Banks v. Town of Plainville

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DAVID BANKS,

Plaintiff,

No. 18-cv-12084-DLC

v.

TOWN OF PLAINVILLE and JAMES

FLOYD, Individually and in his

Official Capacity,

Defendants.

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DONALD L. CABELL, U.S.M.J.

Plaintiff David Banks contends that the Town of Plainville,

MA (the Town) and Plainville Police Detective James Floyd

(Detective Floyd) violated his rights in the course of

investigating an incident outside his home. The defendants move

for summary judgment. (D. 31). For the reasons explained below,

the motion is ALLOWED in part and DENIED in part.

I. FACTS

The following facts are undisputed unless otherwise noted

and are presented in a light most favorable to the plaintiff as

the non-moving party.

A. The July 30, 2016 Altercation

This case has its origins in an incident that occurred at

approximately 2:00 AM on July 30, 2016, outside of the plaintiff’s

Plainville residence. The plaintiff was inside sleeping when he

awoke to the sound of his dogs barking. (D. 38, Plaintiff David

Banks’s Response to Defendant’s Statement of Undisputed Material

Facts in Support of Defendant’s Motion for Summary Judgment (“Pl.’s

SOF”), ¶ 117). The plaintiff got out of bed and looked outside

and saw two cars parked outside of his house, with two individuals

standing beside the cars on the side closest to the house. (Id.,

¶ 120). The plaintiff went outside and heard the two individuals

(later identified as Plainville police officer Julie Barrett and

Detective James Moses) kissing. (Id., ¶¶ 122, 125, 126). A truck

pulled up about 20 minutes later and the driver, later identified

as former North Attleboro Police Sergeant David Gould, verbally

confronted the pair and hit Detective Moses. (Id., ¶¶ 127-129).

The plaintiff’s son Michael returned home from work shortly

thereafter and saw the three vehicles starting to leave. (Id., ¶

130). The plaintiff did not call the police because “it didn’t

involve [him]” and because he did not have license plate

information to report. (Id., ¶ 20).

About a week and a half after the incident, Plainville police

officer William Lamb told defendant Detective Floyd that a physical

altercation had occurred on Old Taunton Street, the street where

the plaintiff resided, and that Officer Barret and Detective Moses

had sustained injuries by Gould. (Id., ¶ 137). On August 17,

2016, Detective Floyd interviewed Detective Moses. Moses

confirmed that Gould had punched him during the July 30th incident

but he (Moses) did not want to pursue charges. (Id., ¶¶ 145, 146).

B. The Plaintiff’s Visit to Town Hall

The plaintiff learned that the individuals involved in the

incident were police officers only after reading it in a newspaper

article, about a month and a half after the incident. (Id., ¶

21). On September 27, 2016, he went to the Plainville Town Hall

to pay his excise tax, and because he wanted to tell the Town

Administrator that he knew “at least one cop was lying to the

media” about the incident.1 (Id., ¶¶ 149, 150). The Town

Administrator was unavailable, so the plaintiff spoke instead with

another town employee, Drusilla Proctor (Proctor).2 (Id., ¶ 151).

The plaintiff told Proctor that “he had witnessed the love-

triangle” and that he had a game camera, although he did not know

if there was anything on it. (Id., ¶ 38). According to the

defendants, the plaintiff also reportedly told Proctor that he had

“cameras”, but the plaintiff denies ever telling her that he had

1 Apparently, a local newspaper accounting of the incident reported that Gould

followed Moses and Barrett to the area outside the plaintiff’s residence and

pulled Moses out of the car. (Pl.’s SOF, ¶ 22). This reporting was

inconsistent with the plaintiff’s recollection that Moses and Barrett were

already out of their cars kissing when Gould showed up, 20-30 minutes later.

(Id., ¶ 23).

2 Proctor passed away on February 18, 2019. (D. 38 at 9 n. 1).

more than one camera. (Defendants Town of Plainville and James

Floyd’s Statement of Undisputed Material Facts in Support of Their

Motion for Summary Judgment (“Defs.’ SOF”), ¶¶ 38, 39; Pl.’s SOF,

¶¶ 39, 153).

Proctor relayed the plaintiff’s statements to Plainville

Police Chief James Alfred the same day and told him “David

Banks...may have information, photos and video regarding an

assault and battery that occurred the morning of July 30, 2016.”

