The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______
)
LUKE DEPTULA, )
Plaintiff, )
)
v. ) CIVIL ACTION
) NO. 17-40055-TSH
)
)
CITY OF WORCESTER, JEFFREY CARLSON, )
JAMES E. BATES, KELLEN E. SMITH, )
MATTHEW EARLY, and GARY GEMME )
Defendants. )
)
MEMORANDUM OF DECISION AND ORDER
April 6, 2020
HILLMAN, D.J.
Background
Luke Deptula (“Deptula” or “Plaintiff”) has filed suit against the City of Worcester
(“City”), Jeffrey Carlson (“Officer Carlson”), James E. Bates (“Officer Bates”), Kellen E.
Smith (“Officer Smith”), Matthew Early (“ Sgt. Early” and together with Officer Smith and
Officer Bates, “Defendants”), and Gary Gemme (“Chief Gemme”), under 42 U.S.C. §1983
for violation of his constitutional rights (Count I for unreasonable force against Officers Bates
and Carlson; Count II for failure to protect against Sergeant Early, and Officer Smith, and
Count V against the City of Worcester under Monell v. New York City Dep’t of Social
Services, 486 U.S. 658, 98 S.Ct. (1978) and supervisory claims against Chief Gemme and Sgt.
Early). Deptula has also filed Massachusetts state law claims for violation of the
Massachusetts Civil Rights Act (“MCRA”, Mass.Gen.L. ch. 12, §§11H-I1 (Count III against
Officer Smith), and tort law claims for assault and battery (Count IV against Officers Bates,
Carlson, and Smith), civil conspiracy (Count VI against Sgt. Early, Officers Bates, Carlson
and Smith), and intentional infliction of emotional distress (Count VII against Sgt. Early,
Officers Bates, Carlson and Smith) 2. Specifically, Plaintiff alleges that when he was arrested,
Officer Carlson punched him in the face multiple times and the other officers failed to
intervene to stop the beating. This Memorandum and Order of Decision addresses the motions
of Defendants Sergeant Early and Officers Bates and Smith for Partial Summary Judgment
(Docket No. 85), and Plaintiff Luke Deptula’s Motion For Partial Summary Judgment on
Count I, Count II (Docket No. 88).For the reasons set forth below, Defendants’ motion for
partial summary judgment is granted, and Plaintiff’s motion for partial summary judgment is
denied.
1 In the complaint, Plaintiff alleges a claim pursuant to the MCRA but again refers to “M.G.L. c. 112,
§ 11IM.” Plaintiff’s attorneys have been filing complaints in this Court citing to Chapter 112 for years and in
multiple opinions, the Court has indicated to counsel that Massachusetts General Laws Chapter 112 deals with
the registration of certain professions and occupations and that counsel obviously means to cite to Mass.Gen. L.
ch. 12, § 11I, which deals with the violation of constitutional rights.. Counsel has chosen not to fix this error.
Moreover, the miscite is repeated in Plaintiff’s memorandum in support of his motion for partial summary
judgment. The Court has lost patience with counsel’s failure to fix an obvious error despite repeated
admonitions. The next time that a complaint is filed with this erroneous statutory reference, the Court will
entertain a motion to dismiss such count out of hand with prejudice.
Unfortunately, such sloppiness is indicative of many of the filings counsel makes in this Court. Later
in this opinion, the Court points out other errors in Plaintiff’s submissions. See infra, note 4. Accordingly, I will
again remind Plaintiff’s counsel that they should review their submissions with significantly more care
than they have to date.
2 The Complaint also named Officers Dana Randall and Larry Williams in Counts II (failure to
intervene), VI (conspiracy) and VII (intentional infliction of emotional distress). These officers were dismissed
from the case on May 10, 2018. See Docket No. 37.
2
THE CROSS-MOTIONS FOR SUMMARY JUDGMENT
Standard of Review
Summary Judgment is appropriate where, “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine ,issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ.
