Debisschop v. Longmeadow, Town of

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RUTH DEBISSCHOP, )

)

Plaintiff, )

)

v. ) Case No. 3:19-cv-30078-KAR

)

TOWN OF LONGMEADOW, )

CARL MAZZAFERRO II and )

EWEN MACEACHEM1 )

)

Defendants. )

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT

(Docket No. 25)

ROBERTSON, U.S.M.J.

I. INTRODUCTION

Plaintiff Ruth DeBisschop ("Plaintiff") was arrested by Longmeadow Police Sergeant

Carl Mazzaferro II and Longmeadow Police Detective Ewen MacEachern (collectively,

"Defendants") for disorderly conduct and two counts of assault and battery on a police officer in

the aftermath of Plaintiff's grandson's arrest at the Pride Gas Station ("Pride Station") on

Longmeadow Street on August 3, 2016. Plaintiff's complaint states three federal causes of action

against Defendants under 42 U.S.C. § 1983: unlawful arrest (Count I); use of excessive force

(Count II); and cruel and unusual punishment (Count III). Plaintiff's pendant state law claims are

assault and battery (Count IV), false arrest (Count V), malicious prosecution (Count VI), abuse

of process (Count VII), and negligence by the Town of Longmeadow ("Town") (Count VIII)

1 The court will use the correct spelling of Defendant MacEachern's surname (Dkt. No. 27-6 at

6).

(Dkt. No. 1). Plaintiff voluntarily dismissed Count III with prejudice (Dkt. No. 23). Defendants

have moved for summary judgment on all remaining claims. Plaintiff does not oppose

Defendants' motion for summary judgment on her claim for negligence against the Town (Count

VIII) (Dkt. No. 25; Dkt. No. 32 at 1 n.1). The parties have consented to this court's jurisdiction

(Dkt. No. 11). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons that follow,

Defendants' motion for summary judgment is DENIED.

II. FACTUAL BACKGROUND2

A. Plaintiff's Grandson's Arrest

On August 3, 2016, Plaintiff's grandson, B.G., lived at 100 Breckwood Drive in

Longmeadow with Plaintiff (Dkt. No. 27 ¶¶ 10, 16). At approximately 9:49:18 A.M.,

Mazzaferro, an eight-year veteran of the Longmeadow Police Department, and MacEachern, a

five-year veteran of the department, were across the street from the Pride Station conducting

surveillance for reported narcotics activity at that location when Mazzaferro observed a four-

door tan Toyota with West Virginia license plates pull up to a gas pump ((Dkt. No. 27 ¶¶ 19, 21;

Dkt. No. 27-4 at 18; Dkt. No. 27-6 at 9; Dkt. No. 31 ¶¶ 1-4). The driver, B.G., with whom

Mazzaferro was familiar, exited from the vehicle, entered the Pride Station convenience store,

returned to the Toyota and leaned into the driver's side window before he ran south into Enfield,

2 Defendants' exhibits to their Local Rule 56.1 Statement of Material Facts included the Pride

Station's CCTV video recording of the events at issue, "Dkt. No. 27-11," and the audio and video

recording of Plaintiff's booking at the Longmeadow Police Department, "Dkt. No. 27-12." The

authenticity of the recordings is not in dispute. "[W]hen the record contains video evidence, the

authenticity of which is not challenged, the court should ordinarily view the facts 'in the light

depicted by the video evidence.'" O'Brien v. Town of Bellingham, 943 F.3d 514, 531 (1st Cir.

2019) (quoting Underwood v. Barrett, 924 F.3d 19, 20 (1st Cir. 2019) (per curiam)). The times

noted herein are based on the video recordings.

Connecticut (Dkt. No. 27 ¶¶ 20, 21; Dkt. No. 27-11 at 9:49:31 A.M. to 9:54:07 A.M.; Dkt. No.

31 ¶¶ 6, 9).3 B.G. briefly returned to the Toyota. He then went into the convenience store and

used the store's telephone (Dkt. No. 27-11 at 9:58:07 A.M.).

E.S. was in the front passenger's seat of the Toyota (Dkt. No. 27 ¶ 29; Dkt. No. 31 ¶ 8).

At 9:59:11 A.M., a police officer, who was wearing a bright yellow shirt, approached the Toyota

and appeared to engage E.S. in conversation (Dkt. No. 27-11; Dkt. No. 31 ¶ 11). B.G. left the

convenience store and joined the officer at the front passenger's side window of the Toyota at

9:59:42 A.M. (Dkt. No. 27-11). MacEachern approached the Toyota shortly after B.G. arrived

back at the car and asked E.S. if there were drugs in the vehicle (Dkt. No. 31 ¶¶ 12, 13). When

she answered, "no," MacEachern looked into the car through the driver's side window (Dkt. No.

27-11 at 10:02:42 A.M. to 10:03:10 A.M.; Dkt. No. 31 ¶ 13).

Mazzaferro, who was in uniform, arrived at the Pride Station at 10:03:53 A.M. (Dkt. No.

27-4 at 66-67; Dkt. No. 27-11; Dkt. No. 31 ¶ 14). He spoke to B.G. in response to a report that

there was an intoxicated man in the convenience store (Dkt. No. 27 ¶ 22; Dkt. No. 31 ¶ 7).

Because B.G. manifested indicia of narcotics use and stated that he had taken methadone or

suboxone, Mazzaferro conducted field sobriety tests, which B.G. failed (Dkt. No. 27 ¶¶ 26, 27;

Dkt. No. 31 ¶¶ 17, 18, 19). Mazzaferro arrested B.G. for operating under the influence of

narcotics (Dkt. No. 27 ¶ 28; Dkt. No. 31 ¶ 21). B.G. "'started yelling to [E.S.] to drive the car'"

or "'don't let them take the car'" (Dkt. No. 31 ¶ 22). A Longmeadow officer transported B.G.

from the Pride Station at 10:21:37 A.M. (Dkt. No. 27-11).

B. The Search of the Toyota

3 The Pride Station is located at the state line between Massachusetts and Connecticut (Dkt. No.

27-9 at 8).

Because E.S. did not have a valid driver's license, Defendants decided that the Toyota

should be towed (Dkt. No. 27 ¶¶ 30, 31; Dkt. No. 31 ¶¶ 24, 25). At approximately 10:22 A.M.,

Defendants began taking inventory of the contents of the vehicle as required by the Longmeadow

Police Department's Towed Vehicle Inventory Policy (Dkt. No. 27 ¶¶ 32, 33; Dkt. No. 27-3 at

11-12; Dkt. No. 27-11; Dkt. No. 31 ¶¶ 25, 31). E.S. remained seated in the front passenger's seat

of the Toyota (Dkt. No. 31 ¶ 31). MacEachern opened the back passenger door and Mazzaferro

entered the front driver's side (Dkt. No. 31 ¶¶ 31, 32). At 10:25:29 A.M., E.S. got out of the car

and walked toward the convenience store (Dkt. No. 27-11; Dkt. No. 31 ¶ 33). Mazzaferro also

exited the vehicle (Dkt. No. 31 ¶ 33).

