Carr v. Town of Bourne By Its Board of Selectmen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

TIMOTHY CARR,

Plaintiff,

v.

TOWN OF BOURNE BY ITS BOARD OF No. 21-cv-11808-DLC

SELECTMEN, CHIEF OF POLICE OF

THE TOWN OF BOURNE, POLICE

OFFICER TIMOTHY DERBY, POLICE

OFFICER KYLE TRINGALI, NEW

ENGLAND SECURITY PROTECTICE

SERVICES AGENCY, INC., and

JAMES GRACIE,

Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Cabell, U.S.M.J.

I. INTRODUCTION

This action arises from an early morning encounter between

Bourne Police Department (BPD) officers Timothy Derby and Kyle

Tringali (“the officers”), security guard Joseph Grace (“Grace”),

and plaintiff Timothy Carr (“Carr” or “plaintiff”). Carr contends

that the two police officers, responding to a call from Grace,

forcibly entered his office without cause and confronted him with

their weapons drawn. The operative complaint asserts various

claims against the officers, the town of Bourne (the “Town”), and

the BPD Chief of Police (the “Chief of Police”)1 (collectively “the

defendants”).2 The defendants move for summary judgment on all

counts. (Dkt. No. 37). For the reasons that follow, the court

grants the defendants’ motion.

II. BACKGROUND

A. Facts Leading Up to the Police Encounter

The parties do not dispute the salient facts leading up to

the officers’ encounter with Carr.

Carr at all relevant times rented an office located at 1248

Route 28A, Unit 9,3 in Cataumet, MA.4 (Dkt. No. 39, Defendants’

Statement of Material Facts, ¶ 1; Dkt. No. 1-2, ¶ 7). Early in

the morning on July 21, 2018, Carr’s personal vehicle was parked

in the adjacent parking lot, with a boat on a trailer attached to

the vehicle. (Dkt. No. 39, ¶ 3). Carr suspected that his boat

had a mechanical problem, and he was planning to fix it before

going fishing later that morning. (Id.).

1 Carr does not indicate whether he is suing the Chief of Police and the officers

in their official or individual capacities. The court will presume it is both.

2 The court previously entered summary judgment against Grace and his employer

on the sole claim of trespass advanced against them.

3 Though Carr’s office is identified as “Unit 3” elsewhere in the record,

including the defendants’ Statement of Material Facts (Dkt. No. 39), Carr

repeatedly referred to his office as “Unit 9” during his deposition. The

discrepancy is immaterial, but the court assumes the plaintiff’s description is

accurate.

4 Cataumet is a village within the Town.

At approximately 2:30 am, Carr left his office to “park [his

work vehicle, which was also in the parking lot] in a more

convenient spot so it wouldn’t be in the way of anybody.” (Dkt.

No. 38-1, Transcript of Carr’s Deposition, p. 47:10-13). As he

left the parking lot, Carr was stopped by Grace, a private security

guard, who questioned Carr regarding his identity and purpose for

being on the property. (Id. at pp. 47:15-21, 151:9). After

speaking with Grace for approximately five minutes, Carr parked

his work vehicle and returned to his office. (Id. at p. 52:14-

24). Back in his office, Carr sat on a chair observing Grace walk

around the property with a flashlight. (Dkt. No. 39, ¶¶ 5-6).

Grace subsequently called the police, and the officers

arrived at approximately 3:15 am. (Id. at ¶¶ 4, 8). The officers

and Grace searched the parking lot and the area around Carr’s

office with flashlights while calling out Carr’s name (Id. at ¶

9). Carr watched from inside his office. (Id.).

Approximately ten minutes after the officers arrived, the

door to Carr’s office opened. (Dkt. No. 38-2, Security Camera

Footage, at 03:25:16). The parties dispute who opened the door,

as well as the details of their encounter, but they do agree that:

(1) the officers never handcuffed or touched Carr in any way; (2)

the door and lock to Carr’s office were not damaged; and (3) a

nearby security camera accurately captured video footage of the

encounter. (Id. at ¶¶ 12, 14, 16). The encounter lasted less

than two minutes. (Id. at 03:25:16-03:27:58). After the officers

and Grace left Carr’s office, Carr followed them out into the

parking lot. (Id. at 03:28:26).