P. 56(c)). “‘A “genuine” issue is one that could be resolved in favor of either party, and a
“material fact” is one that has the potential of affecting the outcome of the case.” Sensing v.
Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-
Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
When considering a motion for summary judgment, the Court construes the record in
the light most favorable to the nonmoving party and makes all reasonable inferences in favor
thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the
absence of a genuine issue of material fact within the record. Id., at 152. “‘Once the moving
party has pointed to the absence of adequate evidence supporting the nonmoving party’s case,
the nonmoving party must come forward with facts that show a genuine issue for trial.’” Id.
(citation to quoted case omitted). “‘[T]he nonmoving party “may not rest upon mere
allegations or denials of the [movant’s] pleading, but must set forth specific facts showing that
there is a genuine issue of material fact as to each issue upon which [s/he] would bear the
ultimate burden of proof at trial.” Id. (citation to quoted case omitted). The nonmoving party
cannot rely on “conclusory allegations” or “ improbable inferences”. Id. (citation to quoted
3
case omitted). “ ‘ The test is whether, as to each essential element, there is “sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” ’ ” Id.
(citation to quoted case omitted). “Cross-motions for summary judgment require the district
court to ‘consider each motion separately, drawing all inferences in favor of each non-moving
party in turn.’ “ Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir.
2014)(citation to quoted case omitted).
Facts3
Defendants’ Version of the Events
At all relevant times, Officer Smith was an officer with the Worcester Police
Department (“WPD”) Vice Squad. While conducting an investigation, Officer Smith
identified Deptula as the head of a retail-level oxycodone distribution organization operating
in the Worcester area with his brother, Daniel Deptula (“Daniel”), and then girlfriend, Allie
Marsden (“Marsden”). The investigation involved multiple controlled buys of illegal drugs
from Deptula. On Monday, March 31, 2014, Officer Smith obtained search warrants from a
Worcester District Court Clerk Magistrate for a search of Deptula’s residence at 3A Millbrook
Street, Worcester, and his vehicle. Once the search warrants were obtained, Vice Squad
officers went to 3A Millbrook Street, and to Deptula’s parent’s house on Santoro Road,
Worcester where his car was parked.
3 Plaintiff has asserted numerous facts which are relevant only to his claim against the City under
Monell. Since the Court granted Defendants’ motion to bi-furcate the trial, the Court will not address Plaintiff’s
Monell claim against the City or his supervisory claim against Chief Gemme and Sgt. Early when considering
the cross-motions for summary judgment. If a trial of claims against the City and/or Chief Gemme and Sgt. Early
becomes necessary, the Court will grant the parties an opportunity to file dispositive motions on these claims.
Additionally, the Plaintiff has asserted numerous other facts that under the broadest definition of the term, are
not relevant to the parties’ motions. Except for a brief summary of the WPD’s use of force policy to provide
context, such facts also will not be considered.
4
At approximately 2:05 p.m., Vice Squad officers observed Deptula driving away from
his parents’ house. They followed him to the parking lot of L&M Tire, a car repair business
located at 598 West Boylston Street, Worcester. After Deptula pulled into the parking lot, he
got out of the vehicle. According to Officer Carlson, he was talking on his cell phone. Officer
Smith, who was not at the scene at that time, communicated to the officers who were present
to stop Deptula. Officers Carlson and Bates approached Deptula and it appeared to Officer
Carlson that they startled him. As he approached Deptula, Officer Carlson was displaying
handcuffs, his badge, a firearm and police radio. Bates’s police badge was visible as he got
out of his vehicle to approach Deptula.
Officer Bates took Deptula’s cell phone and walked away from him. Deptula then
pulled a fake thumb off his finger and Officer Carlson observed him place multiple small,
light-colored items into his mouth. Based on his experiences and the information learned
through the investigation, Officer Carlson believed that Deptula was ingesting illegal narcotic
pills. In Carlson’s experience, it’s not unusual for people carrying illicit drugs to attempt to
swallow them to get rid of incriminating evidence. Deptula continued to chew the pills and
turned away from the officers. Officer Carlson forced Deptula to the hood of his vehicle.