At 10:25:45 A.M., MacEachern emerged from the Toyota and began speaking to a Pride

Station employee who stood near the front passenger's side door while she described B.G.'s

problematic behavior inside the store before the officers arrived (Dkt. No. 27-11; Dkt. No. 31 ¶¶

34, 35). At 10:27:18 A.M., the Toyota's front and back passenger's side doors were open as

MacEachern continued his conversation with the clerk (Dkt. No. 27-11). MacEachern leaned

into the front passenger's side of the car at 10:27:26 A.M. and again at 10:28:24 A.M. (Dkt. No.

27-11). The Pride Station clerk left MacEachern and the Toyota at 10:28:55 A.M. (Dkt. No. 27-

11).

Meanwhile, Mazzaferro found a black backpack on the back seat that contained empty

methadone bottles with B.G.'s name on them and an orange pill bottle (Dkt. No. 31 ¶ 36). Inside

the pill bottle, Mazzaferro found a bundle of empty wax paper bags that were bound together

with an elastic band (Dkt. No. 31 ¶ 36). Mazzaferro recognized the bundle as the way heroin

was packaged and testified that the bags contained a "white powdery substance" (Dkt. No. 27-9

at 17, 29; Dkt. No. 31 ¶ 37). After Mazzaferro placed the orange pill bottle on the roof of the

car, MacEachern reached across the roof to examine it, then returned it to the roof (Dkt. No. 27-

11 at 10:28:29 A.M. to 10:28:46 A.M.; Dkt. No. 30-3 ¶¶ 63, 64, 65; Dkt. No. 31 ¶¶ 38, 39). At

10:30:35 A.M., MacEachern closed the back passenger's door and went to the driver's side of the

Toyota (Dkt. No. 27-11). The front passenger's side door remained open (Dkt. No. 27-11).

Defendants recovered narcotics and drug paraphernalia from under the front passenger's

seat (Dkt. No. 27 ¶ 35; Dkt. No. 30 ¶ 35; Dkt. No. 31 ¶ 45). E.S. was charged with possession of

narcotics (Dkt. No. 31 ¶ 46).

C. Plaintiff's Arrival at the Pride Station

B.G. was a drug addict with a history of substance abuse (Dkt. No. 27 ¶ 44). Plaintiff

knew that B.G. made daily trips to a methadone clinic with his girlfriend, K.W. (Dkt. No. 27 ¶

43; Dkt. No. 27-1 at 70). On August 3, 2016, K.W. called Plaintiff "in a panic" and asked

Plaintiff to come to the Pride Station immediately (Dkt. No. 27 ¶ 38; Dkt. No. 31 ¶¶ 26, 27).

K.W. reported that the police "had" B.G. and the Toyota was being towed from the Pride Station

(Dkt. No. 27 ¶ 38; Dkt. No. 30 ¶ 37; Dkt. No. 31 ¶ 27).

Neither B.G. nor Plaintiff owned the Toyota (Dkt. No. 27 ¶¶ 39, 40). Although Plaintiff

believed that K.W. owned the car, it was registered to K.W.'s grandfather, Edward Monroe of

West Virginia (Dkt. No. 27 ¶ 42; Dkt. No. 27-4 at 45-46; Dkt. No. 30 ¶ 41; Dkt. No. 31 ¶ 23).

Plaintiff went to the Pride Station in response to K.W.'s phone call (Dkt. No. 27 ¶ 45;

Dkt. No. 31 ¶ 29). The Pride Station was extremely busy and Plaintiff observed "many people

around" (Dkt. No. 27 ¶¶ 47, 48). At 10:30:41 A.M., she proceeded across the parking lot toward

the "commotion" near the Toyota that was parked at a gas pump (Dkt. No. 27 ¶¶ 45, 46, 49; Dkt.

No. 27-11). Plaintiff did not see B.G., but saw Defendants standing outside the Toyota:

Mazzaferro was at the car's trunk; and MacEachern was standing at the open driver's side door

(Dkt. No. 27 ¶ 49; Dkt. No. 27-11 at 10:30:41 A.M.; Dkt. No. 30 ¶ 52; Dkt. No. 30-3 ¶ 72).

Plaintiff recognized Defendants as police officers (Dkt. No. 27 ¶¶ 11-15; Dkt. No. 30 ¶¶ 11-15).

Some of the vehicle's contents were on top of the Toyota (Dkt. No. 27 ¶ 53; Dkt. No. 30 ¶ 53;

Dkt. No. 30-3 ¶ 65; Dkt. No. 31 ¶¶ 38, 39). Plaintiff continued walking toward the Toyota (Dkt.

No. 27-11 at 10:30:44 A.M.).

D. Plaintiff's Arrest

Defendants recognized Plaintiff as she approached them and the Toyota (Dkt. No. 27 ¶¶

52, 57; Dkt. No. 30 ¶ 52). Defendants told Plaintiff to leave (Dkt. No. 27 ¶ 56; Dkt. No. 30 ¶¶

55, 64). Plaintiff did not comply with Defendants' instructions and continued to approach them

and the car (Dkt. No. 27 ¶¶ 58, 59). She claims that she told the officers that she would leave if

they told her B.G.'s location (Dkt. No. 30 ¶¶ 55, 58, 64, 65; Dkt. No. 31 ¶ 52).

When Plaintiff got within five or ten feet of the Toyota at 10:30:47 A.M., Mazzaferro

stepped between her and the car and faced her to prevent her from reaching it (Dkt. No. 27 ¶ 67;

Dkt. No. 27-11; Dkt. No. 30 ¶¶ 69, 73; Dkt. No. 31 ¶ 53). At 10:30:54 A.M. MacEachern joined

Mazzaferro and stood to his left and to Plaintiff's right (Dkt. No. 27-11; Dkt. No. 30 ¶¶ 69, 73;

Dkt. No. 31 ¶ 53). Defendants blocked Plaintiff's direct path to the Toyota (Dkt. No. 27 ¶ 67).

The parties' accounts differ significantly at this point. Plaintiff "recall[ed] trying to

continue on" (Dkt. No. 27 ¶ 70). According to Plaintiff, as she started to step to her left to go

around Mazzaferro's right side, MacEachern began to "pursue" her and Mazzaferro moved "to

prevent Plaintiff from walking around him" (Dkt. No. 27-11 at 10:30:58.544 A.M., 10:30:59.153

A.M.; Dkt. No. 30 ¶ 69; Dkt. No. 31 ¶¶ 54. 55, 56). Plaintiff did not believe that she touched

either officer (Dkt. No. 30 ¶ 74). By contrast, Defendants contended that Plaintiff initiated

contact with them as she continued advancing toward the Toyota (Dkt. No. 27 ¶¶ 69, 71, 72).

The parties agree that the officers then seized Plaintiff and placed her under arrest for disorderly

conduct and two counts of assault and battery on a police officer (Dkt. No. 27 ¶ 91; Dkt. No. 30

¶¶ 69, 72).

