Martinez v. Hubbard et al

Filing 130

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered providing a detailed explanation for denial of Martinezs motion to strike and for sanctions [Dkt. No. 105] and Defendants motion to strike Martinezs untimely brief [Dkt. No. 118] and granting De fendants motions for summary judgment [Dkt. No. 93] and for sanctions [Dkt. No. 114]. With respect to sanctions, plaintiffs counsel, Messrs. Fischer and Brodie, whom are found to be jointly and severally liable for the sanctionable conduct, are here by ORDERED to pay attorneys fees to Defendants in the amount of $1,380.00. The Clerk shall enter judgment for the Defendants including an award of $1,380.00 in attorneys fees to Defendants, on the basis of this Memorandum. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MARCOS A. MARTINEZ,
Administrator of the Estate
of JEFFREY MARTINEZ,

)
)
)
)
Plaintiff,
)
)
v.
)
)
WILLIAM HUBBARD, BERNARD
)
HICKS, ROBERT P. COLBURN,
)
DONALD CAISEY, and SCOTT ROBY,)
)
Defendants.
)
)

CIVIL ACTION NO.
09-11431-DPW

MEMORANDUM AND ORDER
March 18, 2016
Marcos Martinez, as administrator of the estate of Jeffrey
Martinez, filed this action against Boston Police Officers
William Hubbard, Bernard Hicks, Robert Colburn, Donald Caisey,
and Scott Roby, for assault and battery and constitutional
violations within the scope of 42 U.S.C. § 1983 and the
Massachusetts Civil Rights Act.

The Defendants moved for

summary judgment [Dkt. No. 93], asserting that (1) there is no
evidence in the record specific to any named defendant
establishing that he struck the vehicle in which Martinez was a
passenger, and (2) even if there were, the defendants are
entitled to qualified immunity.

In opposing the summary judgment motion, Martinez sought to
open a second front by filing a motion [Dkt. No. 105] to strike
the defendant’s statement of material facts and for sanctions.
That collateral initiative by plaintiff’s counsel backfired
when, at the summary judgment motion hearing, I raised the
question whether Martinez’s counsel should themselves be
sanctioned for failing to comply with Local Rule 7.1 with
respect to their Motion to Strike and for Sanctions.

I

instructed Martinez’s counsel to show cause by May 3, 2012 why
they should not be sanctioned.

I directed Defendants’ counsel

to pursue the matter if they chose by filing a motion seeking
sanctions and the costs incurred defending against Martinez’s
motion.

This the Defendants did through Docket No. 114.

Martinez’s counsel did not respond to the Order to Show Cause,
but did respond to the Defendants’ Motion for Sanctions.
At the summary judgment hearing, I also requested
supplemental briefing on Count III of Martinez’s First Amended
Complaint.

My directions during the hearing and subsequent

electronic order specified that Defendants’ supplemental brief
was due by May 10, 2012, and Martinez’s response was due by May
17, 2012.

Defendants filed their brief, together with their

motion for sanctions [Dkt. No. 114], but Martinez’s attorneys —
although filing their opposition to sanctions on May 17, 2012 —
2

did not bother to file a supplemental brief on behalf of
Martinez until June 1, 2012, two weeks after my deadline.
Defendants moved [Dkt. No. 118] to strike that brief as
untimely.
By electronic order dated September 30, 2012, I disposed of
the various pending motions promising a memorandum of opinion
providing an extended explanation for those orders. This is that
memorandum.
I. BACKGROUND1
At approximately 1:45 a.m. on October 1, 2006, Hubbard was
on patrol in his police cruiser on Magnolia Street in
Dorchester, where a large number of people were leaving the area
following a party.

Officer Hubbard pulled behind an Acura which

had four people inside: Daniel Rodriguez, Andrew Vongsavay,
Rodriguez’s girlfriend Melissa Sian, and Martinez.

Rodriguez

was driving, Vongsavay was in the passenger seat, and Martinez
and Sian were in the rear, on the driver’s side and passenger’s
side, respectively.