Officer Bates, who also saw Deptula remove the false thumb, did not assist him. The false
thumb was seized as evidence. Officer Carlson reported that he then delivered two open hand
palm strikes to the right side of Deptula’s face to dislodge the evidence so that Deptula would
not swallow it and to prevent it from being destroyed. Officer Carlson described his actions
(of hitting Deptula with his palm) as a distraction technique to try to get him to spit out the
drugs. Deptula was chewing and swallowing the pills, causing a white chalky substance to be
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visible on his lips and tongue. Officer Carlson was not sure if Deptula put more than one pill
in his mouth and Officer Bates saw Deptula put at least one pill in his mouth but could not
see what color it was. Officer Bates was not sure that Deptula was on his phone when they
approached. Officer Carlson stated that he believes Officer Bates was still at the scene and
assisted him in handcuffing Deptula. According to Officer Bates, once he took Deptula’s
phone, he was no longer involved and did not see any use of force by Officer Carlson on
Deptula. Deptula was placed into handcuffs and asked if he wanted medical attention, which
he declined.
Deptula was “handcuffed, standing up [and] compliant” when Sgt. Early arrived.
Officer Smith did not arrive at the scene until Deptula was already in handcuffs. Deptula did
not complain to Officer Smith or Sgt. Early that he had been struck. Officer Smith transported
Deptula in his police vehicle to 3A Millbrook Street where the search warrant was being
executed. Officer Smith wanted to get Deptula away from the scene quickly because they
were drawing attention and he feared that the persons at the Millbrook Street residence would
be alerted. Oxycodone pills and marijuana were found at the residence during the search and
following the execution of the search warrants, Deptula and Marsden, who was present at the
residence werearrested.. Prior to being transported to the Worcester PD Deptula was asked
again if he needed medical attention. He declined and stated that he did not have any injuries.
During booking at the WPD, Deptula when asked again, denied that he was sick or
injured. He did not exhibit any visible injuries. Deptula has testified that he didn’t “know” if
he had any visible injuries but was in pain. No visible injuries can be seen on Deptula’s
booking photographs which include clear views of Deptula’s ears. After his arrest and court
6
appearance. Deptula was detained as a pretrial detainee in the Worcester County Jail (“WCJ”)
in connection with his March 31, 2014 arrest and another criminal matter.
Deptula’s Version of the Events
According to Deptula, once he got to the parking lot of L&M Tire, he exited his
vehickle to smoke, leaving his cell phone inside. While smoking, he saw somebody parked
nearby in an old truck. A couple of seconds later, the person in the truck (later identified as
Officer Bates) got out and ran towards him, grabbed him by the throat, threw him on the hood
of his car and handcuffed him. Other officers assisted Officer Bates. He also asserts that prior
to being thrown against the hood of the car and handcuffed, Officer Bates placed Deptula in a
chokehold. Deptula contends that he did not put any pills in his mouth and was not attempting
to swallow anything. Deptula asked what was going on and recognized Officer Smith. Officer
Bates said “there was nothing here, and somebody said because he ate them all.” Officer
Carlson said “you ate them all, you fucking pussy.” Deptula testified that he then felt “two-
two, two hits to the right of my ear and I was like, did somebody just hit me? Officer Bates
leans me back on the hood of the car and says, nobody hit you, buddy, straighten your back
up, in a calm voice. And I was like, somebody definitely just hit me, and right away, boom-
boom, two more times to the same ear (with a closed fist) and that’s when I was like, what the
hell are you guys doing? What are you hitting me for? And that’s when Officer Smith said,
we’re causing a scene. He grabs me, throws me in the back of his seat and drives me off.”
