Banks v. Town of Plainville

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DAVID BANKS,

Plaintiff,

No. 18-cv-12084-DLC

v.

JAMES FLOYD,

Defendant.

ORDER ON DEFENDANT’S MOTION TO

RECONSIDER ORDER ON SUMMARY JUDGMENT

CABELL, U.S.M.J.

Defendant Plainville Police Detective James Floyd moves for

reconsideration of the court’s decision denying his motion for

summary judgment on Count II of the complaint, which alleges a

violation of the Massachusetts Civil Rights Act (MCRA), and Count

III, which alleges intentional infliction of emotional distress

(IIED).1 (D. 45). The plaintiff opposes. (D. 46). For the

reasons explained below, the motion for reconsideration is denied.

BACKGROUND

Summarizing the salient facts, the case arises from an

altercation Banks witnessed outside his home involving three area

police officers, two of whom were Plainville police officers. When

1 The court allowed the motion for summary judgment with respect to Count I,

which alleged a § 1983 violation against Detective Floyd and the town of

Plainville in connection with the search of the plaintiff’s residence.

Counts II and III are asserted against Detective Floyd only.

news stories about the altercation appeared, Banks discussed the

altercation with a municipal employee. Among other things, he

indicated that he had a surveillance camera that might or might

not have captured the altercation and suggested that the actual

altercation happened differently than as described in news

accounts.

The employee told the police chief about the camera and

Detective Floyd in turn called Banks the same day to ask if the

camera had recorded any of the altercation. When Banks said he

did not want to become involved, Detective Floyd went to Banks’

home and observed a camera in the front window, pointing at the

area where the altercation had occurred.

Based on this and other information, Detective Floyd obtained

and executed a warrant to search Banks’ home for video or

photographic evidence of the altercation. During the search,

officers found a handgun in a closed dresser in Banks’ bedroom.

Banks said the handgun, which was inoperable, was an antique that

had belonged to his ex-wife. Among other things, Detective Floyd

told Banks that he was prohibited from obtaining a license to carry

a firearm in light of his record, and also told him he potentially

could be held liable for any crime connected to the handgun.

Banks, who ultimately was never charged with an offense in

connection with the firearm, contends that Detective Floyd let the

threat of a possible prosecution hang over him to force him to

cooperate in the ongoing investigation of the altercation.

THE SUMMARY JUDGMENT MOTION

In moving for summary judgment, Detective Floyd focused

solely on the propriety of his conduct in obtaining and executing

the warrant to search the plaintiff’s residence.

With respect to the § 1983 claim in Count I, he argued that

he was entitled to qualified immunity because there was probable

cause for the warrant to issue. (D. 32).

With respect to the MCRA claim in Count II, he argued that it

failed for the same reasons as Count I, and because nothing about

the search suggested it was intended to coerce the plaintiff to

give up some civil right, or that the defendant interfered with

the plaintiff’s rights by threats, intimidation, or coercion.

(Id.).

With respect to Count III the defendant argued that his

conduct fell far short of the extreme and outrageous conduct

necessary to constitute IIED where he had probable cause to obtain

a search warrant. (Id.).

As such, the defendant did not address the propriety of his

post-search conduct or the allegations that he improperly used the

threat of an improbable prosecution to persuade the plaintiff to

provide evidence in connection with the ongoing police

investigation.

By contrast, the plaintiff’s opposition, to which the

defendant submitted no reply, reflects that Counts II and III

clearly encompassed the allegation that Detective Floyd’s post-

search conduct violated the MCRA and constituted IIED. Regarding

Count II, the plaintiff argued that the defendant “used the fruits

of the unlawful search as a means to threaten Plaintiff, coerce a

statement from him regarding the events of July 30 and coerce him

into relinquishing his constitutional rights.” Regarding Count

III, the plaintiff similarly argued that the defendant “exploited

the fruits of this unlawful search for the purpose of acquiring a

statement from Plaintiff (because Plaintiff was originally

reluctant to cooperate in the investigation . . .).” (D. 40).

THE SUMMARY JUDGMENT ORDER

In granting summary judgment on Count I, the court found that

officers did not violate the plaintiff’s constitutional rights

because they had probable cause to search his residence. The court

therefore did not find it necessary to address whether Detective

Floyd enjoyed qualified immunity assuming a violation had

occurred.

Regarding Count II, the court found for the same reasons that

Detective Floyd was entitled to summary judgment to the extent the

MCRA claim was based on the search of the plaintiff’s residence.