(Id., ¶¶ 155-156).3

C. Detective Floyd’s Investigation

After speaking with Chief Alfred, Detective Floyd called the

plaintiff the same day to investigate. (Pl.’s SOF, ¶ 158). The

plaintiff told Detective Floyd that that he had a surveillance

camera system that he used to deter insurance adjusters but was

not interested in getting involved or providing specific details

of the July 30th incident. (Defs.’ SOF, ¶¶ 50-52, 159). Detective

Floyd went to the plaintiff’s home that same afternoon but neither

the plaintiff nor his son would speak with him. (Pl.’s SOF, ¶

161).

Detective Floyd went to the plaintiff’s home a few days later

and observed a camera in the plaintiff’s front window, pointing in

the direction of the driveway in front of the house where the July

3 Detective Floyd maintains that Chief Alfred told him that Proctor reported

that the plaintiff stated more affirmatively that he “did” have video and

photos of the incident. (Defs.’ SOF, ¶ 46).

30th incident occurred. (Defs.’ SOF, ¶¶ 54-55). The plaintiff

admits to telling Detective Floyd that “he had a surveillance

system” but asserts that his game camera pointing at the driveway

captured only about a foot’s worth of the street in its frame.

(Pl.’s SOF, ¶¶ 50, 176).

According to Detective Floyd, Proctor contacted him on

October 3, 2016 and told him that the plaintiff had told her that

he had photos and videos of the July 30th, 2016 incident, and again

reiterated that he had cameras to deter private investigators

looking into his personal life. (Defs.’ SOF, ¶¶ 56-57). The

plaintiff disputes that he ever said these things to Proctor.

(Pl.’s SOF, ¶¶ 56-57).

D. The Search Warrant Affidavit

On October 5, 2016, Detective Floyd submitted an affidavit in

support of a warrant to search the plaintiff’s residence for

electronically stored surveillance video of the July 30th incident.

Detective Floyd averred among other things that: (1) the plaintiff

told Proctor on September 27, 2016 that he “may have information,

photos and video” regarding the incident; that (2) the plaintiff

on or about the same day told Detective Floyd over the telephone

that he did not want to “get involved or provide a copy of photos

or video that he had captured with his home surveillance system”;

that (3) Detective Floyd went to the plaintiff’s residence that

same day to speak with him and saw “an infrared camera in the front

window capturing the driveway area”; that (4) Proctor subsequently

told Detective Floyd on October 3, 2016 that the plaintiff had

told her he had “saved” photos and video of the incident by virtue

of CCTV cameras installed at the residence; and that (5) the

plaintiff said he had “electronically saved still photos he

captured along with video from his CCTV home security system” and

“admitted to utilizing a storage device to save photos and video

of the incident”. (D. 33-8). A Dedham District Court official

subsequently granted the request. (Defs.’ SOF, ¶¶ 58-59).

E. Executing the Search Warrant

Detective Floyd and other members of the Plainville Police

Department executed the search warrant on the evening of October

5, 2016. (Id., ¶¶ 184, 185). Among other things, they seized two

cameras in the windows as well as storage devices in the home.

(Defs.’ SOF, ¶ 75). The plaintiff maintains that while Detective

Floyd stated that “some” cameras were “hooked up”, the cameras

were never hooked up to a computer and those in the windows were

never operational. (Pl.’s SOF, ¶¶ 189-191). The officers also

seized a hard drive, HP computer tower, and an I-pad. (Id., ¶

198).

In addition to electronics, the officers also found and

removed from the home two rifles, four shotguns and a handgun.

(Id. ¶ 193). The rifles and shotguns were determined to belong to

another occupant of the residence, but the handgun was found in a

closed dresser drawer in the plaintiff’s bedroom. (Id. ¶¶ 194,

195). According to the plaintiff, the handgun was in his ex-

wife’s bureau, was missing its clip, and was an inoperable antique.

The plaintiff was never charged in connection with the handgun.

(Id., ¶¶ 79, 109, 196).

No evidence relating to the July 30th altercation was found

during the search. (Defs.’ SOF, ¶ 83; Pl.’s SOF, ¶ 197).

F. Aftermath of the Search

Detective Floyd noted that the plaintiff had an “old” open

restraining order and three prior OUI convictions. (Pl.’s SOF, ¶¶

202-203). Based on this information, Detective Floyd believed

that the plaintiff was prohibited from obtaining a license to carry

a firearm, under both state law (M.G.L. c. 140, § 131(d)(i)) and

federal law (18 U.S.C. § 922(g)(1)). (Id., ¶ 204). Detective

Floyd spoke with the plaintiff by telephone following the search

and asked him to come to the police station.