Plaintiff alleges that Defendants "slammed" her face into the side of a truck that was

parked at the gas pump behind them as Defendants handcuffed her behind her back (Dkt. No. 30

¶ 75; Dkt. No. 31 ¶ 57). Defendants deny that claim (Dkt. No. 27 ¶ 75). The Pride Station video

shows that the physical encounter between Plaintiff and Defendants transpired over less than one

minute (Dkt. No. 27 ¶ 77; Dkt. No. 27-11 at 10:30:41 A.M. to 10:31:23 A.M.).

E. Plaintiff's Booking

Plaintiff was transported to the Longmeadow Police Department where she was booked

(Dkt. No. 27 ¶¶ 76, 80, 84). While awaiting booking, Plaintiff said to B.G., "I've done nothing,"

"resisted," "not turning around and leaving" (Dkt. No. 27-12 at 10:47:11 A.M.; Dkt. No. 30 ¶

90).

The Longmeadow Police Department's booking procedure requires an inquiry into

whether the arrestee has any injuries (Dkt. No. 27 ¶ 82). If an arrestee is injured, the injuries will

be treated (Dkt. No. 27 ¶ 83). During booking, Plaintiff did not report that she was injured or

required treatment (Dkt. 27 ¶ 94). She now states that she sustained a laceration on her left

eyebrow and bruises to her right wrist from the handcuffs (Dkt. No. 27 ¶¶ 92, 93). The booking

video shows Plaintiff using her right hand to sign papers and there are no visible injuries to her

wrist or face (Dkt. No. 27 ¶¶ 95, 96, 97, 98; Dkt. No. 27-12 at 10:53).

F. Proceedings in the Springfield District Court

On August 4, 2016, Plaintiff was arraigned in the Springfield District Court on one count

of disorderly conduct and two counts of assault and battery on a police officer (Dkt. No. 27 ¶

109; Dkt. No. 31 ¶ 58). A nolle prosequi was entered on both charges on November 22, 2016

(Dkt. No. 27 ¶ 110; Dkt. No. 31 ¶ 59).

III. LEGAL STANDARD

The purpose of summary judgment is "'to pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.'" Garside v. Osco Drug, Inc., 895 F.2d 46,

50 (1st Cir. 1990) (citation omitted). "Summary judgment is appropriate when, based on the

pleadings, discovery, and disclosure materials in the record, 'there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law.'" Ruggiero v. Am.

United Life Ins. Co., 137 F. Supp. 3d 104, 111 (D. Mass. 2015) (quoting Fed. R. Civ. P. 56(a),

(c)). "A 'genuine' dispute is one that, based on the supporting evidence, 'a reasonable [fact

finder] could resolve . . . in favor of the nonmoving party,' and a 'material' fact is one that has 'the

potential to affect the outcome of the suit under the applicable law.'" Id. at 111-12 (quoting

Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (citations and quotation marks omitted)).

When reviewing a motion for summary judgment, the court views the facts "in the light

most favorable to the non-moving party." Zambrana–Marrero v. Suarez–Cruz, 172 F.3d 122,

125 (1st Cir. 1999). "If the moving party satisfies the burden of showing, based on evidentiary

material, that there is no genuine issue of material fact, the burden shifts to the nonmoving party

to demonstrate by reference to specific provable facts 'that a reasonable jury could return a

verdict for the nonmoving party.'" Ruggiero, 137 F. Supp. 3d at 112 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). "[C]onclusory allegations, improbable inferences, and unsupported speculation" are

insufficient to establish a genuine dispute of material fact. Medina–Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

IV. ANALYSIS

Plaintiff's remaining claims fall into three broad categories: those based on the alleged

absence of probable cause for her arrest (Counts I and V); those based on Defendants' purported

use of excessive force (Counts II and IV); and those arising from Plaintiff's prosecution in the

Springfield District Court (Counts VI and VII). The court addresses the separate claims in each

category in turn.

A. Counts I and V: Claims Based on Plaintiff's Arrest

1. Count I: Unlawful Arrest Under § 1983

Plaintiff asserts claims under 42 U.S.C. § 1983 (Dkt. No. 1, Counts I and II). "Section

1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating

federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting

Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979)). "To state a claim under Section 1983, a

plaintiff must show [1] that the challenged conduct was committed by a person acting under

color of state law and [2] that the conduct worked a deprivation of rights, privileges, or

immunities secured by the Constitution or federal law." Diaz v. Devlin, 229 F. Supp. 3d 101,

109 (D. Mass. 2017) (citing 42 U.S.C. § 1983; Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.

1997)).

In Count I, Plaintiff alleges that Defendants violated her Fourth Amendment right to be

free from a false arrest. See Peña-Borrero v. Estremeda, 365 F.3d 7, 12 (1st Cir. 2004) ("The

Fourth Amendment guarantees individuals 'the right "to be secure in their persons . . . against

unreasonable . . . seizures" of the person.'") (quoting Graham v. Connor, 490 U.S. 386, 394

(1989)); Camilo–Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998) ("The right to be free from

unreasonable seizure (and, by extension, unjustified arrest and detention) is clearly established in

the jurisprudence of the Fourteenth Amendment (through which the Fourth Amendment

constrains state action)."). There is no dispute that Defendants acted "under color of state law."

Diaz, 229 F. Supp. 3d at 109. However, they contend that Plaintiff's arrest was supported by

probable cause and was lawful or, if it was not, qualified immunity protects them from liability

(Dkt. No. 26 at 4-6, 8-10).

a. Relevant Law

i. Qualified Immunity Framework

"The principle of qualified immunity shields a police officer from liability for civil

damages when his conduct does not violate clearly-established statutory or constitutional rights

of which a reasonable person would have known." Nuon v. City of Lowell, 768 F. Supp. 2d 323,

333 (D. Mass. 2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). See Pearson v.

Callahan, 555 U.S. 223, 231 (2009); Castagna v. Jean, 955 F.3d 211, 213 (1st Cir. 2020), cert.

denied, 141 S. Ct. 896 (2020) ("Qualified immunity is 'an immunity from suit rather than a mere

defense to liability.'") (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). "When sued in

their individual capacities, government officials like [Defendants] are immune from damages

claims unless '(1) they violated a federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was "clearly established at the time."'" Castagna, 955 F.3d at 219

(quoting Eves v. LePage, 927 F.3d 575, 582-83 (1st Cir. 2019) (en banc)). See District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). "Courts may analyze either part of the test

first." Castagna, 955 F.3d at 219.

"The 'clearly established' inquiry itself has two elements." Id. Plaintiff must first

demonstrate that "the law was '"sufficiently clear" [such] that every "reasonable official would

understand that what he is doing" is unlawful.'" Wesby, 138 S. Ct. at 589 (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). "Qualified immunity is supposed to 'protect "all but the plainly

incompetent or those who knowingly violate the law.'" Castagna, 955 F.3d at 219 (quoting Eves,

927 F.3d at 583) (alteration omitted). "Because of that, the right that was allegedly violated must

be defined 'in a particularized sense so that the contours of the right are clear to a reasonable

official.'" Id. (quoting Eves, 927 F.3d at 583) (internal quotation marks omitted). "[E]xisting

precedent must have placed the statutory or constitutional question beyond debate." Eves, 927

F.3d at 583 (quoting al-Kidd, 563 U.S. at 741).

