Meyers v. Miranda

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

JOHN J. SMITH, JR., )

)

Plaintiff, ) Civil Action No.

) 17-30078-FDS

v. )

)

THE CITY OF HOLYOKE, )

JAMES PARNELL, CRYSTAL MANZI, )

SAMUEL DEL VALLE, and )

THIAGO A. MIRANDA, )

)

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

SAYLOR, C.J.

This is a civil rights action alleging the use of excessive force during an arrest. After

committing a minor traffic violation, plaintiff John J. Smith, Jr., refused to stop for police

officers attempting to ticket him. Instead, he led them on a high-speed chase for several miles

that ended when officers deployed spike strips to flatten his tires. According to Smith, he was

then pulled out of the car, struck in the head with a gun, beaten, and tasered while unconscious.

According to the police, he refused to obey commands and resisted arrest. Smith alleges that he

received multiple injuries at the hands of the police, including lacerations and broken bones in

his face and ribs.

Smith has brought suit against four of the officers involved in the arrest and the City of

Holyoke, alleging federal claims under 42 U.S.C. § 1983 and various related state-law claims.

The City of Holyoke and Holyoke Police Officers James Parnell, Crystal Manzi, and Samuel Del

Valle have moved for summary judgment on the federal claims, and have moved for dismissal of

the state-law claims should summary judgment be granted.1

It is not disputed that Smith led police on a high-speed chase, putting multiple people at

great risk. But even reckless, dangerous behavior does not give the police carte blanche to do

anything they please once they apprehend a suspect; all use of force must be reasonable and

proportional to the circumstances. And once the suspect is subdued, and not resisting arrest, the

degree of permissible force is substantially reduced.

Because there is substantial evidence (if believed) that the police used excessive force

here, the officers do not enjoy qualified immunity for their actions. Accordingly, and for the

following reasons, defendants’ motion for summary judgment will be granted in part and denied

in part.

I. Background

A. Factual Background

The following facts are as set forth in the record and are undisputed except as noted.

On June 25, 2014, police officers Crystal Manzi and Jabet Lopez were on patrol in a

police cruiser on Elm Street in Holyoke, Massachusetts. (Manzi Dep. 10-11). Elm Street is a

one-way street. (Id. at 12).2 At around 6:00 or 6:15 P.M., they observed John J. Smith, Jr.,

walking out of a building at 173 Elm Street toward his car. (Id. at 12-13). Officer Manzi

thought that he looked “suspicious” because he was “walking very fast,” “as if he was trying to

avoid [the officers].” (Id. at 14). Smith was not carrying anything, he was not walking with

1 Defendant Thiago Miranda, a Massachusetts State Trooper, has not moved for summary judgment.

2 Officer Manzi described the area as a “high gang/drug block” and stated that “there are lots of narcotics

that come in and out of the building and the surrounding buildings.” (Manzi Dep. 12). Smith “denies the area is

‘notorious for illegal drug and gang activity.’” (Pl.’s Response to Def. Statement of Facts ¶ 2).

difficulty, and he did not appear impaired. (Id. at 14, 18). Officer Lopez asked Smith “how are

you doing, what are you doing in this building.” (Id. at 15). Smith responded verbally, although

Officer Manzi does not remember what he said. (Id.). At the point that Smith got into his car to

drive away, he was free to leave and neither of the officers had attempted to stop him. (Id. at

20).

Smith then placed his car in reverse and backed it up Elm Street, against the one-way

flow of traffic, until he reached the next block at the intersection of Elm and Suffolk Street.

(Manzi Dep. 17, 20-21). According to Smith, he reversed his car because the police cruiser was

blocking the street. (Smith Dep. 42). Officer Manzi began to pursue him with the intention of

speaking to him and possibly giving him a traffic citation for driving the wrong way down a one-

way street. (Manzi Dep. 21). Officer James Parnell of the Holyoke Police Department, who was

in a cruiser nearby, received a dispatch about a car driving the wrong way down Elm Street, and

joined the pursuit. (Parnell Dep. 7, 12). Smith turned onto Suffolk Street, a two-way street, and

began driving with the flow of traffic, with Officers Manzi and Parnell behind him in their

cruisers. (Manzi Dep. 17; Parnell Dep. 13). The officers activated their lights. (Parnell Dep. 14).

It is undisputed that Smith was aware that police officers were following him with lights

and/or sirens on, and that he did not stop. (Smith Dep. 165).3 Instead, he led the police officers

through the streets of Holyoke onto Interstate Highway 91. He exited the highway in

Northampton, eventually driving into Westfield. (Parnell Dep. 20, 22, 25). His car reached a

speed of 90 miles per hour on the interstate. (Smith Dep. 166). Massachusetts State Police and

Westfield Police units joined the Holyoke Police units in the pursuit. (Manzi Dep. 29). The

3 According to Smith, he could hear the sirens and was aware that he was being followed by Holyoke

police cruisers, but he could not see the cars or their lights because they were several blocks behind him. (Smith

Dep. 75-76).

entire pursuit lasted between 20 minutes (by Officer Parnell’s estimate) and 45 minutes (by

Smith’s). (Parnell Dep. 25; Smith Dep. 166).

Smith’s specific actions during the pursuit are disputed. At one point, he was stopped at

a red light. According to Officer Parnell, he got out of his cruiser and approached Smith’s car,

giving him verbal commands to shut off the car and show his hands. (Parnell Dep. 16). Smith

accelerated toward Officer Parnell, forcing him to jump out of the way. (Id.). Officers Parnell

and Manzi both interpreted that action as an attempt to hit the officer with his car. (Parnell Dep.

19; Manzi Dep. 24).4 Smith denies that he attempted to hit a police officer with his car, that

Officer Parnell jumped out of the way, or that he could even see any officers, because they

remained several blocks behind him. (Pl.’s Response to Def. Statement of Facts ¶¶ 11-13; Smith

Dep. 75).

Officer Parnell also testified that he observed Smith “almost cause a traffic collision”

with other vehicles when he drove into the breakdown lane and forced other vehicles to stop.

(Parnell Dep. 21-22).5 Smith denies that he almost collided with any vehicles. (Pl.’s Response

to Def. Statement of Facts ¶ 17).

Officers Parnell and Manzi testified that Smith swerved his car toward a cruiser being

driven by Holyoke Police Officer Padilla, which they interpreted as an attempt to hit Padilla’s

car. (Manzi Dep. 27; Parnell Dep. 22-23). Smith’s car did not, however, make contact with the

other car. (Manzi Dep. 27; Parnell Dep. 23). Smith denies that he intentionally swerved at, and

almost struck, the car. (Pl.’s Response to Def. Statement of Facts ¶ 19).