According to Deptula, Sgt. Early was also present at the time of his arrest. Deptula disputes
that anyone ever offered him medical attention. Moreover, he contends that while Officer
Smith was driving him to his residence on Millbrook Street (about a two minute drive) he was
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in pain and his body leaned over. Officer Smith asked him what was wrong and after Deptula
told him another officer had hit him four times, Officer Smith flexed his arm and fist,
threatened to hit him and swung at him.
At the WCJ, Deptula put in a sick slips complaining of pain in his head and ringing in
his ears. He did so after someone mentioned he had a black mark on his face. His first sick
slip, submitted on April 3, 2014, complained that he was suffering from withdrawal. His
second slip, submitted on April 6, 2014, complained that he was having trouble sleeping and
suffered from migraine headaches. His third slip, submitted on April 9, 2014, in addition to
mentioning his problem with withdrawal, mentions for the first time a bruise on his face and
that his ear hurt; he attributes both to a beating he suffered on the day of his arrest. His fourths
slip, submitted on April 20, 2014, complains of ringing in his ears which he attributes it to the
events of his arrest. Generally, the nurses who saw Deptula reiterated the history he provided
them. On April 20th, the nurse reported seeing a small bruise near his jawline that was
resolving and no evidence of external trauma with respect to his ear.
Defendants’ Background and the WPD use of Force Policy
Officer Jeffrey Carlson became a police officer in 2004 and was a member of the
WPD Vice Squad from the summer of 2008 through approximately October 2017. At the
police academy, he was trained on criminal law, constitutional law, basic narcotics, use of
force, domestic violence, defensive tactics and motor vehicle training. He had also taken part
in an 80 hour drug investigation course run by the Drug Enforcement Agency, a forty hour
course on street crimes (concentrating on drug offenses) and received on the job training. As
a member of the Vice Squad, he investigated drug and prostitution offenses but the majority
8
of his time (about 90 percent) was spent investigating drugs. He had been involved in 75 to
100 cases where the suspect tried to swallow drugs such as heroin, crack and/or pills (such as
opiates, percocet, oxycodone, and suboxone). He had personally used force approximately 25-
39 times to prevent someone from swallowing drugs—most of the time, the force utilized was
grabbing someone’s cheeks and squeezing them.
Officer Smith has also encountered individuals that swallowed drugs while working
with the Vice Squad including Class A, B and C substances and pills (including opiates).
Officer Smith would attempt to prevent such individuals from swallowing such substances
including by using his hands. He testified that officers would apply force at a pressure point
on the side of the jaw to prevent the person from swallowing, place the person in a position
where it was difficult to swallow or insert fingers in someone’s mouth and apply pressure to
the “jaw joint” in front of the ear. According to Officer Smith, the goal was not to cause pain,
but to prevent the subject from swallowing something that could be harmful to the person or
constitute evidence.
Sgt. Early testified during his 10 years on the Vice Squad, he witnessed people
swallowing drugs “many times” during encounters with police and had observed WPD
officers using force to stop individuals from swallowing drugs, including pinching the
suspect’s nose closed, spraying the suspect with pepper spray and applying pressure to the jaw
area. Sgt. Early feels it is appropriate to strike a suspect in the face to dislodge the drugs.
Other officers who are not parties to the suit but were present at the arrest scene have testified
similarly.
9
On March 31, 2014, the WPD’s use of force policy permitted officers to use
nondeadly force to bring an unlawful situation under control. Chief Gemme did not believe
that this provision allowed officer to deliver strikes to someone’s face unless the officer faced
aggressive resistance or assaultive behavior by the suspect. Other high ranking WPD officials
dispute that the police as written in 2014 would not have permitted use of force such as
striking an individual to prevent the swallowing of drugs. After this incident, the WPD use of
force policy has been amended to bar the use of force to stop drug ingestion unless the suspect
is assaultive towards the police.