The plaintiff claims that Detective Floyd brought up the gun

during the phone conversation, and Detective Floyd admits to having

told the plaintiff something to the effect that “if there was a

crime committed using that firearm, Banks would be liable or

potentially charged”. (33-1, Banks Depo., at 108; 38-4, Floyd

Depo., at 109).

The plaintiff claims that he did not want to be interviewed

and only agreed because [Floyd] has this hanging over my head, you

own that and all of this...I’m not licensed for a gun and I was

nervous about that.” (33-1, Banks Depo., at 107.)

During an interview on October 6, 2016, Detective Floyd asked

the plaintiff both about the July 30th incident and the gun. When

asking about the gun, Detective Floyd stated, “when we run the

serial numbers through ATF...you own whatever it is.” (D.33-3,

Banks Interview Transcript, at 28-29). The plaintiff alleges that

he felt intimidated because he did not trust the Plainville police

and that he “figured with all that they were trying to pull and

everything, that [Floyd is] going to try and get me locked up for

[the gun].” (33-1, Banks Depo., at 113.). The plaintiff felt

Detective Floyd was trying to “coerce him into testifying about

the love triangle incident” and he “wasn’t going to do it.” (Id.).

Detective Floyd also questioned the plaintiff about the July

30th incident, and the plaintiff expounded on his prior statements

to police and others as to whether he in fact possessed any

audio/video evidence of the July 30th altercation. He said, among

other things, “Well, I split hairs before. I never said that I

had videos or anything; I said that I had cameras.” (Pl.’s SOF,

¶¶ 208-210; Defs.’ SOF, ¶¶ 91, 93). He added, “Well, I got the

cameras. And I’m saying to myself, [t]hey don’t know what’s on

them. Let them think there’s something on them, see how they feel.

You know what I mean? Let me frustrate them and see how they feel.

Was it right? Looking back, no, it wasn’t. Did it make me feel

better? Yeah, it did...” (Defs.’ SOF, ¶ 92).

The plaintiff alleges that after the interview, the pending

gun charge was purposefully left as “under investigation” for the

purpose of being used as leverage to compel him to testify at the

trials of Gould and Moses and the Civil Service Appeal of Gould.

(Pl.’s SOF, ¶ 221). The plaintiff states, and the defendants have

not refuted, that the plaintiff was summonsed to appear at the

hearings. (D. 1-1 ¶ 59).

II. LEGAL STANDARD

When the court is presented with a motion for summary

judgment, it shall grant it “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

moving party bears the initial burden of “assert[ing] the absence

of a genuine issue of material fact and then support[ing] that

assertion by affidavits, admissions, or other materials of

evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003). Once the moving party meets that burden,

in order to avoid summary judgment, the opposing party must “show

that a factual dispute does exist, but summary judgment cannot be

defeated by relying on improbable inferences, conclusory

allegations, or rank speculation.” Fontanez-Nunez v. Janssen

Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (quoting Ingram v.

Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)). Indeed, the

opposing party must “produce specific facts, in suitable

evidentiary form, to establish the presence of a trialworthy

issue.” Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)

(quoting Triangle Trading Co. v. Robroy Indus. Inc., 200 F.3d 1,

2 (1st Cir. 1999)).

When determining whether summary judgment is appropriate, “a

court must view the record in the light most favorable to the

nonmoving party and give that party the benefit of all reasonable

inferences in its favor.” Id. (citing Nicolo v. Philip Morris,

Inc., 201 F.3d 29, 33 (1st Cir. 2000)). “Where the record taken

as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Scott v.

Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal

quotation marks omitted).

III. DISCUSSION

The complaint asserts three claims. Count I alleges a

violation of 42 U.S.C 1983 against both defendants for conducting

an unlawful search and seizure in violation of the plaintiff’s

Fourth Amendment rights. Counts II and III allege claims against

Detective Floyd for violation of the Massachusetts Civil Rights

Act (MCRA) and for intentional infliction of emotional distress,

respectively.