4 According to Officer Manzi’s deposition, she observed the entire interaction. (Manzi Dep. 24). However,

she did not mention the alleged attempt to run over Officer Parnell in her incident report. (Manzi Incident Report;

Pl. Ex. 7). When asked why she did not include it in her incident report, Officer Manzi stated that she was “brand

new” to the force and forgot to include it because “there was a lot going on.” (Manzi Dep. 25).

5 The term “breakdown lane” is used in Massachusetts to describe the paved shoulder of a highway.

The pursuit ended in Westfield. Officers deployed spike strips across the road, which

flattened the tires of Smith’s car and caused it to come to a gradual stop about 300-400 feet away

from the spike strips. (Parnell Dep. 25; Smith Dep. 92-93).6 Smith was wearing his seatbelt and

did not suffer any injuries as a result of hitting the spike strips. (Smith Dep. 93, 106).

The parties disagree about what happened after the car came to a stop. Smith has

submitted a video taken by a Massachusetts State Police helicopter that depicts the 53-second

period immediately following the stop. Unfortunately, the video does not definitively prove or

disprove any party’s account of the events. (Video; Pl. Ex. 1).

The following account is based on the testimony of the officers. Officer Parnell

approached the driver’s side of Smith’s car once it came to a stop. (Parnell Dep. 35). He and

several other officers dragged Smith out of the car and put him on the ground. (Manzi Dep. 33;

Parnell Dep. 40). He was lying face down on the ground with his hands beneath him, ignoring

commands to place his hands behind his back and show his hands. (Parnell Dep. 43; Manzi Dep.

34; Del Valle Dep. 22). According to Trooper Miranda, he was kicking his legs and swinging

his elbows, arms, and fists, such that the officers had difficulty in gaining control of him.

(Miranda Dep. 39-40). Trooper Miranda hit him in the side to “gain compliance control” over

him, but could not remember how many times he hit him. (Id. at 40). Officer Manzi used her

Taser to “drive stun” him three or four times, attempting to get him to stop lying on his hands so

he could be handcuffed. (Manzi Dep. 34, 36-38).7 Officer Del Valle used his Taser to drive stun

him twice, as other officers attempted to pull his arm out from under him. (Del Valle Dep. 30-

6 Smith and Officer Parnell refer to these objects as “stop sticks.” “Stop Stick” is a brand of spike strip,

that is, a spiked device meant to deflate the tires of a car. See STOP STICK, https://www.stopstick.com/products/stop-

stick (last visited Feb. 26, 2020). The generic term “spike strip” will be used to refer to the objects used in this case.

7 In “drive stun” mode, the Taser device is physically pressed against a person’s body. (Del Valle Dep. 24-

25). The purpose of using a Taser is “pain compliance.” (Manzi Dep. 35-36).

31). Officer Parnell physically removed Smith’s right arm from under him, to put it behind his

back so he could be handcuffed. (Parnell Arrest Report 2; Pl. Ex. 2). Again, according to the

officers, all of this occurred while Smith was lying face down on the ground, allegedly

struggling, resisting, and refusing to put his hands behind his back.

Smith disputes that account. According to him, soon after his car stopped, a police dog

came in through his passenger-side window. (Smith Dep. 110). He turned his head toward that

window. At that point, he immediately lost his memory, describing it as “one big black spot.”

(Id. 111-12). Based on the video evidence, Smith alleges that Officer Parnell struck him in the

head with a gun, causing him to lose consciousness. (Compl. ¶¶ 36, 39). The officers then

pulled him out of the car and put him on the ground. (Comp. ¶¶ 42, 44). Because he was

unconscious, he did not struggle, kick, swing his fists, or refuse to yield his arms. (Pl.’s

Response to Def. Statement of Facts ¶¶ 35, 36, 40). Rather, he was limp and not moving.

(Compl. ¶¶ 43, 52). He regained consciousness in the ambulance. (Smith Dep. 112).

The video does not provide definitive answers. It begins by depicting Smith’s car

swerving to a stop on a paved road. (Video; Pl. Ex. 1). At the eight-second mark, seven police

cruisers surround Smith’s car, with two jammed against both sides of his car, and officers begin

to get out of their vehicles. At 10-13 seconds, at least nine police officers converge on Smith’s

car from all directions, some with their weapons drawn and pointed at the car. There are now

nine cruisers at the scene. An officer releases a police dog into the passenger-side window as

Officer Parnell approaches the driver-side window.8 At 13-17 seconds, Officer Parnell ducks so

that he is level with the driver-side window. He then straightens up and hands a large black

8 Officer Parnell identified himself as the person between the driver’s side of Smith’s car and the police

cruiser at the 12-second mark. (Parnell Dep. 35).

object, which could be a gun, to the officer behind him, who walks away with it. At 17-19

seconds, and then in a close-up at 19-22 seconds, Officer Parnell and at least three other officers

pull Smith out of the car by his arms and pin him on the ground. At that point, two officers have

climbed on the roof of Smith’s car. At 27-28 seconds, three officers are on top of Smith, who is

lying on the ground, with three other officers within arm’s length.

Smith contends that the video shows his right arm lying limp above his head. (Pl.’s

Mem. in Supp. of Opp. to Mot. for Summ. J. 9). The video is quite blurry, but it does show

light-colored shapes on the ground where his head and right arm could be; the rest of his body is

obscured by the officers on top of him. At 28-31 seconds, the camera zooms out to show at least

four officers on top of Smith, with ten other officers nearby. There are now eleven police

cruisers at the scene. One can faintly see Smith’s head and what looks like one or two of his

arms on the ground above his head. He is not moving. While immobile, Trooper Miranda

punches him in the side at least four times.

At 32 seconds, the operator of the video camera—for no reason that is apparent in the

record—turns the camera away from the scene of the arrest and focuses on some foliage and the

empty road. That footage lasts seven seconds. At 39 seconds, the camera swings back to the

officers and Smith, whose body is obscured by at least five officers on top of him. The camera

then zooms out and the video ends at 53 seconds.

After he was handcuffed, Smith was transported by ambulance to the Holyoke Medical

Center Emergency Room. (Parnell Arrest Report 2; Pl. Ex. 2). According to Smith, he suffered

lacerations to the head, face, chest, and abdomen; a fracture of the anterior and posterolateral and

medial wall of the left maxillary sinus that extended to the posterolateral left orbital wall;

hemorrhagic fluid in the left maxillary sinus; right-sided pneumothorax caused by trauma; small

contusion and atelectasis of the right lung; three rib fractures; dislodged and broken dentures;

and subcutaneous emphysema. (Compl. ¶¶ 69, 70, 73).