B. The Parties’ Accounts of the Encounter

The defendants assert that Carr (and not the officers) opened

the door to his office. They also assert that the officers “did

not forcibly break into Carr’s office or draw their firearms.”

(Dkt. No. 38, p. 8). They contend that the officers spoke with

Carr for approximately two minutes and then walked away after

determining there was no crime in progress, followed shortly

thereafter by Carr.

Carr asserts that someone, either the officers or Grace,

forced his locked door open after pulling on it roughly 20 times.

(Dkt. No. 38-1, p. 59:8-9). Carr further maintains that one of

the officers entered his office and in doing so pointed both a

firearm and a flashlight at Carr. (Id. at pp. 62:19-63:1; 159:12-

160:5; Dkt. No. 41, ¶ 4, Memorandum in Opposition). Carr believed

the officer was holding the firearm in his right hand. (Dkt. No.

38-1, p. 159:16-18).

C. What the Video Shows

The parties agree that a security camera outside Carr’s office

captured much of the incident and that the recorded video

accurately depicts what happened. (Dkt. No. 38-2). The video in

pertinent part begins with Grace walking around the area outside

Carr’s office. When the officers5 eventually arrive, one of them,

Officer 1, briefly attempts to open the door to Carr’s office by

trying the handle. (Dkt. No. 38-2 at 03:25:02-03:25:14). The

door appears to be locked and Officer 1 begins to turn and walk

away. (Id. at 03:25:13-03:25:15). As he does so, something --

perhaps a sound, although the video does not reveal this -- appears

to catch his attention, and he turns back to the door. (Id. at

03:25:16). Officer 1 then grasps part of the door, several inches

above the handle he had just tried, and pulls casually. As he

does so, the door opens. (Id. at 03:25:17-03:25-21).

Once the door is opened, Officer 1 steps back and Grace moves

to hold the door open. (Id. at 03:25:18-03:25:21). The other

officer, Officer 2, then enters the frame and approaches Carr’s

office, holding a lit flashlight in his right hand. (Id. at

03:25:15-03:25:23). As Officer 2 arrives at the threshold to

Carr’s office, he lifts his right hand and points his flashlight

into Carr’s office. (Id. at 03:25:24). In the same frame, Officer

2’s left hand is briefly depicted, and it is empty, meaning he is

not holding a firearm in either his left or right hand. (Id.).

Officer 2 then proceeds to lean into Carr’s office to speak with

5 Although the two officers are identified by name in the complaint, nothing in

the record clarifies what role each officer played. At oral argument, counsel

was unable to shed light on which officer depicted in the video was Officer

Derby and which was Officer Tringali. Accordingly, the court refers to the

officers as Officer 1 and Officer 2.

Carr, obscuring his torso for approximately sixteen seconds. (Id.

at 03:25:27-03:25:43).

Following that period of time, Officer 2 leans back slightly,

making the beam of his flashlight (held in his right hand) visible

again for a few seconds. (Id. at 03:25:47-03:25:50). Officer 2

then turns his flashlight off, places and secures it behind his

back, and brings his empty right hand in front of his body, where

he uses it to gesticulate as he speaks with Carr. (Id. at 03:25:50-

03:26:09).

From then on, Officer 2 never brings his flashlight out again.

(Id. at 03:26:09-03:27:59). As Officer 2 steps away from Carr’s

door, both of his hands are clearly empty. (Id. at 03:27:49-

03:27:58). At no point is Officer 2 shown brandishing a firearm.

Likewise, Officer 1, who is clearly visible throughout Officer 2’s

interaction with Carr, never brandishes a firearm.

III. THE COMPLAINT

The operative complaint asserts four claims, all of which

arise in part or entirely from Carr’s allegation that one or both

officers forcibly entered Carr’s office without cause and with

weapons drawn. Count One alleges a violation of 42 U.S.C. § 1983;

Count Two alleges common law assault; Count Three alleges trespass;

and Count Four alleges negligent or intentional infliction of

emotional distress.