A. Count I — Violation of 42 U.S.C. § 1983

Section 1983 “is not itself a source of substantive rights,

but merely provides a method for vindicating federal rights

elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94

(1989). Count I alleges that the defendants violated the

plaintiff’s Fourth Amendment right to be free from an unreasonable

search and seizure because Detective Floyd, knowing he lacked

probable cause to obtain a warrant, “knowingly made false and

distorted allegations of material facts” in his affidavit in order

to obtain one.4

Focusing first on Detective Floyd, he argues that summary

judgment is appropriate because he enjoys qualified immunity for

his conduct. Qualified immunity shields federal and state

officials from money damages unless a plaintiff pleads facts

showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v.

4 Although Count I from its heading alleges just a “VIOLATION OF 42 U.S.C. §

1983”, the complaint asserts in the text that follows that the defendants

also violated the “Massachusetts Declaration of Rights”. This reference to

the state constitution appears to be inadvertent surplusage where the parties

have consistently treated Count I as alleging only a violation of § 1983.

Similarly, the complaint asserts that the defendants “exceeded the scope of

authority permitted by the warrant”. This language also appears to be

misplaced surplusage where the plaintiff does not argue anywhere that

officers exceeded the scope of the warrant assuming it was properly issued.

This argument would fail in any event where the warrant, assuming it was

properly issued, entitled the officers to search anywhere in the residence

where computers, tablets and other electronically stored devices could

reasonably be found. See, e.g., U.S. v. Peake, 804 F.3d 81, 87 (1st Cir.

2015).

al–Kidd, 563 U.S. 731 (2011) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). Courts have discretion to decide which

qualified immunity prong to address first. Pearson v. Callahan,

555 U.S. 223, 236 (2009).

The Fourth Amendment provides that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath

or affirmation...” U.S. Const. amend. IV. The Fourth Amendment’s

probable cause requirement is violated when a false statement is

knowingly and intentionally, or with a reckless disregard for the

truth, included by the affiant in a warrant affidavit, provided

the false statement is material, that is, necessary for a finding

of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56

(1978). A statement is not material if, after eliminating it, the

corrected affidavit would still have supported a finding of

probable cause. Burke v. Town of Walpole, 405 F.3d 66, 82 (1st

Cir. 2005).

As there can be no dispute that the right to be free from a

search warrant obtained through fabricated evidence was well

established at the time of the incident, see e.g., Aponte Matos v.

Toledo-Davila, 135 F.3d 182 (1st Cir. 1998), the court need only

consider whether or not the record supports a finding that

Detective Floyd violated the plaintiff’s constitutional rights in

seeking a warrant to search his residence.

Broadly speaking, the plaintiff argues that Detective Floyd’s

affidavit was deficient in two principal ways. First, he included

information of questionable veracity obtained from Proctor during

an October 3rd interview, namely that the plaintiff had admitted

to having and saving photos and videos of the incident.5 The

plaintiff argues that Detective Floyd had a basis to doubt the

veracity of this information because it was more fulsome than the

information Proctor had provided him previously, calling at a

minimum for corroboration before using it. Second, Detective Floyd

included knowingly false and/or misleading statements to bolster

his application. As an example, Detective Floyd reportedly

“aggrandized” his phone conversation with the plaintiff by falsely

stating that the plaintiff had admitted to having photos and

videos, which the plaintiff denies, and included contradictory

assertions as to whether a camera visible in the plaintiff’s front

window was “infrared” or sufficiently positioned to capture the

events in question.

5 According to the affidavit, Proctor initially contacted a Town official on

September 27, 2016 to report that the plaintiff told her he might have photos

and videos of the incident, but then reportedly told Detective Floyd during

their October 3rd interview that plaintiff affirmatively said he had saved

“photos and videos” of the incident by virtue of a “CCTV home security

system” he had installed to deter insurance investigators. Compare D.33-8,

Search Warrant Aff., ¶ 13 with ¶¶ 15-16.

The plaintiff’s allegations of improper police conduct are

concerning if true. That being said, it is not necessary to

resolve his claims for purposes of Count I because, even assuming

the challenged statements in the affidavit were deemed false, and

thus removed from consideration, the remaining information in the

affidavit was sufficient to establish probable cause to believe

that evidence of the July 30th incident would be found inside the

plaintiff’s residence.