However, Smith failed to include any medical records with his opposition to summary

judgment, and failed even to submit an affidavit setting forth his own understanding of his

injuries. Attached to the complaint were a CT scan of his face and X-rays of his ribs, taken at

Holyoke Medical Center and Baystate Medical Center on June 25 and 26, 2014. (Compl. Ex. 2;

Compl. Ex. 3). Even assuming that the Court can consider those documents, it cannot interpret

them as a radiologist. The evidentiary record as to Smith’s injuries is therefore quite limited. In

any event, it appears to be undisputed that he required transport by ambulance; that a medical

professional made the judgment he should receive a CT scan of his face and an X-ray of his

chest; and that he suffered at least some degree of facial and torso injuries. It is also undisputed

that Smith was not injured at the time his car came to a stop.

Smith was arrested and indicted on charges of driving to endanger, Mass. Gen. Laws ch.

90, § 24; refusal to submit to police officer, Mass. Gen. Laws ch. 90, § 25; leaving the scene of

property damage, Mass. Gen. Laws ch. 90, § 24; and two counts of assault by means of a

dangerous weapon, Mass. Gen. Laws ch. 265, § 15B(b). (Def. Ex. 9). On June 23, 2015, he

pleaded guilty to reckless operation of a motor vehicle, Mass. Gen. Laws ch. 90, § 24(2)(a), and

was sentenced to two years’ incarceration, with the remaining charges dismissed by nolle

prosequi. (Def. Ex. 10).

It is unclear what follow-up measures the Holyoke Police Department took after the

event. Defendants allege, and Smith concedes, that Officers Manzi and Del Valle completed and

submitted “Use of Force” reports concerning their Taser use, and that their supervisors

concluded that the use of force was appropriate under the circumstances. (Def. Statement of

Material Facts ¶ 41; Pl.’s Resp. to Def. Statement of Facts ¶ 41). However, defendants did not

submit any Use of Force Reports as part of the evidentiary record. The complaint alleges that the

City of Holyoke failed to conduct an internal-affairs investigation of Smith’s complaint of

excessive force, even after his counsel filed a notice of presentment under the Massachusetts

Tort Claims Act. (Compl. ¶¶ 86-87). However, there is no mention of an internal-affairs

investigation, or the absence of such an investigation, in any of the affidavits or deposition

excerpts submitted by either party.

The defendant officers appear to have varying levels of familiarity with the relevant

Holyoke Police Department policies governing Taser use and vehicular pursuit. The Holyoke

Police Department has Standard Operating Procedures governing “Use of Force” (including

Taser use), “Vehicular Pursuit,” and “High Speed Pursuit.” (Def. Ex. 11). Officer Manzi stated

that she was not familiar with the Holyoke Police Department’s pursuit policy or Taser policy as

of the date of Smith’s arrest. (Manzi Dep. 22-23, 51). Officer Parnell stated that he was familiar

with the pursuit policy, that such familiarity was mandatory, that he would expect other Holyoke

officers to know the policy, and that he understood the decision to continue the chase was

discretionary. (Parnell Dep. 25-27, 30). Officer Del Valle did not say he was unfamiliar with

the relevant procedures.9

9 Smith alleges that Officer Del Valle testified at his deposition that it was “not his call” to discontinue the

pursuit, and that his statement is inconsistent with the department high-speed pursuit procedure, which provides that

an officer’s decision to join or discontinue a chase is discretionary. (Def. Ex. 11C). Smith quotes page 18 of Del

Valle’s deposition, which was not provided to the Court. (Pl.’s Mem. in Supp. of Opp. to Mot. for Summ. J. 13).

Allegedly, the following exchange occurred:

Q. At any point, Officer, did you consider discontinuing the pursuit?

A. No.

Q. And you realize that pursuant to the policies that is an option, if you exercise your discretion?

A. On that date, in this incident, I don’t think it was my call.

B. Procedural Background

Smith filed this suit on June 22, 2017, against the City of Holyoke, Holyoke Police

Officers James Parnell, Crystal Manzi, and Samuel Del Valle, and Massachusetts State Police

Trooper Thiago O. Miranda. The complaint alleges seven claims: (1) a claim under 42 U.S.C. §

1983 for excessive force in violation of the Fourth and Fourteenth Amendments; (2) a claim

under 42 U.S.C. § 1983 against the City of Holyoke for failure to train, supervise, investigate,

and/or discipline its police officers; (3) a claim under Massachusetts law for assault and battery

and assault and battery with a dangerous weapon; (4) a claim for violation of the Massachusetts

Civil Rights Act, Mass. Gen. Laws ch. 112, § 111M; (5) a claim under Massachusetts law for

intentional infliction of emotional distress; (6) a claim under Massachusetts law for malicious

prosecution against Officer Parnell; and (7) a claim under 42 U.S.C. § 1983 for civil conspiracy

to deprive Smith of his constitutional rights. All claims except the malicious prosecution claim

(Count 6) and the Monell claim (Count 2) are asserted against Officers Parnell, Manzi, Del Valle,

and Trooper Miranda.

Defendants the City of Holyoke and Officers Parnell, Manzi, and Del Valle have moved

for partial summary judgment on the federal-law claims for excessive force (Count 1), the

Monell claim (Count 2), and civil conspiracy (Count 7). They have also moved to dismiss the

state-law claims (Counts 3, 4, 5, and 6) should this Court grant summary judgment on the

federal-law claims. Alternatively, the City of Holyoke has moved to bifurcate the Monell claim

(Count 2) from the individual claims against the defendant police officers (Counts 1, 3-7) and to

stay it until disposition of the individual claims.

II. Legal Standard

The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,

822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).

Summary judgment is appropriate when the moving party shows that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A genuine issue is “one that must be decided at trial because the evidence,

viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve

the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court indulges

all reasonable inferences in favor of the nonmoving party. See O’Connor v. Steeves, 994 F.2d

905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is made,

the adverse party must set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving

party may not simply “rest upon mere allegation or denials of his pleading,” but instead must

“present affirmative evidence.” Id. at 256-57.