IV. 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 “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’ if it can

be ‘resolved in favor of either party,’ and a fact is ‘material’

if it ‘has the potential of affecting the outcome of the case.’”

Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 62 (1st Cir. 2020)

(quoting Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.

2016)).

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). If the moving party satisfies

its initial burden, the opposing party then “bears the burden of

producing specific facts sufficient to defeat summary judgment.”

González-Cabán v. JR Seafood Inc., 48 F.4th 10, 14 (1st Cir. 2022)

(internal quotations omitted). 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) (internal quotation omitted).

Furthermore, "[the] evidence illustrating the factual controversy

cannot be conjectural or problematic; it must have substance in

the sense that it limns differing versions of the truth which a

factfinder must resolve." Mack v. Great Atl. and Pac. Tea Co.,

871 F.2d 179, 181 (1st Cir. 1989).

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).

However, “[w]hen opposing parties tell two different stories, one

of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary

judgment.” Underwood v. Barrett, 924 F.3d 19, 20 (1st Cir. 2019)

(per curiam) (citing Scott v. Harris, 550 U.S. 372, 377 (2007)).

V. DISCUSSION

The evidence in the record comes principally from two sources,

Carr’s deposition testimony and the security camera video footage,

and each source paints a starkly different picture of what

transpired. But where, as here, the parties agree the video

footage is authentic and accurate, the court views the facts in

the light depicted by the video evidence and will favor the video

evidence wherever it blatantly contradicts any portion of Carr’s

deposition. See O’Brien v. Town of Bellingham, 943 F.3d 514, 531

(1st. Cir. 2019); see also Underwood, 924 F.3d at 20 (court “should

not adopt [blatantly contradicted] version of the facts for

purposes of ruling on a motion for summary judgment”).

A. Count One – Violation of 42 U.S.C. § 1983

Count One alleges a violation of 42 U.S.C. § 1983.6 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). To

prevail under section 1983, a plaintiff must among other things

show that the defendants deprived the plaintiff of a right secured

by the Constitution or the laws of the United States. Budnick v.

Baybanks, Inc., 921 F. Supp. 30, 32 (D. Mass. 1996).

The plaintiff does not articulate with particularity what

constitutional right was impacted here, alleging broadly that the

officers’ conduct deprived him of “the rights, privileges, and/or

immunities guaranteed to him under federal law and/or the U.S.

Constitution.” (Dkt. No. 1-2, ¶ 28). That said, the court

presumes, and the defendants appear to agree, that the plaintiff

alleges that the officers violated his Fourth Amendment right to

be free from an unreasonable seizure by forcibly entering his

6 The complaint styles Count One as arising under both 42 U.S.C. § 1983 and

M.G.L. c. 258, the Massachusetts Tort Claims Act (the “MTCA”). The MTCA sets

out the requirements and limitations for asserting a state law tort claim

against a governmental authority but does not itself provide for an independent

cause of action. The court thus treats Count One as asserting solely a claim

under 42 U.S.C. § 1983.

office without cause and with weapons drawn. See U.S. Const.

amend. IV (“[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. . .”).7 Based largely

on the video footage, the court finds that the officers did not

commit the acts alleged and thus did not violate Carr’s Fourth

Amendment rights.

To begin, Carr contends that the encounter began with Officer

1 trying at least 20 times to pull Carr’s locked door open before

forcibly gaining entry (along with Officer 2) into Carr’s office.

However, the video shows beyond any doubt that this just did not

happen. Rather, Officer 1 briefly tried the door handle but then

turned away when the door did not open, and then turned back

towards the door in response to something, most likely the sound

of the door being unlocked. Officer 1 then grasped part of the

door, several inches above the handle he had just tried, and pulled

the door open casually before walking away and leaving Grace to

hold the door. As such, whether it was Officer 1 or Carr who

7 The plaintiff does not articulate a specific theory of liability with respect

to the Chief of Police or the Town. He does not allege, for example, that the

officers were negligently hired, trained, or supervised, or claim municipal

liability against the Town for officially sanctioning the officers’ conduct

through some Town policy or practice. See Monell v. Dep't of Soc. Servs., 436

U.S. 658, 690 (1978). As explained below, the failure to do so does not matter

here where the court goes on to find that the officers did not violate the

plaintiff’s rights, rendering any derivative or collateral claims meritless ab

initio.

