any effects derivable from Schand’s criminal

prosecution. The argument is well formed and appears to be

supported by some out of circuit authority, but it ignores

plainly controlling First Circuit precedent.

Johnson v. Mahoney, 424 F.3d 83 (1st Cir 2005), is

precisely on point. Johnson was convicted in state court

of first-degree murder and appealed his conviction to the

Massachusetts Supreme Judicial Court, contending that the

prosecution failed to provide him exculpatory evidence.

The SJC affirmed his conviction, condemning the police

misconduct but finding that Johnson had suffered no

prejudice flowing from it. Five years into his sentence,

Johnson was released when the prosecutor nolle prossed his

conviction based on new evidence. Johnson sued the

defendant police officers under § 1983 in federal court

based on their misconduct in failing to produce the

exculpatory evidence. The First Circuit held that

Johnson’s claim was barred by collateral estoppel. Id. at

93-94. The court was unmoved by the argument that

collateral estoppel was precluded by the difference between

the civil and prior criminal case, concluding that “issues

decided in criminal prosecutions may preclude their later

relitigation in a civil action.” Id. at 94. Johnson

remains good law. See, e.g., Echavarria, 2017 WL 3928270,

at *9.

The very claims now asserted by Plaintiffs were

addressed extensively by Judge Murphy’s memorandum

regarding Schand’s 1992 motion for new trial, by Justice

Greaney in the SJC opinion affirming Judge Murphy’s

decision, and by Judge Frank Freedman in the subsequent

habeas proceeding in federal court. Plaintiffs are barred

from re-asserting them here. As already noted, the outcome

on the collateral estoppel issue is different for the

claims relating to the lineup, because that issue was never

substantially addressed in the prior litigation.

Defendant McMahon is also entitled to summary judgment

on these two counts because the record simply does not

provide adequate support for them. Even viewing the facts

in the light most favorable to Plaintiffs, no reasonable

jury could conclude that McMahon was responsible for the

failure to turn over the exculpatory Hartford material.

This case is no longer at the dismissal stage, like

Echavarria and Cosenza, where the court was prepared to

give the plaintiffs the opportunity to take discovery to

sort out which defendant did exactly what. This case is

now at the put-up-or-shut-up summary judgment stage, where

Plaintiffs must point to cognizable evidence supporting a

verdict against a particular defendant. No evidence

suggests that McMahon was responsible for whatever did, or

did not, happen to the Hartford material. Similarly, the

fact that the doctored Scammons Report was found in a file

cabinet in his office is insufficient to justify any jury

conclusion that he was responsible either for the whiteout

on the report or for the failure to turn both pages of the

report over. The record is clear that other officers used

the file cabinet and that documents were often removed or

replaced by other parties. As soon as McMahon was informed

of the existence of the document, he placed it into a

sealed envelope and turned it over to investigators. To

repeat, no evidence in any way ties him to the alteration

of the report or to the failure to turn a complete copy

over to the defendant.

For both these reasons, Defendant McMahon’s motion for

summary judgment on Counts II and III will be allowed.

3. Count IV (Malicious Prosecution) and V (Failure to

Intercede)

Defendant McMahon is entitled to summary judgment on

these counts, based on the doctrine of qualified immunity

for the reasons already discussed in relation to the other

individual defendants.

4. Counts VI (§ 1983 Conspiracy) and XI (Common Law

Malicious Prosecution)

The motion for summary judgment on these counts will be

denied for the reasons set forth in connection with these

counts as they relate to the other individual defendants.

5. Counts XII (Common Law Conspiracy); XIII (Negligent

Investigation); Count XV (Intentional Infliction of

Emotional Distress); Count XVI (Loss of Spousal

Consortium); and Count XVII (Loss of Parental

Consortium)

McMahon’s motion for summary judgment will be allowed

as to all these counts for the same reasons set forth

supporting summary judgment for the other individual

defendants, based on the statute of the limitations and the

MTCA.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Strike

(Dkt. 119) is hereby DENIED, without prejudice. The motion

of all Defendants except McMahon for summary judgment (Dkt.

92) is hereb

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