The second element "focuses on the objective legal reasonableness of an official's acts,"

and "[e]vidence concerning the defendant's subjective intent is simply irrelevant." Id. (internal

quotation marks and alteration omitted) (quoting Crawford-El v. Britton, 523 U.S. 574, 588, 590

(1998)). This element provides "some breathing room for a police officer even if he has made a

mistake (albeit a reasonable one) about the lawfulness of his conduct." Gray v. Cummings, 917

F.3d 1, 10 (1st Cir. 2019) (quoting Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018)).

"The First Circuit has recognized the challenges of applying the qualified immunity

standard at the summary judgment stage." Hernandez v. Colon, Civil Action No. 3:16-cv-30089-

KAR, 2018 WL 2422008, at *5–6 (D. Mass. May 25, 2018) (citing Washington v. Amand, 308 F.

Supp. 3d 497, 503 (D. Mass. 2018)).

The difficulty arises because the summary judgment standard requires absolute

deference to the nonmovant's factual assertions (as long as those assertions are put

forward on personal knowledge or otherwise documented by materials of

evidentiary quality), whereas qualified immunity, when raised on summary

judgment, demands deference to the reasonable, if mistaken, actions of the

movant.

Morelli v. Webster, 552 F.3d 12, 18–19 (1st Cir. 2009) (internal citations omitted). To ease the

tension, the First Circuit instructs lower courts "to keep these competing standards logically

distinct." Morris v. Tivnan, CIVIL ACTION NO. 14-40164-DHH, 2017 WL 1217109, at *5 (D.

Mass. Mar. 31, 2017). The court should first identify "the version of events that best comports

with the summary judgment standard . . . ." Morelli, 552 F.3d at 19. "In identifying that version

of events, the summary judgment facts and reasonable inferences drawn therefrom are viewed in

plaintiff's favor." Cardoso v. City of Brockton, Civil Action No. 12-10892-DJC, 2014 WL

6698618, at *11 (D. Mass. Aug. 11, 2014). See Campos v. Van Ness, 711 F.3d 243, 245 (1st Cir.

2013) ("when the parties tell two different stories, as is the case here, we typically must view the

facts and draw all reasonable inferences in the non-movant's favor"). The court then "ask[s]

whether, given that set of facts, a reasonable officer should have known that his actions were

unlawful." Morelli, 552 F.3d at 19. "[C]ourts may not resolve genuine disputes of fact in favor

of the party seeking summary judgment." Tolan v. Cotton, 572 U.S. 650, 656 (2014).

ii. Probable Cause

Whether Plaintiff has adequately alleged a basis for a false arrest claim under § 1983 and

whether Defendants are entitled to qualified immunity depends on whether Plaintiff's warrantless

arrest was supported by probable cause as required by the Fourth Amendment. "If probable

cause existed to arrest, then there has not been a constitutional deprivation [under § 1983]."

Sietins v. Joseph, 238 F. Supp. 2d 366, 375 (D. Mass. 2003). Conversely, it has long been well-

established that an arrest without probable cause is a constitutional violation. See Prokey v.

Watkins, 942 F.2d 67, 74 (1st Cir. 1991).

Probable cause "is not a high bar." Kaley v. United States, 571 U.S. 320, 338 (2014). "It

does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a

preponderance standard demands . . . ." Gerstein v. Pugh, 420 U.S. 103, 121 (1975). Rather, it

exists where "the facts and circumstances within [the officers'] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent [person] in believing

that the [arrestee] had committed or was committing an offense." United States v. Figueroa, 818

F.2d 1020, 1023 (1st Cir. 1987) (second alteration in original) (quoting Beck v. Ohio, 379 U.S.

89, 91 (1964)).

Where "there is room for a difference of opinion concerning the facts or the

reasonable inferences to be drawn from them," the existence of probable cause for

an arrest is an issue for the jury; on the other hand, where the historical facts are

established or undisputed, the issue becomes a mixed question of law and fact

suitable for determination by the court.

Nuon, 768 F. Supp. 2d at 330 (quoting Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th

Cir. 1993)).

b. Plaintiff's Arrest for Disorderly Conduct

Plaintiff was arrested for being a "disorderly person" in violation of Mass. Gen. Laws ch.

272, § 53. As relevant here, an individual is guilty of being a disorderly person if "(1) [s]he

creates a hazardous or physically offensive condition by an act that serves no legitimate purpose

of the individual; (2) [her] actions are reasonably likely to affect the public; and (3) [s]he either

intended to cause public inconvenience, annoyance or alarm, or recklessly created public

inconvenience, annoyance or alarm." Damon v. Hukowicz, 964 F. Supp. 2d 120, 138 (D. Mass.

2013) (citing Commonwealth v. LePore, 666 N.E.2d 152, 155 (Mass. App. Ct. 1996)). "[T]he

Supreme Judicial Court has made it clear that 'the statute only can reach conduct "which involves

no lawful exercise of a First Amendment right."'" Nolan v. Krajcik, 384 F. Supp. 2d 447, 459

(D. Mass. 2005) (quoting Commonwealth v. Feigenbaum, 536 N.E.2d 325, 327 (Mass. 1989)

(quoting Commonwealth v. A Juvenile, 334 N.E.2d 617, 629 (Mass. 1975)). On the other hand,

"'the mere fact that the conduct of the defendant was accompanied by speech does not preclude a

conviction' under the disorderly conduct law." Abraham v. Nagle, 116 F.3d 11, 14 (1st Cir.

1997) (citing Commonwealth v. Carson, 411 N.E.2d 1337, 1337 (Mass. App. Ct. 1980)). There

is no dispute that the incident that culminated in Plaintiff's arrest occurred in the midst of heavy

traffic at the multi-gas pump Pride Station and convenience store (Dkt. No. 27 ¶¶ 47, 48).

Because the failure to obey police orders may create a dangerous condition, see Abraham, 116

F.3d at 14, and because it is undisputed that Plaintiff did not comply with Defendants’ order that

she stay away from the Toyota, the parties' dispute centers on whether or not Plaintiff can show

that she had a legitimate purpose for her actions (Dkt. No. 26 at 5; Dkt. No. 32 at 10-11).

Defendants argue that they reasonably believed that Plaintiff committed the crime of

disorderly conduct because she had no legitimate purpose for refusing to comply with their

repeated instructions to stay away from the Toyota "that contained illegal narcotics" (Dkt. No. 26

at 5). The Pride Station's CCTV video recording shows Plaintiff proceeding across the parking

lot toward Defendants who were searching the Toyota, which was parked at a gas pump (Dkt.