actually opened the door, the officers did not forcibly enter

Carr’s office.8

Next, and most significantly, the video shows indisputably

that neither officer ever brandished a firearm. Carr testified

during his deposition that the officer who entered his office was

holding both a flashlight and a firearm at the time he entered,

with the firearm in his right hand. (Dkt. No. 38-1, p. 159:16-

18). That could not be Officer 1 because the video shows that he

stepped back after the door was opened, remained visible at all

times, and never brandished a firearm during the encounter. It

also could not be Officer 2 because the video shows that he was

holding a lit flashlight in his right hand as he approached Carr’s

threshold, not a firearm, and for that matter also did not have

anything in his left hand.

At his deposition, Carr’s counsel showed Carr the portion of

the video where Officer 2 walks up to his office door. (Id. at

pp. 158:17-159:11). Carr pointed out that Officer 2 was holding

something in his right hand but was unable to identify what it

was. (Id. at p. 159:5-7). Three questions later, having just

watched the video, Carr testified that he thought (at the time of

his deposition) that Officer 2 was holding a firearm in his right

8 Carr concedes that there was no damage to the door or lock following the

encounter but suggests that “[e]ither the lock failed under [the officers’ and

Grace’s] assault or they had a spare key.” Again, though, the video belies

this assertion where it shows that no officer used a key or exerted any

meaningful effort to open the door.

hand. (Id. at p. 159:16-18). Given Carr’s repeated testimony

that Officer 2 wielded a firearm and a flashlight at the same time,

(id. at p. 159:12-15), this would mean that the officer held a

firearm in his right hand and a flashlight in his left hand. In

fact, the portion of the video Carr reviewed during his deposition

clearly shows that Officer 2 held a flashlight -- not a firearm -

- in his right hand, and nothing in his left hand.

It is true that Officer 2’s torso was partially obscured for

several seconds once he reached and leaned in towards Carr’s

office, possibly allowing for speculation as to whether he

brandished a firearm during that time out of view of the camera.9

However, unsupported speculation cannot save Carr’s claim in light

of his own testimony. Per his deposition, Carr’s claim in this

case is that Officer 2 pointed a firearm at him as he approached

Carr’s office, something the video soundly refutes. (Id. at pp.

62:19-63:1; 159:12-160:5). By contrast, Carr does not contend

that Officer 2 entered his office first and thereafter pulled out

a firearm. Accordingly, the fact that the video does not

definitively show what Officer 2 may have done once he leaned

inside the doorway is of no import where the video shows that he

did not have a firearm in either hand leading up to that point.

9 To be clear, nothing in the video suggests that Officer 2 drew or brandished

a firearm while leaning into Carr’s office. To the extent that the officer’s

body remains visible, none of his movements are consistent with drawing a

firearm.

On this record, no reasonable juror could find that an officer

forcibly entered Carr’s office or pointed a weapon at him. Indeed,

the video affirms that no officer committed either act. It follows

that the officers did not violate Carr’s Fourth Amendment and they

therefore are entitled to summary judgment on Count One.

Consequently, no protracted discussion is necessary as to the

Town and Chief of Police; they too are entitled to summary judgment

on Count One where the officers did not violate Carr’s rights.

See e.g., 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 Two - Assault

Count Two alleges common law assault. Under Massachusetts

law, an assault is “an act which puts another in reasonable

apprehension of imminent harmful or offensive contact, that is, an

attempted battery or an immediately threatened battery.” Conley

v. Romeri, 806 N.E.2d 933, 939 n.6 (Mass. 2004) (citing Restatement

(Second) of Torts § 21 (1965)). For attempted battery assault,

the defendant must have attempted to cause physical harm to the

victim. Commonwealth v. Gorassi, 733 N.E.2d 106, 110 (Mass. 2000).

For threatened battery assault, the defendant must have engaged in

“objectively menacing” conduct with the intent to cause

apprehension of imminent physical harm. Id.