1

Because this case was before me on a motion for summary
judgment, I recount the facts in the light most favorable to the
nonmoving party, Martinez. In places where there are pronounced
disputes over facts, I note the parties’ differences, but for
purposes of deciding the motion, I draw all inferences and
resolve all genuine factual disputes in Martinez’s favor.
3

Hubbard claimed to see a crack in the windshield on the
driver’s side of the Acura which he thought would render the car
unsafe to drive.2

He then checked the license plates of the

Acura on his police-vehicle laptop, and discovered that they
were reported as stolen.3
Hubbard attempted to pull the Acura over by turning on his

2

Martinez claims that on summary judgment, I must take as true
his contention that the crack was minimal or would be invisible
to a person from Hubbard’s perspective. In support of this,
Martinez cites “the credible testimony of both Rodriguez and his
mother, both dis-interested non-parties” that “the crack was a
small hairline crack on the passengers side under the
registration sticker and only visible in bright sunlight if the
viewer looked at it from the right angle.” The assertion that
the driver of the vehicle involved in a fatal accident and his
mother are “dis-interested,” in a case claiming police officers
caused the accident, is, at best, implausible. In any event,
the existence of the crack itself is not in dispute, and is
irrelevant because it is undisputed that Hubbard ran the Acura’s
plates and discovered they were reported as stolen before
pulling the vehicle over.
3

Martinez claims the facts in the light most favorable to him
show “that defendant Hubbard is lying about having seen the
crack in the windshield” and therefore a reasonable jury could
find that Hubbard “had no reason to check the plates and did not
discover the status of the plates until after the defendants
rammed the Rodriguez vehicle.” Martinez fails to dispute
Hubbard’s claim---that he checked the Acura’s license plates
before pulling the car over---with any citation to facts in the
record. Martinez’s assertion that Hubbard is lying about when
he discovered that the license plates were stolen is simply
conjecture without adequate foundation to create a genuine issue
of material fact.
4

police cruiser’s lights.
the vehicle.

He exited his cruiser and approached

As Hubbard approached the Acura, however,

Rodriguez drove off.
Hubbard returned to his cruiser and followed in pursuit
with his lights on.

Rodriguez drove away at high-speeds---an

estimated 60-70 miles per hour---through Dorchester.

Rodriguez

drove through at least one4 red light as he drove from the party
onto Columbia Road, past the intersection at Blue Hill Avenue,
onto Jewish War Veteran’s Memorial Drive, and past the Franklin
Park Zoo.

At this point, on Jewish War Venteran’s Memorial

Drive, Officer Colburn joined the pursuit in his police cruiser.
Rodriguez proceeded through the rotary at the end of Jewish
War Veteran’s Memorial Drive, onto a ramp.

At the bottom of the

ramp, a number of cars were stopped at a red light.

As

Rodriguez and police officers approached, the vehicles pulled
out of the way, and Rodriguez took a left through the red light
onto Hyde Park Avenue.

Officer Hicks, who had been approaching

from South Street, observed the Acura and then Hubbard and
Colburn go through the intersection.

4

Hicks followed in pursuit.

Vongsavay, the front seat passenger in the Acura, said that
Rodriguez “didn’t stop, no red lights no nothing” and that he
was “blowing everything, red lights, stop signs.” Rodriguez
admits to driving through one red light.
5

Hubbard got a flat tire after going through the
intersection, and pulled to the side of the road shortly
thereafter.5

Officers Roby and Caisey, who were in an unmarked

vehicle, joined in the pursuit just before Hubbard got a flat
tire, but pulled over by Hubbard to check if he was ok.
Officers Colburn and Hicks continued in pursuit of the Acura
after also checking to make sure Hubbard was ok.

5

Martinez, in one of the more confusing and contradictory
portions of his generally confusing and contradictory
submissions, admits that Hubbard struck the curb and that photos
show Hubbard’s vehicle with a flat tire, but nevertheless claims
“that a jury could find that he sustained the flat tire when he
rammed the Acura.” This is flatly contradicted by Martinez’s
subsequent and repeated admissions that “Defendants Colburn and
Hicks were the only two police vehicles close enough to the
Rodriguez Acura to have rammed it.” Pl.’s Resp. to Def.’s
Statement of Undisputed Facts ¶¶ 55, 56, 57, Dkt. No. 99.
Indeed, Martinez admits that Hubbard’s cruiser “was disabled” by
the flat tire, id. at ¶ 54, and that “[a]s the testimony of the
defendants’[sic] themselves establishes, after defendant Hubbard
had a flat tire, defendant Colburn and Hicks continued to pursue
the vehicle down Hyde Park Avenue.” Id. at ¶ 55.
There can be no dispute that Hubbard got a disabling flat tire;
pulled over, and exited his vehicle to inspect the damage; and
was passed by officers Colburn and Hicks before the Acura
crashed. No rational jury could find, as Martinez tacitly
admits, that Hubbard could have nevertheless returned to his
vehicle, re-entered the high-speed chase, passed Colburn and
Hicks in his disabled cruiser, and rammed Rodriguez’s Acura all
within the approximately half-mile between where Hubbard hit the
curb and where the Acura ran off the road.
6

In her deposition, Rodriguez’s girlfriend said that as they
were driving down Hyde Park Avenue, she turned around and looked
out the back window of the car, where she saw a police cruiser
so close that she “couldn’t even see their headlight[sic].”