III. Analysis

A. Claims Against Individual Officers Under § 1983 (Counts 1 and 7)

Section 1983 is not itself a source of substantive rights, but rather a vehicle for

vindicating substantive rights conferred by the Constitution or laws of the United States that have

been violated by persons acting under color of state law. See Graham v. Connor, 490 U.S. 386,

393-94 (1989); Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Here, it is not disputed that

Officers Del Valle, Manzi, and Parnell were acting under color of state law; the issue is thus

whether their actions deprived Smith of his constitutional rights. The complaint identifies both

the Fourth Amendment and the Fourteenth Amendment as the source of the substantive rights

allegedly infringed upon by the officers. The constitutional claim is based on the use of

excessive force (Counts 1 and 7) and the officers’ alleged conspiracy to hide their misconduct by

filing false reports (Count 7).

1. Qualified Immunity Generally

The individual defendants contend that they are entitled to summary judgment on the

basis of qualified immunity. The doctrine of qualified immunity protects public employees

“from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is determined according to a two-part

test. See Pearson v. Callahan, 555 U.S. 223, 232-33 (2009); Maldonado v. Fontanes, 568 F.3d

263, 268-69 (1st Cir. 2009). The relevant inquiries are (1) whether the facts alleged or shown by

the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was

clearly established at the time of the defendant’s alleged misconduct. Maldonado, 568 F.3d at

268-69.

The question is not whether some right has been clearly established at a highly abstract

level, but “whether, under the circumstances that confronted the official, ‘a reasonable official

would understand that what he is doing violated that right.’” Berthiaume v. Caron, 142 F.3d 12,

15 (1st Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other words,

the question is “whether a reasonable officer, situated similarly to the defendant, would have

understood the challenged act or omission to contravene the discerned constitutional right.”

Burke v. Town of Walpole, 405 F.3d 66, 77 (1st Cir. 2005) (quoting Limone v. Condon, 372 F.3d

39, 44 (1st Cir. 2004)). The qualified-immunity doctrine “leaves ample room for mistaken

judgments.” Berthiaume, 142 F.3d at 15 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Qualified immunity is an affirmative defense, and thus the burden is on the defendants to prove

that they are entitled to its protection. DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir.

2001).

Each of the relevant claims will be analyzed under that framework.

2. Excessive Force

a. Whether a Constitutional Right Was Violated

The first inquiry is whether defendants deprived plaintiff of his Fourth Amendment rights

by using excessive force during the arrest. “To establish a Fourth Amendment violation based

on excessive force, a plaintiff must show that the defendant officer employed force that was

unreasonable under the circumstances.” Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007) (citing

Graham v. Connor, 490 U.S. 386, 397 (1989)). “The ‘reasonableness’ of a particular use of

force must be judged from the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The objective reasonableness of the

force used is determined by means of a balancing test that considers, among other things, the

“severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Id.; see also Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002).

The right to make an arrest carries with it the right to use some degree of physical force.

Graham, 490 U.S. at 396. Only excessive force is actionable; “not every push or shove rises to

the level of a constitutional violation.” Gaudrealt v. Municipality of Salem, 923 F.2d 203, 205

(1st Cir. 1990). On the other hand, “gratuitous and completely unnecessary acts of violence by

the police during a seizure violate the Fourth Amendment.” Fontana v. Haskin, 262 F.3d 871,

880 (9th Cir. 2001) (citing cases).

In the context of a motion for summary judgment, the question is whether the facts,

viewed in the light most favorable to plaintiff, could lead a reasonable jury to conclude that the

use of force by the officers was objectively unreasonable. Here, there are disputed issues of

material fact that bear directly on the inquiry into the objective reasonableness of the use of

force.

The most significant dispute is whether Smith was actively struggling and resisting arrest

after his vehicle was stopped.10 Defendants contend that after Smith was boxed in on all sides by

police cruisers and pulled out of his car, he remained non-compliant. They contend that he

ignored commands to show his hands; that he kept his arms tucked tightly underneath his body,

kicked his legs, and swung his upper body around; and that they only used the degree of force

necessary to gain control of him and effect the arrest. It is undisputed that the physical force

included, at a minimum, that sufficient to cause injuries requiring transport by ambulance and

radiological examination. It is also undisputed that Officer Manzi deployed her Taser four times

and that Officer Del Valle did so twice.11

Smith contends that Officer Parnell struck him in the head with a gun and that the officers

had no reason to use physical force on him after that point because he was unconscious. The

10 Among other things, it is also disputed whether Smith attempted to drive his car toward Officer Parnell

or Officer Padilla’s cruiser before being apprehended, and whether he nearly collided with other vehicles on the

highway. The resolution of those factual disputes may bear on the evaluation of the severity of the offense and

whether Smith posed an immediate threat to the safety of officers or civilians.

11 Officer Parnell denies that he struck Smith in the head with his gun. Defendants go further and claim

that “[t]here is no dispute that Officer Parnell at no time used force upon the person of [Smith].” (Def. Mem. in

Supp. of Mot. for Summ. J. 12). That is obviously incorrect. It is disputed whether Officer Parnell struck Smith in

the head with his gun. And he admits that he participated in dragging Smith out of the car, taking him to the ground,

and grabbing his right arm when he was on the ground. (Parnell Dep. 40).

video arguably supports, and certainly does not contradict, his version of events. And the nature

and degree of his injuries suggest that more force may have been applied than necessary simply

to subdue and handcuff him. Finally, additional, undocumented force may have been applied

during the unexplained gap in the video recording. Taken together, that evidence could create a

reasonable inference that considerable physical force was used on an unconscious and/or

unresisting suspect. The issue, of course, is not whether such an inference is correct; rather, it is

whether the officers are entitled to summary judgment. See, e.g., Moreau v. Geraldi, 2010 WL

4961676, at *5 (D. Mass. 2010) (denying summary judgment when plaintiff produced

circumstantial evidence that defendant officer assaulted him, despite having no memory of the

alleged assault, and leaving the matter for a jury to decide which account was credible).

With those disputes in mind, the Court will consider the factors set out in Graham as to

whether the use of force was reasonable under the circumstances.

The first issue is the severity of the crime. It is undisputed that the sole reason for the

officers to begin their pursuit of Smith was that he drove his car in reverse the wrong way on a

one-way street. It is also undisputed that he subsequently refused to stop and led the officers on

a high-speed chase, reaching speeds of up to 90 miles per hour on the highway, and that he later

pleaded guilty to reckless driving. There is no question that his behavior during the high-speed

chase was dangerous and posed a threat to the public.12 However, any threat he posed had

diminished considerably once he had been pulled from the vehicle. See Parker v. Gerrish, 547

F.3d 1, 9 (1st Cir. 2008) (noting that the crime of driving while intoxicated, while serious, does

not present the same heightened danger to arresting officers as violent crimes such as robbery or

12 Defendants contend that Smith also attempted to assault two police officers with his car. Smith disputes

that characterization, and notes that although he was charged with assault with a deadly weapon, he was not

convicted. In any event, a reasonable jury could find that he did not attempt to hit officers with his car.

assault, and that this was especially true because the plaintiff had left the vehicle and no longer

posed a threat of driving while intoxicated).