Discussion
Deptula’s claims arise out his arrest by the WPD in connection with an ongoing drug
investigation. He seeks partial summary judgment on his claims that Officer Carlson
violated his rights under the Fourth Amendment by using excessive force in connection with
effectuating that arrest, that Officer Carlson committed an assault and battery against him, and
his Monell and supervisory claims against the City and Chief Gemme. Defendants seek
summary judgment on all claims against them. Initially, the Court will address Plaintiff’s
motion for summary judgment.
Plaintiff’s Motion for Partial Summary Judgment4
Deptula seeks summary judgment against Officer Carlson on Count I (§1983
excessive force), and against Officer Carlson on Count IV (tort claim for assault and battery),
4 The captions of Plaintiff’s motion and supporting memorandum indicate that he is seeking partial
summary judgment on Counts I and II, yet he makes no substantive argument regarding his entitlement to
summary judgment on Count II. Instead, in those submissions Deptula asserts that he is seeking partial summary
judgment on Counts I, IV and V. Additionally, in his memorandum in support of his motion, Plaintiff on one
occasion refers to himself as “Lachance.” The Court mentions these errors in conjunction with its comments in
note 1, supra.
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and against the City, former Chief Gemme and Sgt. Early on Count V (§ 1983 Monell and
supervisory claim)5 because Officer Carlson allegedly violated the WPD policy regarding use
of force during his arrest, and that Carlson was not properly trained as to the type and amount
of force to use when an individual swallows illegal substances.. Plaintiff fails to appreciate
that these arguments while possibly relevant to his Monell claim, are not relevant to his claims
against Officer Carlson. Instead, the question before the Court is whether Officer Carlson’s
striking him to prevent him from swallowing illegals drugs is a constitutional violation
irrespective of whether Officer Carlson followed (or did not follow) the WPD’s use of force
policy. Put another way, the issue before the Court is whether Officer Carlson’s use of force
against Deptula constitutes a Fourth Amendment violation, as a matter of law.6
“ ‘[A]ll claims that law enforcement officers have used excessive force … in
the course of an arrest” are to be decided under a Fourth Amendment standard
of reasonableness, the proper application of which “requires careful attention
to the facts and circumstances of each particular case, including 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.’ ” The standard is an objective one: ‘An
officer’s evil intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer’s good intentions make
an objectively unreasonable use force constitutional.’ ‘The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation.’ The analysis is confined to the totality of the
circumstances known to the officers at the time the decision to use force was
made. The fact that force was used is not, in and of itself, dispositive. ‘Our
Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some
5 The Court will not consider Plaintiff’s motion for summary judgment on Count V (§1983 against the
City, Chief Gemme and Sgt. Early) at this time. See note 3, supra.
6 In order to establish his § 1983 claims against the Defendants, Deptula must first establish that a
person acting under the color of law denied him a right secured by the constitution or by federal law. There is no
dispute that the Defendants were acting under the color of law and therefore, that element of Deptula’s claims
will be deemed satisfied for purposes of all parties’ motions.
11
degree of physical coercion or threat thereof to effect it.’ The issue rather is
whether the amount of force used was reasonable under the circumstances.
Reasonableness ‘must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.’ ”
Farrah ex. rel Estate of Santana v. Gondella, 725 F.Supp.2d 238, 244-45 (D.Mass.
2010)(internal citations and citation to quoted cases omitted).
Where a suspect is attempting to swallow pills or other illicit drugs, the government
has an interest in preventing a potential drug overdose and preserving evidence. These are
legitimate law enforcement interests which may justify the use of some force under some
circumstances. Accordingly, numerous courts have upheld the use of physical force by an
officer to prevent a suspect from swallowing drugs or otherwise attempting to destroy
evidence in order to preserve such evidence and/or for the safety of the suspect. See e.g.,
Morris v. Tulsa Police Dep’t, No. 09–CV–797–JHP–TLW, 2011 WL 1542920, at *5
(N.D.Okla. Apr. 21, 2011)(upholding use of Taser where plaintiff ingested cocaine in attempt
to destroy evidence and fought with police officers); Barber v. Santa Maria Police Dep’t, No.