Principally for the reasons discussed above, all defendants

are entitled to summary judgment on Count Two. In light of the

video, no reasonable juror could find that anyone engaged in any

conduct that might reasonably put Carr in apprehension of imminent

harmful or offensive contact.10

C. Count Three - Trespass

Count Three alleges common law trespass. Under Massachusetts

law, a claim of trespass requires the plaintiff to show (1) actual

possession of the property at issue and (2) an unlawful entry by

the defendant, that is, an intentional entry onto the property

without permission or privilege. See Fed. Ins. Co. v. Bos. Water

& Sewer Comm’n, 583 F. Supp. 2d 225, 229 (D. Mass. 2008). There

is no dispute that Carr was in possession of the property at issue.

As it relates to whether either officer entered Carr’s

property unlawfully, the video footage shows that Officer 2 may

have briefly leaned into the threshold area of Carr’s office. Such

a de minimis intrusion into Carr’s office could potentially

constitute a trespass. See Strecker v. Tavares, Nos.

04SBQ20774G5001, DUCV200200044, 06MISC330647, and DUCV200700011,

2008 WL 1868415, at *51 (Mass. Super. Ct. Feb. 22, 2008) (“[T]hose

fence posts installed by Tavares/Sutula located on the Streckers’

10 Independently, Count Two would fail against the Town because the Massachusetts

Tort Claims Act immunizes public employers from the intentional tortious acts

of their employees. M.G.L. c. 258, § 10(c); FBT Everett Realty, LLC v. Mass.

Gaming Comm’n, 187 N.E.3d 373, 389 (Mass. 2022).

property, no matter how minimal the intrusion, constitute a

trespass.”). Even so, summary judgment is still appropriate

because, assuming an entry occurred, Officer 2 would enjoy common

law immunity for his conduct.

Under Massachusetts law, “a public official, exercising

judgment and discretion, is not liable for negligence or other

error in the making of an official decision if the official acted

in good faith, without malice, and without corruption." Nelson v.

Salem State College, 845 N.E.2d 338, 348 (Mass. 2006); see Tobin

v. Goggins, 459 N.E.2d 835, 836 (Mass. App. Ct. 1984) (common law

immunity protects public official from liability "unless actions

were done in bad faith, maliciously, or corruptly") (citation

omitted)). In determining whether an officer acted with malice,

the court takes "every presumption in favor of the honesty and

sufficiency of the motives actuating public officers in actions

ostensibly taken for the general welfare." S. Bos. Betterment Tr.

Corp. v. Bos. Redevelopment Auth., 777 N.E.2d 812, 820 (Mass. 2002)

(citation omitted).

Based on the record, the court finds the officers were

exercising good faith discretion as public officials in responding

to a call from a security guard in the middle of the night. The

record shows that the officers limited their interaction with Carr

to what was necessary in response to Grace’s call, and that Officer

2 only leaned over the threshold of Carr’s office as part of his

legitimate questioning of Carr, who was seated inside his office.

Carr himself agreed that “as soon as the officers made a

determination that there was no crime being committed and that

[Carr was] entitled to be on the property, they left [Carr] alone

and went on about their shift[.]” (Dkt. No. 38-1, p. 67:11-16).

Summary judgment is therefore appropriate on this claim.

D. Count Four – Negligent/Intentional Infliction of

Emotional Distress

Count Four alleges negligent and/or intentional infliction of

emotional distress (NIED and IIED). To prevail on a claim for

NIED, a Massachusetts plaintiff must show: “(1) negligence; (2)

emotional distress; (3) causation; (4) physical harm manifested by

objective symptomology; and (5) that a reasonable person would

have suffered emotional distress under the circumstances of the

case.” Payton v. Abbott Labs, 437 N.E.2d 171, 181 (Mass. 1982).

A plaintiff alleging IIED must 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).

For the reasons discussed above, no reasonable factfinder

could conclude on this record that any officer acted negligently,

or in an extreme and outrageous manner, or engaged in any conduct

that was likely or intended to inflict emotional distress on Carr.

Summary judgment will therefore enter on this claim.

VI. CONCLUSION

For the reasons stated above, the defendants’ motion for

summary judgment on all counts is GRANTED.

/s/ Donald L. Cabell

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

DATED: January 11, 2024