In particular, there is no dispute that the plaintiff

affirmatively told Proctor, someone he knew to be a Town employee

and wanted to convey his information, that he witnessed the July

30th incident, that he had a camera at the property, and that he

“may have photos and video” of the incident. There is also no

dispute that Proctor conveyed that information to the police

department. There is further no dispute that the plaintiff (at a

minimum) told Detective Floyd the same day that he had witnessed

the events and had a surveillance system at the property, and that

Detective Floyd went to the plaintiff’s residence and saw a camera

in a window. Finally, the plaintiff acknowledges that, even

assuming he did not make the statements Detective Floyd attributed

to him, he nonetheless allowed officers to infer that one or more

cameras on his property may have filmed or photographed the

incident.6

Against this backdrop, the court finds that there was probable

cause for the search warrant to issue even absent the challenged

statements. Put most simply, the plaintiff admitted that he

observed the incident, indicated to multiple persons that he had

one or more cameras on the property, suggested implicitly that the

camera(s) may have captured the incident, and in fact had a camera

in his front window looking outward. These facts were sufficient

to provide probable cause to support a warrant to search the

residence for electronic or photographic evidence. Accordingly,

the issuance and execution of the search warrant did not violate

the plaintiff’s Fourth Amendment rights. See e.g., U.S. v. Ruffin,

664 Fed. App’x. 224, 227 (3d Cir. 2016) (unpublished) (affirming

reasonableness of search warrant where officer observed

surveillance system mounted to defendant’s home but “did not know

whether the [defendant’s] cameras were operational or fake, were

6 The plaintiff, when deposed, admitted to purposefully engaging in a campaign

of “hair splitting” in an attempt to make the police and others believe that

he had more than one camera on his property. D. 33-3 at 17. (“Well, I split

hairs before. I never said that I had videos or anything; I said that I had

cameras. And I told the chief, I says, you don't have to worry about anybody

seeing any films. I didn't tell him because they don't exist, but again, I

shouldn't have split the hair, but I did”). The plaintiff also allowed

police to believe that his camera or cameras did indeed have footage. D. 33-

3 at 24. (“Well, I got the cameras. And I’m saying to myself, they don’t

know what’s on them. Let them think there’s something on them, see how they

feel. You know what I mean? Let me frustrate them and see how they feel.

Was it right? Looking back, no, it wasn’t. Did it make me feel better?

Yeah, it did, you know?”).

connected to an analog or digital system, recorded or streamed a

live feed, or had been tampered with since the date of the [alleged

crime].” Detective Floyd is therefore entitled to summary judgment

on Count I.

Turning to the Town, no protracted discussion is necessary;

it too is entitled to summary judgment on Count I where Detective

Floyd did not violate the plaintiff’s civil rights in obtaining

the search warrant.7 See Evans v. Avery, 100 F.3d 1033, 1040 (1st

Cir. 1996) (municipality cannot be held liable absent a

constitutional violation by its officers).

B. Count II — Massachusetts Civil Rights Act (MCRA)

Count II alleges that Detective Floyd interfered with the

plaintiff’s enjoyment of his federal and state civil rights in

violation of the Massachusetts Civil Rights Act (MCRA), M.G.L.

c.12, §11(1). Count II is predicated on both the application for

and execution of the warrant, as well as the events that transpired

after the search.

To state a claim under the MCRA, a plaintiff must show that

(1) his exercise or enjoyment of rights secured by the constitution

or laws of either the United States or the Commonwealth of

7 The Town would be entitled to summary judgment on this record even assuming

Detective Floyd acted improperly as alleged. In order for a municipality to

be held liable under 42 U.S.C. §1983, a plaintiff must show that the

municipality had a policy or custom that resulted in the alleged

constitutional violation. Santiago v. Fenton, 891 F.2d 373, 381 (1st. Cir.

1989). The complaint here does not allege the existence of such a policy or

custom and the plaintiff has failed in any event to adduce evidence of one.

Massachusetts (2) has been interfered with, or attempted to be

interfered with, and (3) that the interference or attempted

interference was by threats, intimidation or coercion. Barbosa v.

Conlon, 962 F. Supp. 2d 316, 331–32 (D. Mass. 2013) (internal

quotations and citations omitted). The MCRA is coextensive with

42 U.S.C. § 1983 except that the MCRA does not require any state

action and does require a violation by threats, intimidation or

violence. Kelly v. LaForce, 288 F.3d 1, 10 (1st. Cir. 2002).

Without repeating its discussion regarding Count I, the court

finds for the same reasons that Detective Floyd is entitled to

summary judgment on the MCRA claim to the extent the claim alleges

he disingenuously sought and obtained a search warrant in violation

of the plaintiff’s rights.