CV 08–6273–DMG (MLG), 2010 WL 5559708, at *8 (C.D.Cal. Sept. 1, 2010) (finding knee
strikes to plaintiff’s neck and face objectively reasonable where plaintiff refused to obey
officers’ orders during strip search, attempted to stuff the contents of a bag down a drainage
pipe, and resisted officers’ efforts to restrain the plaintiff); Simms v. City of Harrodsburg, No.
06–CV–104–JMH, 2007 WL 2792174, at *4 (E.D.Ky. Sept. 21, 2007) (finding that dragging
suspect who was attempting to destroy evidence of methamphetamine manufacture during
execution of search warrant was objectively reasonable to stop plaintiff from destroying
evidence and resisting arrest); Singleton v. City of Newburgh, 1 F.Supp.2d 306, 313–15
(S.D.N.Y.1998)(it is clear that person has no constitutional right to secrete evidence; degree
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of force that may be used in attempting to seize secreted evidence must be balanced with
legitimate goals of law enforcement, and determined in light of totality of circumstances;
finding discharge of pepper spray reasonable to induce an arrestee to spit out contraband).
Prevailing case law establishes that it is reasonable for an officer to strike an arrestee
to dislodge drugs from the arrestee’s mouth so long as the force used is not beyond that
minimally necessary to prevent the arrestee from ingesting such drugs. Viewing the facts in
the light most favorable to Officer Carlson, Deptula removed a fake thumb and inserted
something which had been secreted therein in his mouth. Based on his experience and
investigation of Deptula, Officer Carlson reasonably believed that Deptula had put illegal
narcotics, i.e., pill(s) into his mouth. He then struck Deptula in the face two times in quick
succession with an open hand in order to dislodge the pills he was swallowing. As stated
previously, police officers have a lawful interest in preventing the destruction of evidence and
protecting the safety of the suspect who could face dire consequences upon swallowing illicit
drugs. The Court cannot find that the force which Officer Carlson used exceeded that which
was reasonably necessary to dislodge the pills from Deptula’s mouth. Plaintiff’s motion for
summary judgment on Count I is denied.
As to Deptula’s assault and battery claim against Officer Carlson, Massachusetts law
allows for assault and battery claims against police officers who use excessive force in
conducting an arrest. At the same time, Massachusetts law also allows an officer to use
reasonable force in conducting a lawful arrest. Where, such as in this case, a plaintiff alleges
both a §1983 excessive force claim and common law claim for assault and battery, the
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determination of the reasonableness of the force used under §1983 controls the determination
of the reasonableness of the force used under the common law assault and battery claims.
Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir. 2010). Accordingly, Deptula’s motion for
summary judgment is also denied with respect to his assault and battery claim (Count IV).
Defendants’ Motion for Summary Judgment
Counts I and II: Whether any Defendant Violated Plaintiff’s Constitutional Rights By Using
Excessive Force Against Him During His Arrest And/Or By Failing To Intervene In Officer
Carlson’s Use of Force
The Court has previously stated the standard for establishing Deptula’s claim in Count
I for direct violation of his Fourth Amendment Right to be free from excessive force. In Count
II, Deptula asserts a §1983 claim for failure to intervene. Under this theory, a police officer:
who fails to take reasonable steps to protect the victim of another officer’s use
of excessive force may be held liable under section 1983 on a failure to
intervene theory. … the ‘failure to intervene’ rule applies only when an officer
has ‘a realistic opportunity to intercede.’
Farrah, 725 F.Supp.2d 238, 244-45, at 246. Officer Bates (the only one of these Defendants
named in Count I) argues that he is entitled to summary judgment on Count I because Deptula
has not alleged any facts which would support a finding that he utilized force against him and
therefore, he cannot state a claim against him for a direct violation of his constitutional rights.