No. 27-11 at 10:30:41 A.M.; Dkt. No. 27-9 at 30). Defendants decided to impound the car after

they arrested B.G. for operating under the influence and determined that the passenger, E.S., did

not have a valid driver's license (Dkt. No. 27 ¶¶ 28-31). See Commonwealth v. Ellerbe, 723

N.E.2d 977, 982 (Mass. 2000) (impoundment of the vehicle was lawful where the driver was

arrested and the passenger did not have a valid driver's license available). Defendants' inventory

search prior to impoundment was lawful. See Commonwealth v. Oliveira, 47 N.E.3d 395, 398

(Mass. 2016) ("'A lawful inventory search is contingent on the propriety of the impoundment of

the [vehicle].'") (quoting Commonwealth v. Brinson, 800 N.E.2d 1032, 1035 (Mass. 2003)). An

inventory search is undertaken to "'safeguard[] the car or its contents, protect[] the police against

unfounded charges of misappropriation, protect[] the public against the possibility that the car

might contain weapons or other dangerous instrumentalities that might fall into the hands of

vandals, or a combination of such reasons.'" Commonwealth v. Lek, 164 N.E.3d 214, 217 (Mass.

App. Ct. 2021) (quoting Commonwealth v. Baptiste, 841 N.E.2d 734, 738 (Mass. App. Ct. 2006)

(citation omitted)).

The parties dispute whether Defendants' inventory search became an investigatory search

for evidence before Plaintiff arrived at the Pride Station. Defendants maintain that they

recovered narcotics from the car before Plaintiff approached them (Dkt. No. 27-4 at 49-52, 68,

74-75; Tr. 27-6 at 30, 33). The station's CCTV video shows that, before Plaintiff's arrival,

Mazzaferro recovered an orange pill bottle that contained a bundle of empty wax paper bags,

which the officer supposedly recognized as being consistent with heroin packaging (Dkt. No. 27-

9 at 17-18, 29; Dkt. No. 30-3 ¶ 63; Dkt. No. 31 ¶¶ 36, 37, 38). Mazzaferro placed the bottle on

the roof of the Toyota (Dkt. No. 27-11 at 10:28:29 A.M.; Dkt. No. 30-3 ¶ 63; Dkt. No. 31 ¶ 38).

MacEachern, who was on the passenger's side, examined the bottle and placed it back on the

car's roof (Dkt. No. 27-11 at 10:28:43 A.M. to 10:28:46 A.M.; Dkt. No. 30-3 ¶¶ 64, 65; Dkt. No.

31 ¶ 39). At the suppression hearing, Mazzaferro testified that the empty wax paper bags

contained what appeared to be heroin residue (Dkt. No. 27-9 at 17). According to Defendants,

heroin residue in the pill bottle provided probable cause to search the Toyota for additional

narcotics before Plaintiff arrived. See Commonwealth v. Miller, 318 N.E.2d 909, 911 (Mass.

1974) ("observation of contraband in a vehicle or on the person of an occupant of a vehicle

provides probable cause for a complete search for more contraband.") (citing federal cases);

Commonwealth v. Skea, 470 N.E.2d 385, 390 n.8 (Mass. App. Ct. 1982) (same); Mass. Gen.

Laws ch. 94C, § 34 (unlawful to possess heroin of any amount); see also United States v. Bell,

197 F. App'x 11, 12, 14 n.2 (1st Cir. 2006) (unpublished) (observation of cocaine residue on a

straw on the driver's door armrest provided probable cause to arrest the driver). In addition,

MacEachern testified that, before Plaintiff arrived, he discovered a bag containing heroin residue

and narcotics paraphernalia under E.S.'s front passenger seat after E.S. got out of the car at

10:25:29 A.M. (Dkt. No. 27-9 at 29; Dkt. No. 27-11). That version of events finds some support

in the Pride Station's CCTV video but is not conclusively established.

Defendants contend that, as Plaintiff proceeded toward them and the Toyota, she was

"yelling" that they could not tow her car and she would take it home (Dkt. No. 27-4 at 51-55;

Dkt. No. 27-6 at 30-31, 38-39; Dkt. No. 27-9 at 18, 30). Defendants claim that they had

probable cause to arrest Plaintiff for disorderly conduct because she continued to loudly protest

their impoundment of the car and did not obey their repeated commands to leave (Dkt. No. 27-1

at 75, 77, 86; Dkt. No. 27-4 at 51, 53-55, 68-69; Dkt. No. 27-6 at 32-33, 49; Dkt. No. 27-9 at 45,

46). Instead, she continued to approach the Toyota and got within five feet of the car when she

allegedly initiated contact with Defendants as they attempted to block her path to the car and the

narcotics they had found (Dkt. No. 27 ¶ 63; Dkt. No. 27-1 at 87; Dkt. No. 27-4 at 49-53, 55-56,

68, 72-75; Dkt. No. 27-6 at 32-36, 49; 27-9 at 46; Dkt. No. 27-11).

In discussing another aspect of G.L. c. 272, § 53, the Supreme Judicial Court noted that

"while a 'specific standard is impractical' for defining the totality of behavior proscribed by G.L.

c. 272, § 53, a potential defendant's 'common sense in most cases will define proscribed

conduct.'" Carson, 411 N.E.2d at 1338 (quoting Commonwealth v. Orlando, 359 N.E.2d 310,

312 (Mass. 1977)). If that standard is applied to Defendants’ version of events, there was no

legitimate purpose for Plaintiff's attempt to interfere with Defendants' lawful inventory or

investigatory search of the Toyota and, therefore, Defendants could reasonably believe that they

had probable cause to arrest Plaintiff for disorderly conduct. See Abraham, 116 F.3d at 14 (the

plaintiff's interference with officers' attempt to arrest the plaintiff's struggling companion "could

not be a legitimate purpose on any view of the matter" and supported a finding of probable cause

to arrest the plaintiff for disorderly conduct); Hatton v. Mullan, No. 16-cv-11341-DJC, 2018 WL

3748162, at *3 (D. Mass. Aug. 7, 2018) (if the plaintiff prevented the officers' search of

individuals for weapons by yelling at an officer, coming close to him, and making contact with

him, the officers reasonably believed that they had probable cause to arrest the plaintiff for

disorderly conduct).

This is a close case on these claims. If, however, Plaintiff's version of the facts is

accepted, Defendants could not have reasonably believed that she had engaged in illegal

disorderly conduct. Plaintiff disputes Defendants' contention that the car was a "crime scene"

when she arrived. According to Plaintiff, the orange pill bottle that Defendants placed on the

roof the car before she arrived did not contain contraband (Dkt. No. 32 at 3). Mazzaferro's police

report does not indicate that the empty bags contained what appeared to be heroin residue (Dkt.

No. 27-10). As to the timing of the discovery of the bag allegedly containing heroin residue and

drug paraphernalia under E.S.'s seat, Plaintiff contends that the CCTV video recording shows

E.S. standing alone and holding a cell phone in front of the Pride convenience store as Plaintiff

walked across the parking lot toward Defendants and the Toyota at 10:30:45 A.M. Plaintiff

contends that E.S.’s position shows that E.S. was not under arrest and would support a finding

that Defendants had not yet found the bag under E.S.'s seat (Dkt. No. 27-1 at 67, 80; Dkt. No.