However, the plaintiff has presented sufficient evidence to

survive summary judgment on his claim that Detective Floyd,

following the search, used the recovered firearm to threaten or

intimidate him into assisting the police with the ongoing

investigation of the July 30th incident. More specifically, the

plaintiff has adduced evidence that he remained steadfastly

opposed to assisting the police with their investigation and that

Detective Floyd, aware of his reluctance, suggested the plaintiff

could be prosecuted for possession of the firearm found during the

search or for any crime with which the gun might be found to be

linked.

In the court’s view, the facts supporting the MCRA claim are

not exceptionally compelling but the claim survives summary

judgment because a factfinder crediting all of the facts in the

plaintiff’s favor could reasonably conclude from the sequence and

timing of events that Detective Floyd knew the plaintiff did not

want to cooperate in the July 30th investigation and held the

prospect of further criminal investigation or prosecution

regarding the firearm over the plaintiff’s head in order to obtain

his cooperation. See Sanchez v. City of Boston, 2011 WL 5508929,

No. 10-11075-RGS, *2, n. 1 (D. Mass. November 10, 2011) (observing

that use of threats of arrest and criminal charges to procure

cooperation arguably makes out a claim under the MCRA).

The defendants argue that there is no evidence that Detective

Floyd had the specific intent to interfere with the plaintiff’s

civil rights. Even assuming that is true, however, the MCRA may

be violated “regardless of whether the defendant specifically

intended to interfere with a right to which the plaintiff is

entitled.” Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass.

93, 100 (1987); see also Reproductive Rights Network v. President

of Univ. Mass., 699 N.E.2d 829, 838 (Mass. App. Ct. 1998) (“[W]e

are unwilling to assume that the Legislature intended to require

proof that an actor specifically intended to deprive a person of

a secured right by threats, intimidation, or coercion.”). It is

enough if “the natural effect of the defendant’s action was to

coerce [the plaintiffs] in the exercise of [their] rights.”

Redgrave, 399 Mass. at 99. As the record supports such a claim

here, the motion for summary judgment is denied with respect to

Count II.

C. Count III — Intentional Infliction of Emotional Distress

Count III alleges that Detective Floyd “intentionally and/or

recklessly” inflicted emotional distress on Banks. A claim of

intentional infliction of emotional distress (IIED) requires the

plaintiff to show (1) that the defendant intended, knew, or should

have known that his conduct would cause emotional distress; (2)

that the conduct was extreme and outrageous; (3) that the conduct

caused emotional distress; and (4) that the emotional distress was

severe. Bettencourt v. Town of Mendon, 334 F. Supp. 3d 468, 487

(D. Mass. 2018).

As with Count II, the court finds for essentially the same

reasons that, while the facts supporting an IIED claim may not be

overwhelming, the plaintiff has adduced enough evidence, even if

just enough, to survive summary judgment. Among other things, a

factfinder crediting all of the evidence, including the

plaintiff’s as yet untested contention that Detective Floyd never

intended to charge the plaintiff with any offenses connected to

the firearm, never had a genuine basis to charge him with any

offense(s), and in fact did not charge him with any such offenses,

could reasonably conclude that Detective Floyd improperly used his

position to threaten a baseless prosecution to exploit the

plaintiff’s vulnerable position and obtain his cooperation. Such

facts, if true, could in the court’s view support a finding of

extreme and outrageous conduct likely to cause emotional distress.

Summary judgment is therefore denied on Count III.

IV. CONCLUSION

For the foregoing reasons, the Defendants’ Motion for Summary

Judgment (D. 31) is ALLOWED in part and DENIED in part.

Specifically, the motion is ALLOWED with respect to Count I in

favor of defendant James Floyd and the Town of Plainville. The

complaint is accordingly dismissed against the Town of Plainville

where it is named only in Count I. The motion is DENIED with

respect to Counts II and III.

Because the court has granted summary judgment for the

defendants on the plaintiff's sole federal claim, the remaining

state law claims would be remanded to state court in the normal

course. Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir.

2017). However, where the parties here have already engaged in

significant briefing on the issues of this case, the court will

retain jurisdiction over the remaining state law claims. See,

e.g., McGinn v. Exec. Office of Energy & Envtl. Affairs, No. 19-

CV-11551-IT, 2020 WL 6263648, at *1 (D. Mass. Oct. 23,

2020) ("[w]here the parties have briefed and argued at hearing

Defendants’ motions to dismiss the remaining state law claims,

concerns about comity do not outweigh the pragmatic benefits of

adjudicating, in full, the motions that are presently before this

court.").

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: December 11, 2020