As to Count II, Sgt. Early and Officer Smith (the only of these Defendants named in this
Count), assert that they are entitled to summary judgment on Deptula’s §1983 failure to
intervene claim because they had no realistic chance to intercede to prevent Officer Carlson
from striking him. In the alternative, the Defendants argues that they are entitled to qualified
immunity on these claims.
14
I agree with the Defendants that on the record before me, there is no genuine issue of
material fact regarding Deptula’s allegations against Officer Bates in Count I or Sgt. Early
and Officer Smith in Count II. More specifically, there is no evidence to support a finding that
the force Officer Bates used against Deptula (grabbing him by the throat while pushing him
against the hood of the car and briefly placing him in a chokehold) was unreasonable under
the circumstances. As to Deptula’s claims in Count II against Sgt. Early and Officer Smith, by
his own testimony, the events of which he complains took place in a matter of seconds. More
specifically, Officer Carlson allegedly hit him four times in quick succession-- after the first
two hits, Officer Bates was talking to him calmly when two more hits came “right away.”
There is not a scintilla of evidence that would support a finding that either of them was in
position to stop Officer Carlson’s alleged attack. Accordingly, the Defendants’ motion for
summary judgment is granted on Counts I and II.
Count III: Whether Deptula has established his MCRA Claim against Officer Smith
To establish a claim under the MCRA, Deptula must prove that his exercise or
enjoyment of rights secured by the constitution or laws of either the United States or
Massachusetts has been interfered with. See Mass. Gen. L. ch. 12, § 11I. The MCRA is the
state “counterpart” to Section 1983 and, in general, is coextensive therewith. The primary
difference is that to succeed on an MCRA claim, a plaintiff must also show that the violation
of rights occurred “by threats, intimidation or coercion.” Bally v. Northeastern Univ., 403
Mass. 713, 532 N.E.2d 49, 52 (1989). “A ‘threat’ means the ‘intentional exertion of pressure
to make another fearful or apprehensive of injury or harm.’ ” Goddard v. Kelley, 629
F.Supp.2d 115, 128 (D.Mass. 2009)(citation to quoted case omitted). “Intimidation” means
15
putting a person in fear for the purpose of compelling or deterring his or her conduct. Id.
“Coercion” means application of physical or moral force to another to constrain him to do
against his will something he would not otherwise do. Id.
Little need be said about this claim. Deptula asserts that while Officer Smith was
driving him to his residence where a search was underway, he turned around (in response to
Deptula stating that another officer had beaten him), raised his fist, threatened to punch him
and made a swinging motion. Assuming that Officer Smith’s actions constituted a threat,
intimidation and/or coercion, his conduct while perhaps boorish, simply does not rise to the
level of a constitutional violation. The Defendants’ motion for summary judgment on Count
III is granted.
Count IV: Whether Deptula has established a Claim for Assault and Battery against Officers
Bates and Smith
For the same reasons that I find Deptula’s §1983 claims against Officers Bates and
Smith fail, his claim for assault and battery against them also fails, i.e., none of the
Defendants used any force against him that was beyond that which was reasonable under the
circumstances and/or had a reasonable opportunity to intervene in another officer’s use of
force against him. Defendants’ motion for summary judgment is granted as to Count IV.
Count VI: whether Deptula has established a Claim for Conspiracy against the Sgt. Early and
Officers Bates and Smith
In their supporting memorandum, Defendants state that it is unclear whether Count VI
of the Plaintiff’s complaint asserts a claim for conspiracy under §1983 or a common law
conspiracy claim. In his opposition, Plaintiff contends that he is asserting a claim under §1983
for conspiracy to violate his constitutional right to be free from excessive force. First, were
16
Deptula proceeding pro se, the Court would be required to construe his claims liberally, that
is, the Court will make the necessary inferences where the allegations suggest an actionable
claim. However, Deptula is represented by counsel and therefore, is expected to state his
claims in such a way that the cause of action is readily discernible to both the Court and the
Defendants. Plaintiff’s complaint asserts only a conclusory claim for common law conspiracy
whereby the Defendants and Officer Carlson allegedly conspired to file false police reports.