The second issue is whether the suspect posed an immediate threat to the safety of an

officer or others. At the time that Smith first came into physical contact with the officers, his car

had been completely disabled and immobilized. He was surrounded by at least nine police

cruisers manned by armed police officers. No officer testified that he suspected Smith of having

a gun, knife, or other weapon. No officers reported that they were injured by Smith punching,

kicking, or striking them. Within a matter of seconds after the stop, Smith was lying face down

on the ground underneath three to five officers, either unconscious or restrained. Again,

whatever threat he posed while driving the car had dissipated substantially by the time the force

was applied. 13

The third issue is whether the suspect was actively resisting arrest or attempting to evade

arrest by flight. The answer to that question turns on the resolution of the disputed facts. The

parties do not dispute that Smith initially fled from the police in his car, and that it was therefore

reasonable for the officers to stop his car with spike strips. The critical question is whether he

resisted arrest once his car was disabled. If in fact Officer Parnell struck him on the head with a

gun within seconds of the car stop, that was likely an objectively unreasonable use of force; he

was not suspected of having a weapon and he was stopped and surrounded on all sides.

Furthermore, there is no evidence that he was refusing to leave his car—or, indeed, that he was

even given a chance to leave his car peacefully. See, e.g., Raiche v. Pietroski, 623 F.3d 30, 37-

13 Defendants rely heavily on Kisela v. Hughes, 138 S. Ct. 1148 (2018) and Isom v. Town of Warren, Rhode

Island, 360 F.3d 7 (1st Cir. 2004). The facts of those cases are readily distinguishable from this case in many ways,

not the least of which is the application of the second Graham factor: the armed suspects in Kisela and Isom posed

an immediate threat to the safety of an officer or others, in contrast to Smith, an unarmed person whose car had been

disabled.

38 (1st Cir. 2010) (upholding jury finding of excessive force when police slammed motorist to

the ground after he was stopped and no longer evading the police); Ciolino v. Gikas, 861 F.3d

296, 304 (1st Cir. 2017) (upholding jury finding of excessive force when man who was yanked

to the ground for disobeying police order “was not given a chance to submit peacefully to arrest

before significant force was used to subdue him”). And once he was dragged out of the car, a

reasonable trier of fact could find that he was no longer resisting or evading arrest, either because

he had been knocked unconscious or because he was not physically struggling. See, e.g., Parker

v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008) (jury finding of excessive force upheld when defendant

officer used a Taser on a suspect who was “largely compliant” but moved his wrists into a

position difficult for handcuffing for several seconds); Raiche, 623 F.3d at 39 (“[I]t is

unconstitutional to tackle a person who has already stopped . . . and who presents no indications

of dangerousness.”); Jennings v. Jones, 499 F.3d 2, 11-12 (1st Cir. 2007) (upholding jury finding

of excessive force when evidence showed respondent officer increased physical pressure after

plaintiff had ceased resisting for several seconds); Jarrett v. Town of Yarmouth, 331 F.3d 140,

147 (1st Cir. 2003) (noting that if officer had ordered dog to “bite and hold after [plaintiff]

surrendered himself . . . the [plaintiff] clearly suffered a constitutional injury”); Huckins v.

McSweeney, 2012 WL 3308395, at *3 (D.N.H. 2012) (denying summary judgment on excessive

force claim where officer allegedly used a Taser on a prone person who was no longer resisting

arrest); Brown v. Lucas, 2018 WL 2209215, at *3 (D. Mass. 2018) (denying summary judgment

in excessive force case where there was a question of whether officer ordered a police dog to bite

plaintiff after he had surrendered).14

14 The Holyoke Police Department’s Standard Operating Procedure on Use of Force authorizes Taser use in

“drive stun” mode only when the suspect’s actions constitute “active resistance.” (Def. Ex. 11A).

Viewing the facts in the light most favorable to the plaintiff, and applying the Graham

multi-factor analysis, the force employed by the officers here was objectively excessive. For

present purposes, therefore, the first inquiry of the qualified-immunity framework is satisfied:

defendants deprived Smith of his Fourth Amendment rights by using excessive force during the

arrest.

a. Whether the Right Was Clearly Established

The next question is whether the constitutional right at issue was clearly established at the

time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232-33 (2009); Maldonado v.

Fontanes, 568 F.3d 263, 268-9 (1st Cir. 2009). The “clearly established” inquiry, in turn, has

two parts: “We ask (a) whether the legal contours of the right in question were sufficiently clear

that a reasonable officer would have understood that what he was doing violated the right, and

(b) whether in the particular factual context of the case, a reasonable officer would have

understood that his conduct violated the right.” Mlodzinski v. Lewis, 648 F.3d 24, 32-33 (1st Cir.

2011). Although this test does not require that a pre-existing case be “directly on point,”

“existing precedent must have placed the statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “Precedent involving similar facts can

help . . . provide an officer notice that a specific use of force is unlawful.” Kisela v. Hughes, 138

S. Ct. 1148, 1153 (2018).

The first question is readily answered: it was clearly established law at the time of the

arrest that it is unreasonable to use significant physical force upon a non-resisting, compliant

person—particularly so if the person is unconscious. See Jennings v. Jones, 499 F.3d 2, 18 (1st

Cir. 2007) (stating that “increased use of force on a previously resisting but now non-resisting

arrestee” was “excessive in violation of the Constitution,” and furthermore finding that this rule

was already clearly established at the time). See also Jarrett v. Town of Yarmouth, 331 F.3d 140,

147 (1st Cir. 2003) (it would be a constitutional violation for defendant officer to order a police

dog attack after plaintiff surrendered); Raiche v. Pietroski, 623 F.3d 30, 39 (finding that as of

2002, it was clearly established that it was illegal to tackle a suspect who has already stopped and

presents no indications of dangerousness); Asociacion de Periodistas de Puerto Rico v. Mueller,

529 F.3d 52, 61 (1st Cir. 2008) (“Based on both a ‘consensus of cases of persuasive

authority’ . . . and the general prohibition against excessive force,” defendants should have been

on notice that it was constitutional violation to pepper-spray non-threatening plaintiffs, and

denying qualified immunity) (internal citations omitted).15 The legal contours of that right were

sufficiently clear as of June 25, 2014, that a reasonable officer would have understood that what

he was doing violated the right.

