# Banks v. Town of Plainville

> District Court, D. Massachusetts · December 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10199102

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** December 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199102. Public record. Not legal advice.