However, the court found that Count II survived summary judgment

to the extent it alleged a MCRA violation based on Detective

Floyd’s use of a potential firearms violation to threaten,

intimidate, or coerce Banks into cooperating with the altercation

investigation. The court found that a factfinder reasonably could

conclude from the facts that Detective Floyd had used the prospect

of a prosecution to coerce or intimidate Banks into cooperating

with his investigation.

Regarding Count III, the court denied the motion for summary

judgment where the plaintiff asserted that Detective Floyd held

the threat of charges open principally to force him to cooperate.

The court found that such allegations, if proven, could support a

finding of extreme and outrageous conduct.

DISCUSSION

The granting of a motion for reconsideration is “an

extraordinary remedy which should be used sparingly[,]” Palmer v.

Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006), and is

“‘appropriate only in a limited number of circumstances: if the

moving party presents newly discovered evidence, if there has been

an intervening change in the law, or if the movant can demonstrate

that the original decision was based on a manifest error of law or

was clearly unjust.’” Karter v. Pleasant View Gardens, Inc., 323

F. Supp. 3d 179, 181 (D. Mass. 2018) (quoting United States v.

Allen, 573 F.3d 42, 53 (1st Cir. 2009)). While a court has

considerable discretion to grant or deny the motion, it “will not

consider any argument already rejected, or any theory that could—

and should—have been raised earlier.” Id. (emphasis added).

Applying that standard here, reconsideration is not warranted.

Detective Floyd argues that the court committed errors of law

in denying summary judgment on Counts II and III. Regarding the

MCRA claim, he contends that the court failed to consider whether

he enjoyed qualified immunity for his post-search conduct.

Regarding the IIED claim, he argues similarly that he cannot be

liable for IIED for conduct following the search because he at all

times had probable cause to charge the plaintiff for unlawful

firearms possession.

However, and as noted above, the defendant did not previously

make any arguments at summary judgment addressing the

reasonableness of his post-search conduct. Rather, he argued that

he did not violate the MCRA because there was probable cause to

search the plaintiff’s residence, and because the facts showed no

threats, coercion, or intimidation in connection with that search.

By contrast, the defendant never argued that his actions following

the search were also justified or that he enjoyed qualified

immunity with respect to them. Similarly, although the defendant

argued that his conduct in connection with the search fell far

short of the extreme and outrageous conduct necessary to constitute

IIED, he never argued that his post-search conduct also fell short

of meeting that standard.

Nothing prevented the defendant from raising these arguments

prior to the court’s judgment. To the extent the defendant might

contend it was initially unclear whether the plaintiff’s complaint

encompassed events following the search, the plaintiff underscored

the point in his opposition and the defendant could have sought

leave to reply. Where he did not do so then, he is effectively

precluded from doing so now. See Iverson v. City of Boston, 452

F.3d 94, 104 (1st Cir. 2006) (motion for reconsideration does not

“allow a party [to] advance arguments that could and should have

been presented to the district court prior to judgment”); see also

Bangura v. Shulkin, Civ. A. No. 16-10614-JGD, 2019 WL 163111, at

*1 (D. Mass. Jan. 10, 2019) (same); Galanis v. Szulik, 863 F. Supp.

2d 123, 124 (D. Mass. 2012) (motions for reconsideration “are not

vehicles for pressing arguments which could have been asserted

earlier”). In any event, the court still has not been presented

with compelling evidence holding that the facts of this case could

not support a MCRA or IIED claim as a matter of law.2

2 The defendant argues that the court erred by relying on an unpublished

district court opinion, Sanchez v. City of Boston, Civ. A. No. 10-11075-RGS,

2011 WL 5508929 (D. Mass. Nov. 10, 2011), to find that a clearly established

constitutional right to be free from threats of arrest and criminal charges

defeated his qualified immunity. See D. 45 ¶ 9 (“[i]n a qualified immunity

analysis, . . .the Sanchez case does not support Plaintiff’s MCRA claim”); ¶

16 (“[m]oreover, [Sanchez] cannot defeat qualified immunity because the facts

are not similar to the present case”). However, the court did not cite

Sanchez in relation to qualified immunity, but rather for the proposition

that threats of arrest and criminal charges to coerce one to take some action

can potentially form the basis of a valid MCRA claim. Floyd does not address

this proposition in his motion.

CONCLUSION

For the foregoing reasons, the defendant’s Motion to

Reconsider Order on Summary Judgment (D. 45) is DENIED.

So Ordered.

/s/ Donald L. Cabell

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

DATED: September 13, 2021