The next question is “whether in the particular factual context of the case, a reasonable

officer would have understood that his conduct violated the right.” Mlodzinski, 648 F.3d 24, 32-

33 (1st Cir. 2011). Unquestionably, a reasonable officer would have understood that striking a

non-resisting person in the head with a gun, or beating the face and torso or using a Taser on

such a person, violated a clearly established constitutional right to be free from excessive force.

15 The First Circuit has also approved looking “to the case law of sister circuits in determining whether a

right was clearly established.” McCue v. City of Bangor, Me., 838 F.3d 55, 64 (1st Cir. 2016). Multiple circuit

courts have held that using a Taser on a person who is not actively resisting arrest constitutes excessive force. See

Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012) (collecting cases and concluding that “a

suspect’s active resistance . . . marks the line between reasonable and unreasonable tasing in other circuits.”). See

also Landis v. Baker, 297 F. App’x 453, 464 (6th Cir. 2008) (unpublished) (officers should have known that using a

Taser on a surrounded, prone suspect with one arm underneath him was a constitutional violation, and were not

entitled to qualified immunity); Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734 (4th Cir. 2013) (“It is an excessive

and unreasonable use of force for a police officer repeatedly to administer electrical shocks with a Taser on an

individual who no longer is armed, has been brought to the ground, has been restrained physically by several other

officers, and no longer is actively resisting arrest,” and denying summary judgment on qualified immunity grounds);

Oliver v. Fiorino, 586 F.3d 898, 908 (11th Cir. 2009) (using a Taser more than eight times on a suspect was

excessive force because he stopped resisting after the first shock, and any reasonable officer would have recognized

his actions were unlawful).

Again, while there is a factual dispute about whether the officers actually took the actions

plaintiff alleges, there is no real dispute that a reasonable officer would know that such actions

would be unlawful.

In summary, viewing the evidence in the light most favorable to plaintiff, the officers

here used objectively unreasonable and excessive force against Smith. Their actions violated the

clearly established right to be free from excessive force, and a reasonable officer would have

understood that those actions violated that right. Accordingly, Officers Del Valle, Manzi, and

Parnell are not entitled to qualified immunity on the claim of excessive force, and summary

judgment will be denied as to Count 1.

2. Civil Conspiracy

Count 7 alleges that defendant officers conspired to cover up their misconduct in

violation of 42 U.S.C. § 1983 and Smith’s constitutional rights. A civil rights conspiracy under

42 U.S.C. § 1983 is “a combination of two or more persons acting in concert to commit an

unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an

agreement between the parties to inflict a wrong against or injury upon another, and an overt act

that results in damages.” Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988) (internal citations

omitted). For a conspiracy to be actionable under §1983, plaintiff must prove that there was,

“besides the agreement, an actual deprivation of a right secured by the Constitution and laws.”

Id. To survive a motion for summary judgment on a civil conspiracy claim, plaintiff must

provide evidence, “either direct or circumstantial, of an agreement among defendants from which

a reasonable jury could have inferred a conspiracy among them to inflict harm upon the

plaintiff.” Estate of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008).

It is not entirely clear what federally protected right Smith alleges is at issue. See Thore

v. Howe, 466 F.3d 173, 179 (1st Cir. 2006) (upholding summary judgment for defendants on

civil conspiracy claim where plaintiff only argued that defendants conspired to justify an illegal

shooting, rather than identifying a specific constitutional deprivation, which—if properly

constructed—would be denial of his § 1983 right of action). If it is his Fourth Amendment right

to be free from excessive force, the claim must fail, as there is no evidence that the officers

reached any agreement between them to use excessive force upon Smith during the run-up to his

arrest. Indeed, there is no evidence in the present record that they even communicated with each

other during the pursuit and before the arrest, outside of the initial dispatch from Officer Manzi

to Officer Parnell requesting assistance with a car driving the wrong way down Elm Street.

Alternatively, Smith contends that defendants conspired to file false reports claiming that

their use of force was reasonable. For present purpose, that will be assumed, if true, to violate a

protected constitutional right. Smith identifies three facts that he says supports his conspiracy

claim: first, no internal-affairs investigation was ever conducted; second, the video refutes

defendants’ accounts that he resisted arrest; and third, Officer Parnell neglected to describe in his

arrest report the actions one can see him taking in the video—that is, approaching the car

window, handing a black object to a different officer, and removing Smith from the car. The

evidence in support of those assertions, however, is not sufficient to sustain a conspiracy claim.

To begin, there is no evidence in the record that the Holyoke Police Department either

conducted an internal-affairs investigation or failed to conduct one. At the summary judgment

stage, the issues are decided on the basis of record evidence, not allegations. And there is simply

no evidence either way to support or refute Smith’s contention. And the video and Officer

Parnell’s report, taken together, are not enough to prove a conspiracy. Certainly there are

discrepancies between the video and the various officers’ reports, but that alone does not suggest

that the officers reached an agreement or common plan to falsify their reports. Indeed, the

discrepancies among the arrest reports (such as Officer Manzi failing to mention that Smith

attempted to run over Officer Parnell, or Officers Manzi and Del Valle saying that Smith refused

to yield both arms while Officer Parnell only mentioned his right arm) suggest that the parties

did not reach such an agreement. See Basu v. Brogan, 47 F. App’x 586, 587-88 (1st Cir. 2002)

(unpublished) (“There is no evidence that in the heat of the moment [defendants] arrived at an

agreement or ‘common plan’ to offer false statements that would lead to Basu's arrest. The police

officers arrived very shortly after the car incident and immediately interviewed the

[defendants].”). Smith has not shown a pattern of behavior from defendants sufficient to

establish evidence of an ongoing conspiracy to deprive him of his rights, even assuming that the

officers acted with base motives in preparing their reports.

In summary, Smith has not provided sufficient evidence, “either direct or circumstantial,

of an agreement among defendants from which a reasonable jury could have inferred a

conspiracy among them to inflict harm upon the plaintiff.” Estate of Bennett, 548 F.3d at 178.

Summary judgment will therefore be granted in favor of defendants on the civil conspiracy

claim.

B. Claim Against the City of Holyoke Under § 1983 (Count 2)

The City of Holyoke has moved for summary judgment on Count 2, which seeks

damages against the City under a theory of municipal liability. See Monell v. Dep’t of Social

Servs., 436 U.S. 658, 691 (1978). Under Monell and its progeny, a municipality can be held

liable for alleged constitutional deprivations that arise from a governmental policy or practice.