27-11 at 10:30:45 A.M.). Consequently, according to Plaintiff, Defendants were not conducting

an investigatory search for evidence when she arrived.

Although Plaintiff testified that she intended to reach the car as she proceeded across the

parking area, she denied yelling at Defendants and did not recall telling them that she owned the

Toyota (Dkt. No. 27-1 at 68, 75, 77; Dkt. No. 27-9 at 45, 46).4 Rather, she stated that she was

"there to take the vehicle to [her] home" (Dkt. No. 27-1 at 75, 86; Dkt. No. 27-9 at 38). In

addition, Plaintiff allegedly told the officers that she wanted to see if B.G. was safe, would leave

if they told her where B.G. was, and that she was not going to leave the Pride Station until they

told her about his "disposition" (Dkt. No. 27-1 at 75, 77, 79, 86-88; Dkt. No. 27-9 at 42).

Plaintiff contends that she did not commit the crime of disorderly conduct because, in

searching for her grandson, she had a "legitimate purpose" for her actions (Dkt. No. 32 at 11).

See Commonwealth v. Zettel, 706 N.E.2d 1158, 1161 (Mass. App. Ct. 1999) ("'The import of the

phrase [legitimate purpose] is broadly to exclude from this subsection any conduct that directly

furthers some legitimate desire or objective of the actor.'") (quoting MODEL PENAL CODE §

250.4 cmt. 5 (Am. Law Inst., Official Draft 1980)). She wanted to be certain that her grandson

was unharmed (Dkt. No. 27-1 at 87-88). Protection of a family member has been held to provide

a legal basis to disobey a police officer's order. See Zettel, 706 N.E.2d at 1162 (a mother's

interest in picking up her young on when he was released from school was a "legitimate interest"

that warranted her refusal to obey an officer's orders to move her car). Consequently, accepting

Plaintiff's version of events, a reasonable finder of fact could conclude that Defendants did not

have probable cause to arrest her for disorderly conduct.5

4 Shouting at a police officer is conduct protected by the First Amendment and, alone, cannot

support a disorderly conduct charge. See A Juvenile, 334 N.E.2d at 629.

5 Plaintiff contends that her attempt to take the car to her home after the driver, B.G., had left the

Pride Station and while Defendants were conducting the inventory search was also a legitimate

purpose for her actions (Dkt. No. 32 at 11). However, it is not clear that the law concerning

inventory searches of vehicles in Massachusetts would require Defendants to honor Plaintiff's

alleged request. Law enforcement officers are required to consider an owner or authorized

driver's "lawful and practical alternative to impoundment of the vehicle," Oliveira, 47 N.E.3d at

399, but "it is not incumbent upon the police officers to offer reasonable alternatives [to

impoundment]." Commonwealth v. Bienvenu, 828 N.E.2d 543, 546 n.4 (Mass. App. Ct. 2005)

Defendants’ claim of qualified immunity does not alter that result. There is no dispute

that the constitutional right to be free from arrest without probable cause was clearly established

in 2016, see Cox v. Hainey, 391 F.3d 25, 30 (1st Cir. 2004), and that a legitimate purpose for

disobeying a police order defeats a charge of disorderly conduct. See Zettel, 706 N.E.2d at 1161-

62. Rather, the parties disagree as to the underlying facts. Defendants are not entitled to

dismissal of Plaintiff’s claims based on qualified immunity at this stage of the litigation. See

Prokey, 942 F.2d at 73 ("if what the policeman knew prior to the arrest is genuinely in dispute,

and if a reasonable officer’s perception of probable cause would differ depending on the correct

version, that factual dispute must be resolved by a fact finder").

c. Plaintiff's Arrest for Assault and Battery on a Police Officer

Plaintiff was also arrested for assault and battery on police officers. "An assault and

battery is 'the intentional and unjustified use of force upon the person of another, however slight,'

or the intentional commission of a wanton or reckless act (something more than gross

negligence) causing physical or bodily injury to another." Commonwealth v. Correia, 737 N.E.

2d 1264, 1265-66 (Mass. App. Ct. 2000) (citations omitted). "Under Mass. Gen. Laws ch. 265, §

13D, a person commits the offense of assault and battery on a police officer if he engages in

'purposeful and unwelcomed contact with a person the defendant knows to be a law enforcement

officer actually engaged in the performance of official duties.'" LaFrenier v. Kinirey, 478 F.

(citing Commonwealth v. Caceres, 413 Mass. 749, 751 n. 1, 604 N.E.2d 677, 679 n.1 (Mass.

1992)). Assuming that K.W. was an authorized driver and that she asked Plaintiff to retrieve the

vehicle, there was no evidence that K.W. informed law enforcement officers that she was an

authorized driver and had delegated Plaintiff to retrieve the vehicle as an alternative to

impoundment. Defendants had no obligation "to locate or telephone the registered owner to

determine his . . . wishes, or to wait with the vehicle [at a busy gas station] until a licensed driver

[could] be located." Oliveira, 47 N.E.3d at 399 (citation omitted).

Supp. 2d 126, 136 (D. Mass. 2007) (quoting United States v. Santos, 363 F.3d 19, 23 (1st Cir.

2004)). "Neither violence nor the use of force is an essential element of the offense." Id. "'The

offensive touching may be direct, as by striking another, or it may be indirect, as by setting in

motion some force or instrumentality with the intent to cause injury.'" Commonwealth v. Cohen,

771 N.E. 2d 176, 178 (Mass. App. Ct. 2002) (quoting Commonwealth v. Dixon, 614 N.E. 2d

1027, 1029 (Mass. App. Ct. 1993)). Ultimately, "[t]he affront to the victim's personal integrity is

what makes the touching offensive." Id. (quoting Commonwealth v. Burke, 457 N.E. 2d 622,

624 (Mass. 1983)).

The evidence raises a factual question as to whether Plaintiff committed an assault and

battery on the police officers by initiating contact with Defendants. The Pride Station CCTV

video does not clearly depict the interaction between Plaintiff and Defendants at the critical time

(Dkt. No. 27-11 at 10:30:54 A.M. to 10:30:59 A.M.). The video recording shows Defendants

standing together blocking Plaintiff's direct path to the car (Dkt. No. 27-4 at 72; Dkt. No. 27-11

at 10:30:54 A.M.). According to Defendants, Plaintiff touched them as she attempted to get past

them to reach the car which contained evidence (Dkt. No. 27-4 at 49-53, 55-56, 73-74; Dkt. No.

27-6 at 30, 33-36, 41-44; Dkt. No. 27-9 at 17-18). While awaiting booking, Plaintiff told B.G.

that she "resisted" and did not "turn[] around and leave[]" (Dkt. No. 27-12 at 10:47:11 A.M.;

Dkt. No. 30 ¶ 90). Plaintiff, on the other hand, asserts that Defendants seized her as she tried to

walk around Mazzaferro to get closer to the car (Dkt. No. 27-1 at 78-79; Dkt. No. 31 ¶¶ 54-57).