However, in his opposition, he now contends that the Defendants and Officer Carlson
conspired to violate his civil rights under §1983 by using excessive force against him. A
plaintiff cannot in his opposition recharacterize the nature of his claim and judgment against
him is warranted on this claim for that reason alone. In any event, as pointed out by the
Defendants, there is no evidence in the record which would support a finding that there was
an agreement by the Defendants and Officer Carlson to violate his civil rights. Therefore,
summary judgment shall enter for the Defendants on this claim. Moreover, if the Court were
to consider Deptula’s claim as one for common law conspiracy, Defendants are entitled to
summary judgment because given his arguments in his opposition, I find that he has waived
any such claim, and, for the reasons set forth below, such claim fails.
Under Massachusetts law, there are two types of civil conspiracy claims: The first
requires proof of coercion, while the second requires proof of a common plan to commit a
tortious act. “Under the first type of conspiracy, a plaintiff must allege that the defendant and
others combined to have a special coercive power that they did not possess individually. To
state a claim for the second type of conspiracy, the plaintiff must allege ‘first, a common
design or an agreement, although not necessarily express, between two or more persons to do
17
a wrongful act and, second, proof of some tortious act in furtherance of the agreement.’ ”
Farrah, 725 F. Supp. 2d at 248–49. Since Deptula is presumably preceding under the second
theory (as noted previously, the complaint simply alleges that the Defendants and Officer
Carlson conspired to file false police reports), he must prove that the Defendants and Officer
Carlson acted pursuant to an agreement, “ ‘[i]t is not sufficient to prove joint tortious acts of
two or more persons.... ‘” Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 415
(2002)(citation to quoted case omitted). As again pointed out by the Defendants, there is no
evidence in the record which would support a finding that Defendants and Officer Carlson
conspired to hide his alleged beating by filing false police reports.7
Count VII: whether Deptula has established a Claim for Intentional Infliction of Emotional
Distress against Sgt. Early and Officers Bates and Smith.
In order to recover damages for intentional infliction of emotional distress, a plaintiff
must prove that “(1) the defendant intended to inflict emotional distress or knew or reasonably
should have known that emotional distress was likely to result from such conduct; (2) the
conduct was ‘extreme and outrageous,’ ‘beyond all possible bounds of decency,’ and ‘utterly
intolerable in a civilized community’; (3) the defendant’s conduct proximately caused
plaintiff’s emotional distress; and (4) the distress was so ‘severe that no reasonable man could
be expected to endure it.’ ” Davignon v. Clemmey, 322 F.3d 1, 8 n.2 (1st Cir. 2003) (quoting
Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976)).
7 Although Officer Carlson has not moved for summary judgment on this claim, the Court was inclined
to sua sponte grant judgment in his favor. Because Fed.R.Civ.P. 56(f) provides I must give Deptula notice before
doing so, I will instead advise Plaintiff that he should review his complaint and the factual record in support of
this claim and carefully consider whether to proceed with this claim against Officer Carlson at trial.
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I agree with the Defendants that taking the facts in a light most favorable to Deptula,
there is no evidence to support a finding that their actions rose to the level of extreme and
outrageous conduct beyond all bounds of decency or their alleged behavior that is of the type
that is “utterly intolerable in a civilized community.” Accordingly, Defendants’ motion for
summary judgment on this claim is granted.
Conclusion
It is hereby Ordered that:
1. Defendant’s Motion For Partial Summary Judgment (Docket No. 85), is granted;
and
2. Plaintiff Luke Deptula’s Motion For Partial Summary Judgment on Counts I, Count
II (Docket No. 88) is denied.
/s/ Timothy S. Hillman_____
TIMOTHY S. HILLMAN
DISTRICT JUDGE
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