In addition to establishing a constitutional deprivation, a plaintiff must show that (1) the

municipality had a custom, policy, or practice of failing to investigate, discipline, supervise, or

train its officers; (2) this custom, policy, or practice was such that it demonstrated a “deliberate

indifference” to the rights of those citizens with whom its officers came into contact; and (3) the

custom, policy, or practice was the direct cause of the alleged constitutional violation. DiRico v.

City of Quincy, 404 F.3d 464, 468-69 (1st Cir. 2005) (internal quotations omitted); see also City

of Canton v. Harris, 489 U.S. 378, 388-89 (1989); Monell, 436 U.S. at 690-92.

To prove a Monell claim against the City for failure to train or supervise its police

officers, the plaintiff must demonstrate both the existence of a policy or custom and a “direct

causal link” between that policy and the alleged constitutional deprivation. Canton, 489 U.S. at

385; see also Monell, 436 U.S. at 694 (policy must be the “moving force [behind] the

constitutional violation”). “Official municipal policy includes the decisions of a government’s

lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011); see also

Monell, 436 U.S. at 691 (informal practice must be “so permanent and well settled as to

constitute a ‘custom or usage’ with the force of law”); Whitfield v. Melendez-Rivera, 431 F.3d 1,

13 (1st Cir. 2005) (practices that are not officially authorized may nonetheless be actionable

under Monell if they are “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.”).

Smith bases his Monell claim on two theories: (1)a failure to train officers on pursuit and

use of force, and (2) a failure to investigate, supervise, and discipline officers who have used

excessive force.

1. Failure to Train

Smith points to four distinct instances of failure to train, and argues that together they

show that the City of Holyoke had a custom or policy of deficient training on vehicular pursuit

and use of force.

First, Officer Manzi testified that on the date of the incident, she was not familiar with the

police department’s policy on Taser use or vehicular pursuit, and in fact she had never been

trained on the pursuit policy. This is perhaps the most troubling evidence of failure to train;

Officer Manzi was “brand new” to the force at the time and any lessons she had learned in her

training should have been fresh in her mind. (Manzi Dep. 25).

Second, Officer Del Valle testified that he did not think it was his call to discontinue his

participation in the pursuit. That belief is contradicted by the department’s “High Speed Pursuit

Policy” SOP, which states that each officer must use his or her discretion to join or discontinue a

pursuit. (Def. Ex. 11C).

Third, at least three or four Holyoke police cruisers became directly involved in the

pursuit. That also appears to violate the “High Speed Pursuit Policy” SOP, which states that

“[o]nly one vehicle shall be directly involved in a high-speed chase unless a Commanding

Officer otherwise orders.” (Def. Ex. 11C). It also violates the “Vehicular Pursuit” SOP, which

states that “[a] third, fourth, fifth, etc. Holyoke Police vehicle should not become directly

involved in the pursuit.” (Def. Ex. 11B).

Fourth, if credited, the officers’ alleged actions in striking Smith’s head with a gun,

beating him, and using Tasers on his unresisting body violated the “Use of Force” SOP. The

SOP authorizes Taser use only on a person who is actively resisting, and general physical force

only to the extent necessary to bring an incident under control. (Def. Ex. 11A).

In addition, Smith has submitted a report by criminologist Dr. R. Paul McCauley, who

identified inadequacies in the officers’ method of effecting the vehicle stop. Among other

things, McCauley states that the car was surrounded with too many officers, creating a chaotic

scene and a greater risk of accidental injury. (McCauley Report, Pl. Ex. 6).

The first question is whether these deficiencies suggest that the City of Holyoke had a

“custom, policy, or practice” of failing to train so egregious that it gave rise to a constitutional

violation. “[A] training program must be quite deficient” to give rise to a “failure to train”

constitutional claim against a municipality: “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 ex. Rel. Napolitano, 404 F.3d 4, 27 (1st Cir. 2005). However, the court cannot

ignore “genuine disputes of fact about whether this training ever took place.” Id. (reversing

grant of summary judgment to defendant on Monell “failure to train” claim, as there was a

genuine dispute as to whether officers were trained at all on risks of friendly fire).

Here, the critiques offered by Dr. McCauley about the methods used to effect the stop

are, at best, arguments that the police department training on high-risk pursuits and stops was

imperfect; those deficiencies are insufficient, without more, to establish a failure to train that

rises to a constitutional violation. More troubling is Manzi’s complete lack of familiarity with

the vehicular pursuit and use of force protocols, and the discrepancies between officers’ actions

in the pursuit and the Holyoke vehicular pursuit SOPs. Such gaps in the knowledge of the

officers could raise “genuine disputes of fact about whether this training” on use of force and

vehicular pursuit “ever took place.” Young, 404 F.3d at 27. Defendants counter that Officer

Parnell was knowledgeable about pursuit policies, had prior pursuit experience, and considered

the appropriate factors when making his discretionary decision to continue the pursuit; they

argue that this demonstrates that there was not a widespread failure to train. But there appears to

be a genuine dispute of fact about whether the City broadly failed to train its officers on pursuit

and use of force.

The second question is whether the alleged failure to train demonstrated a “deliberate

indifference” to the rights of persons with whom the officers came into contact. “Triggering

municipal liability on a claim of failure to train requires a showing that municipal

decisionmakers either knew or should have known that training was inadequate but nonetheless

exhibited deliberate indifference to the unconstitutional effects of those inadequacies. . . . A

plaintiff typically must show a pattern of similar constitutional violations by untrained

employees . . . to demonstrate deliberate indifference for purposes of failure to train.” Gray v.

Cummings, 917 F.3d 1, 14 (1st Cir. 2019) (internal quotations and citations omitted) (affirming

summary judgment for defendants in Monell claim, where plaintiff claimed that the respondent

town’s training on interacting with mentally ill people was faulty, but provided no evidence of

past violations that would put the town on notice of the unconstitutional effects of this failure to

train).

Smith has identified two recent lawsuits against the City of Holyoke and its police

officers that alleged excessive force: De Jesus v. City of Holyoke, et. al., No. 3:13-cv-30128-

MAP (D. Mass.), based on the alleged beating of an unarmed and unresisting plaintiff after a

vehicular pursuit in 2010; and Hernandez-Pagan v. City of Holyoke, et. al., No. 3:17-cv-30031-

MGM (D. Mass.), based on the alleged beating of an unarmed 12-year-old boy who was innocent

of any crime but disobeyed police orders at a crime scene in February 2014. Neither of those

suits identify Officers Del Valle, Manzi, or Parnell as a respondent. Both suits survived motions

for summary judgment and were eventually settled and dismissed.