She did not believe that she came into contact with Defendants before they "grabbed" her (Dkt.

No. 27-1 at 87). While awaiting booking, Plaintiff told B.G., "I've done nothing" (Dkt. No. 27-

12 at 10:47:11 A.M.; Dkt. No. 30 ¶ 90).

In view of the settled law of assault and battery on a police officer, which requires an

offensive touching, see Cohen, 771 N.E.2d at 178, if Plaintiff's version of events is credited, a

finder of fact could conclude that reasonable officers would have recognized that they lacked

probable cause to arrest her for assault and battery because she did not initiate contact with them.

Viewing the evidence in the light most favorable to Plaintiff, Defendants are not entitled to

qualified immunity, and summary judgment is inappropriate. See Hatton, 2018 WL 3748162, at

*3 ("it is inappropriate to grant a qualified immunity defense at summary judgment where the

defense is premised on a factual dispute.").

2. Count V: Common Law False Arrest

In addition to the § 1983 claim for unlawful arrest, Plaintiff asserts a common law claim

for false arrest. "To maintain a cause of action for false arrest under Massachusetts law, a

plaintiff must establish that 1) the defendant arrested the plaintiff and 2) without probable cause."

Eason v. Alexis, 824 F. Supp. 2d 236, 241 (D. Mass. 2011) (citing Lucas v. City of Boston, Civil

Action No. 07-cv-10979-DPW, 2009 WL 1844288, at *25 (D. Mass. June 19, 2009)). For the

reasons stated in the discussion of the § 1983 claim, whether Defendants had probable cause to

arrest Plaintiff presents a genuine question of material fact. See Hatton, 2018 WL 3748162, at

*2 ("A false arrest claim under either Section 1983 or state law requires a showing that the

officer did not have probable cause to perform the arrest.") (citing Acosta v. Ames Dep't Stores,

Inc., 386 F.3d 5, 9 (1st Cir. 2004)). Consequently, summary judgment is denied as to Count V.

In sum, Defendants' motion for summary judgment is denied as to Counts I and V.

B. Counts II and IV: Claims Based on Defendants' Alleged Use of Excessive

Force

1. Count II: § 1983 Claim

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

City of New Bedford, Civil Action No. 17-12159-FDS, 2019 WL 4394914, at *4 (D. Mass. Sept.

13, 2019). "In evaluating whether an officer used excessive force in violation of a plaintiff’s

constitutional rights, the key question is 'whether "the defendant officer employed force that was

reasonable under the circumstances."'" Hatton, 2018 WL 3748162, at *4 (quoting Raiche v.

Pietroski, 623 F.3d 30, 36 (1st Cir. 2010)). "The 'reasonableness' of a particular use of force

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

20/20 vision of hindsight." Graham, 490 U.S. at 396. "The [reasonableness] inquiry requires

weighing the severity of the crime[s] at issue, whether the suspect posed a safety risk to the

officers or others, and whether the suspect was actively resisting arrest or attempting to flee."

Hatton, 2018 WL 3748162, at *4; see also Graham, 490 U.S. at 396.

Although there is no dispute that the charges of disorderly conduct and assault and

battery on a police officer were misdemeanors and that Plaintiff was outnumbered by much

larger, younger Defendants, there are genuine disputes of fact as to whether Defendants used

excessive force when arresting and handcuffing Plaintiff (Dkt. No. 27-4 at 7; Dkt. No. 27-6 at

46-47; Dkt. No. 31 ¶ 57). According to Defendants, they applied reasonable force in view of

Plaintiff's failure to obey their repeated orders to leave the area, her proximity to a car that

contained narcotics evidence, and her resistance to being handcuffed (Dkt. No. 27 ¶ 63; Dkt. No.

27-4 at 74-75; Dkt. No. 27-6 at 47, 48, 49). Defendants deny that her head hit the truck that was

parked near the Toyota when they placed her in handcuffs (Dkt. No. 27-4 at 77; Dkt. No. 27-6 at

50). In contrast, Plaintiff contends that the officers "slammed" her face into the truck when they

turned her around, put her arms behind her back, and handcuffed her (Dkt. No. 27-1 at 78). See

Morris, 2017 WL 1217109, at *4 (denying summary judgment where plaintiff and defendants

disputed whether or not a defendant "smashed" the plaintiff's head into a fence during his arrest).

That Plaintiff did not report injuries at the Pride Station or during booking and that her booking

video did not depict visible injuries to her face or right wrist is not dispositive (Dkt. No. 27 ¶¶

79, 84, 94, 95, 96, 98). "Although the seriousness of the injury is a relevant consideration in

evaluating the reasonableness or force, this factor does not negate a dispute as to the amount and

manner of the force allegedly used." Morris, 2017 WL 1217109, at *4 n.7 (citing Bastien v.

Goddard, 279 F.3d 10, 14 (1st Cir. 2002)).

Plaintiff's version of events, if credited, might prove that Defendants used an

unreasonable amount of force, thereby violating her Fourth Amendment right to freedom from

excessive force, which right was "clearly established at the time of the assault." Bird, 2019 WL

4394914, at *4. "The use of violence against individuals who pose no safety threat is clearly

unreasonable, and that fact would have been understood by an objectively reasonable officer."

Id. (citing Asociacion de Periodistas de P.R. v. Mueller, 529 F.3d 52, 60-61 (1st Cir. 2008)).

Consequently, a fact finder could determine that the use of force by Defendants was objectively

unreasonable and, therefore, they are not entitled to qualified immunity or summary judgment on

Count II, Plaintiff's § 1983 excessive force claim.

2. Count IV: Common Law Assault and Battery Claim

Plaintiff also claims that Defendants committed an assault and battery when they

slammed her into the truck while effectuating her arrest. "Massachusetts law allows for assault

and battery claims against police officers who use excessive force in conducting an arrest."

Raiche, 623 F.3d at 40 (citing Powers v. Sturtevant, 85 N.E. 84, 84 (Mass. 1908)). "However,

Massachusetts law also allows an officer to use reasonable force in conducting a lawful arrest:

reasonable force is a valid defense to assault and battery." Id. (citing Dean v. City of Worcester,

924 F.2d 364, 369 (1st Cir. 1991)). "Where a plaintiff alleges both a § 1983 excessive force

claim and common law claims for assault and battery, [the court's] determination of the

reasonableness of the force used under § 1983 controls [its] determination of the reasonableness

of the force used under the common law assault and battery claims." Id. Because there is a

genuine factual dispute as to whether Defendants used excessive force, they are not entitled to

summary judgment on Count IV.

C. Counts V and VI: Claims Concerning Plaintiff's Springfield District Court

Prosecution

1. Count VI: Malicious Prosecution

In Count VI, Plaintiff contends that her arrest constituted malicious prosecution by

Defendants. To prevail on a claim of malicious prosecution under Massachusetts law, a plaintiff

must prove: "(1) the commencement or continuation of a criminal proceeding against the

eventual plaintiff at the behest of the eventual defendant; (2) the termination of the proceeding in

favor of the accused; (3) an absence of probable cause for the charges; and (4) actual malice."

Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) (citing Correllas v. Viveiros, 572 N.E.2d

7, 10 (Mass. 1991)).

The first element is satisfied by the evidence that Defendants arrested Plaintiff for

disorderly conduct and assault and battery on a police officer and that Plaintiff was prosecuted.

See Campbell v. Casey, 166 F. Supp. 3d 144, 153 (D. Mass. 2016); Gutierrez v. Mass. Bay

Transp. Auth., 772 N.E.2d 552, 562 (Mass. 2002). There is a factual dispute as to whether the

criminal proceedings terminated in Plaintiff's favor (Dkt. No. 26 n.2; Dkt. No. 32 n.13). In

Massachusetts, "a criminal prosecution terminates 'in favor of the plaintiff when the district

attorney formally abandons the criminal proceedings by a nolle prosequi or a motion to dismiss'

as long as 'the reasons stated for the nolle prosequi or dismissal [are] consistent with the

innocence of the accused.'" Boyle v. Barnstable Police Dep't, 818 F. Supp. 2d 284, 303 n.31 (D.

Mass. 2011) (alteration in original) (quoting Wynne v. Rosen, 464 N.E.2d 1348, 1351 (Mass.

1984)). "'The circumstances of the abandonment must . . . compel an inference that there existed

a lack of reasonable grounds to pursue the prosecution.'" Id. (quoting Wynne, 464 N.E.2d at

1351). Defendants claim that the prosecutor consulted them before entering a nolle prosequi of

the charges against Plaintiff and they agreed to that disposition because Plaintiff apologized and

indicated that she understood that she could not interfere with a police investigation (Dkt. No.

27-4 at 85-86; Dkt. No. 27-6 at 51-52). In contrast, Plaintiff denies that she spoke to the

prosecutor or Defendants or apologized prior to the disposition of the case (Dkt. No. 27-1 at 110-

12).6 Assuming that Plaintiff can show that the proceedings terminated in her favor, for the

reasons previously discussed, there is a genuine factual dispute as to whether Defendants had

probable cause to arrest Plaintiff. Because the fourth element, malice, may be inferred from a

lack of probable cause, whether Defendants acted with malice is also in dispute. Campbell, 166

F. Supp. 3d at 153 (quoting Limone v. United States, 579 F.3d 79, 89 (1st Cir. 2009)). In

addition, questions of motive or intent generally are not conducive to resolution on a motion for

summary judgment. See Acosta Colon v. Wyeth Pharms. Co., 363 F. Supp. 2d 24, 28 n.7 (D.P.R.

2005), amended on reconsideration in part sub nom. Acosta Colón v. Wyeth Pharms. Co., Inc.,

No. Civ. 03-2327 DRD, 2006 WL 508094 (D.P.R. Mar. 1, 2006) ("Issues of motive and intent

are usually not appropriate when in summary judgment for these are questions better suited to be

resolved by the trier of facts.") (citing Pullman–Standard v. Swint, 456 U.S. 273, 288–90 (1982);

6 Although the nolle prosequi was exhibit 2 at Plaintiff's deposition, it was not included in the

summary judgment record (Dkt. No. 27-1 at 3, 113).

Lipsett v. Univ. of P.R., 864 F.2d 881, 895 (1st Cir. 1988)). Accordingly, Defendants' motion for

summary judgment on Count VI is denied.

2. Count VII: Abuse of Process

Finally, Defendants argue that they are entitled to summary judgment on Plaintiff's abuse

of process claim. Plaintiff counters that Defendants commenced the prosecution in a "misguided

attempt to protect themselves from civil liability" (Dkt. No. 32 at 15).

In Massachusetts, a claim for abuse of process has three elements: "(1) 'process was

used,' (2) 'for an ulterior or illegitimate purpose,' (3) 'resulting in damage.'" 477 Harrison Ave.,

LLC v. JACE Boston, LLC, 134 N.E.3d 91, 104 (Mass. 2019) (quoting Millennium Equity

Holdings, LLC v. Mahlowitz, 925 N.E.2d 513, 522 (Mass. 2010)). There is no dispute that

Defendants initiated criminal proceedings against Plaintiff.

"[A]n ulterior motive is an essential element of the tort of abuse of process when the

claim is based solely on commencement of an action." Ladd v. Polidoro, 675 N.E.2d 382, 384

(Mass. 1997). An ulterior motive "is not simply the intent to harm the other party directly by

bringing suit, but rather the intent to gain some other end indirectly." Psy–Ed Corp. v. Klein,

947 N.E.2d 520, 535 n.35 (Mass. 2011). "There must be an ulterior purpose '"to gain some

collateral advantage," which "has been compared to extortion, in that the defendant has allegedly

tried to extract some advantage by wrongful means."'" Cardoso, 2014 WL 6698618, at *18

(quoting Damon, 964 F. Supp. 2d at 141).

Although "an abuse of process claim can lie whether or not there was probable cause" to

arrest, Faust v. Coakley, Civil Action No. 07-11209-RWZ, 2008 WL 190769, at *4 (D. Mass.

Jan. 8, 2008), and although an officer's knowledge that he lacked probable cause for an arrest

does not, alone, satisfy the ulterior purpose element, see Lund v. Henderson, 22 F. Supp. 3d 94,

108 (D. Mass. 2014), the fact that the arresting officer knew or had reason to know that the arrest

was not supported by probable cause is relevant "as tending to show that the process was used

for an ulterior purpose." Fishman v. Brooks, 487 N.E.2d 1377, 1383 (Mass. 1986). Plaintiffs

have asserted viable claims of abuse of process where police officers have instituted criminal

charges to "cover up their misdeeds," such as arresting a plaintiff without probable cause or

using excessive force, as alleged here. Eason, 824 F. Supp. 2d at 243. See Philbrook v. Perrigo,

637 F. Supp. 2d 48, 54-55 (D. Mass. 2009) (denying summary judgment on abuse of process

claim where it was reasonable to infer that officers initiated process to cover up their wrongful

arrest of the plaintiff). In addition, similar to the claim of malicious prosecution, Plaintiff's claim

for abuse of process raises a question about Defendants' motivation which is not conducive to

resolution on a motion for summary judgment. See Mulero–Rodríguez v. Ponte, Inc., 98 F.3d

670, 677 (1st Cir. 1996) ("determinations of motive and intent . . . are questions better suited for

the jury") (quoting Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990)). For

these reasons, Defendants' motion for summary judgment on Count VII is denied.

V. CONCLUSION

For the reasons stated above, Defendants' motion for summary judgment (Dkt. No. 25) is

DENIED. The parties are directed to appear at a status conference on July 12, 2021 at 11:00

a.m. If that date is not convenient, the parties are to confer with the Clerk's Office to select an

alternative mutually convenient date and time.

It is so ordered.

Dated: June 21, 2021 /s/ Katherine A. Robertson

KATHERINE A. ROBERTSON

U.S. MAGISTRATE JUDGE

28