Those prior cases, in this context, could give rise to a finding of deliberate indifference

by the City of Holyoke. High-speed vehicular pursuits are relatively rare, and certainly so when

compared to traffic stops or other citizen encounters. They present unique dangers, and not just

to the police and public; there is a strong likelihood that they will terminate in an adrenaline-

filled, group encounter between police officers and a suspect, which in turn greatly increases the

potential for the exercise of excessive force. A single past episode of a vehicular pursuit gone

wrong therefore may have substantial significance in the Monell calculus, even where that would

not be true as to other types of police misconduct. Here, a lawsuit had been filed in 2013

alleging the use of excessive force—specifically, the beating of an unarmed and unresisting

suspect---after a vehicular pursuit.16 Under the circumstances, a reasonable jury could conclude

that the City was on notice as to the propensity of its officers to use excessive force after a

vehicular pursuit. A reasonable jury could further conclude that the City was aware that its

training on vehicular pursuits and the use of force was inadequate, but nonetheless exhibited

deliberate indifference to the unconstitutional effects of those inadequacies. See Fiacco v. City

of Rensselaer, N.Y., 783 F.2d 330, 328 (2nd Cir. 1986) (“Whether or not the claims [of excessive

force] had validity, the very assertion of a number of such claims put the City on notice that there

was a possibility that its police officers had used excessive force” and bore upon whether the

City was deliberately indifferent to officers’ excessive force).

The third question is whether the City’s alleged failure to train its officers on use of force

and pursuit policy was the direct cause of the alleged constitutional violation. Defendants argue

that any deficiencies in the City’s vehicular pursuit training did not cause Smith’s injuries,

because he was injured by contact with police officers rather than by the pursuit itself. The

Court is not so sure. Even though Smith was not injured by the car chase or by the spike strips, a

16 As noted, there was also a separate case where officers were alleged to have used excessive force on an

unarmed child who had disobeyed police orders but had not acted violently.

reasonable jury could find that the officers’ lack of training in the pursuit policy led to a grossly

excessive number of officers being present at the end of the pursuit. A reasonable jury could

further find that the excessive number of officers, at least one of whom had not been trained at

all, created a chaotic, dangerous arrest scene, with officers not being able to communicate

effectively and calmly with him or with each other. That, in turn, increased the likelihood that

Smith would be subject to excessive force.17

In summary, Smith has raised a genuine dispute of fact as to whether the City of Holyoke

failed to train its officers on its written use of force and vehicular pursuit policy, which may have

directly caused defendant officers to violate his constitutional right to be free from excessive

force. Summary judgment will therefore be denied as to Count 2, to the extent that claim relies

on the City’s alleged failure to train officers on vehicular pursuit and use of force.

2. Failure to Investigate, Supervise, and Discipline

Smith further argues that the City failed to investigate, supervise, and discipline officers

who used excessive force. He has submitted a report from Dr. McCauley stating that the

Holyoke Police Department’s failure to conduct an internal-affairs investigation revealed an

“organizational indifference to holding officers accountable . . . [which] jeopardizes the safety of

both police officers and citizens.” (McCauley Report 19; Pl. Ex. 6). Again, however, he has

submitted no evidence that the police department actually failed to conduct an internal-affairs

investigation.

The Holyoke Police Department “Use of Force” SOP requires that officers file a use of

force report every time they deploy a weapon (including a Taser) or injure a person. The SOP

17 The City’s alleged failure to train its officers on use of force and appropriate use of a Taser, if

substantiated, could also be a “direct causal link” to the excessive use of force.

includes a standard “Use of Force Report,” which both plaintiff and defendants allege that

Officers Del Valle and Manzi completed regarding their Taser use. There is no evidence that the

Holyoke Police Department had a custom or policy of failing to complete Use of Force reports,

which arguably could be evidence of broader failures to investigate excessive-force claims.18

In short, plaintiff has not presented affirmative evidence that the City of Holyoke had a

custom or policy of failing to investigate, supervise, or discipline its officers for excessive force.

Summary judgment will therefore be granted as to Count 2, to the extent that the claim relies on

the City’s alleged failure to investigate, supervise, or discipline its officers.

3. Whether to Bifurcate Claim Against the City from Claims Against

Individual Officers

Defendants have moved in the alternative to bifurcate trial of the Monell claim against the

City from the claims against the individual police officers. Fed. R. Civ. P. 42(b) permits a court

to order a separate trial of one or more separate claims “for convenience, to avoid prejudice, or to

expedite and economize.” The decision to bifurcate a civil-rights trial into an initial phase

concerning the liability of individual officers, followed by a second phase concerning municipal

liability, is a “classic exercise of the trial court’s management discretion.” Lund v. Henderson,

807 F.3d 6, 12 (1st Cir. 2015).

The alternative motion for bifurcation will be denied. The Court finds that it is in the

interest of judicial economy to resolve the claims against the individual officers and the claim

against the City in one trial, as there is substantial overlap in the relevant evidence. Furthermore,

18 Smith points to a recent lawsuit, Hernandez-Pagan v. City of Holyoke, et. al., No. 3:17-cv-30031-MGM

(D. Mass.), in which plaintiff accused Holyoke officers of ignoring her excessive-force complaint and refusing to

investigate the beating of her 12-year-old son. Smith argues that this demonstrates Holyoke’s “custom or policy” of

failing to investigate and discipline officers. However, that case was not adjudicated on the merits, and even

assuming its allegations were true, it represents a single instance of improper follow-up to an excessive-force

complaint.

there has been no showing that any party would be prejudiced by trying all claims together,

particularly in light of the narrowed scope of the Monell claim. The Court is confident that with

proper jury instructions and careful trial management any possible prejudice or juror confusion

will be avoided.

IV. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is DENIED as to

the claim of excessive force under 42 U.S.C. § 1983 (Count 1); GRANTED as to the claim of

civil conspiracy under 42 U.S.C. § 1983 (Count 7); DENIED as to the municipal liability claim

against the City of Holyoke for failure to train (Count 2); and GRANTED as to the municipal

liability claim against the City of Holyoke for failure to investigate, supervise, or discipline

(Count 2). Defendants’ alternative motion to bifurcate the claims against the individual

defendants from the claim against the City of Holyoke is DENIED.

So Ordered.

/s/ F. Dennis Saylor, IV

F. Dennis Saylor, IV

Dated: March 30, 2020 Chief Judge, United States District Court