As

she turned back around in her seat, she felt a bump on the right
side of the Acura.

Rodriguez then lost control of the car,

which drove onto the sidewalk, where it ultimately hit a pole.
Colburn drove past the scene of the accident before turning
around and driving back to it.
crash.

Hicks arrived moments after the

Roby and Caisey heard a dispatch that the Acura had

crashed, and drove down Hyde Park Avenue to the scene.
The occupants of the vehicle were taken to Children’s
Hospital.

Rodriguez’s girlfriend sustained numerous fractures,

and Martinez, who had been seated next to her, died of his
injuries shortly after arriving at Children’s Hospital.
II. STANDARD OF REVIEW
A movant is entitled to summary judgment 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.”
R. CIV. P. 56(a).

FED.

“A dispute is genuine if the evidence about

the fact is such that a reasonable jury could resolve the point
in the favor of the non-moving party,” and “[a] fact is material
7

if it has the potential of determining the outcome of the
litigation.” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782
(1st Cir. 2011) (citation omitted).

However, “conclusory

allegations, improbable inferences, and unsupported speculation”
are insufficient to create a genuine issue of material fact to
survive summary judgment.

Sullivan v. City of Springfield, 561

F.3d 7, 14 (1st Cir. 2009) (quotation and citation omitted).
As I must, I “view the facts in the light most favorable to
the party opposing summary judgment.”

Rivera–Colón v. Mills,

635 F.3d 9, 10 (1st Cir. 2011).
III. MOTIONS TO STRIKE AND FOR SANCTIONS
At the outset, I address the motions to strike or motions
for sanctions that bear upon the summary judgment motion before
turning to the merits of the summary judgment motion itself.
Martinez filed a motion styled as a Motion to Strike and For
Sanctions, while the Defendants filed a Motion to Strike
Martinez’s untimely supplemental brief, and a Motion for
Sanctions for violation of Local Rule 7.1.

I address each

motion in turn.
A.

Martinez’s Motion to Strike and For Sanctions
Although styled as a Motion to Strike and For Sanctions,

Martinez’s motion [Dkt. No. 105] does not request that I strike
anything---indeed, the word “strike” does not appear at all
8

except in the title.6

Instead, Martinez’s motion seeks Rule 11

sanctions and attorneys’ fees expended responding to defendants’
statement of undisputed facts.

Since Federal Rule of Civil

Procedure 11(c) requires that any motion for sanctions “be made
separately from any other motion,” I view Martinez’s motion as
one for sanctions only.

FED. R. CIV. P. 11(c).

Martinez, however, failed to comply with Local Rule 7.1 in
filing this motion.7

Although plaintiff’s counsel attached a 7.1

certification to his motion to strike, it is inadequate
boilerplate.

In relevant part, Martinez’s counsel’s 7.1

certification stated: “Now comes Counsel for the plaintiffs who
certify’s [sic] that he called counsel for the defendants by
phone on February 3, 2012, and that counsel.”

Such a

certification is incomplete; by terms it fails to certify that
plaintiff’s counsel notified defendants’ counsel of the motion
to strike and for sanctions.

Defendants’ counsel, in his

opposition to the motion to strike and for sanctions, contends

6

The words “move to strike” appear a number of times in
Martinez’s response to the defendants’ statement of undisputed
facts, but that document is not a motion and Martinez’s
objections are not well founded in any event.
7

Local Rule 7.1(a)(2) provides: “No motion shall be filed unless
counsel certify that they have conferred and have attempted in
good faith to resolve or narrow the issue.”
9

that Martinez’s counsel never indicated during their 7.1
conference that he would be moving for sanctions.

This alone

would be reason enough to deny Martinez’s motion.

See United

States v. Vaughan, 875 F. Supp. 36, 46 (D. Mass. 1995) (denying
a motion to suppress in part based on counsel’s failure to
comply with Local Rule 7.1).

In fact, that failure is

sufficient to warrant sanctions against Martinez’s counsel as I
suggested at the April 26 hearing and as I discuss in Section
III.C below.

See Converse, Inc. v. Reebok Int’l, Ltd., 328 F.

Supp. 2d 166, 171 (D. Mass. 2004) (sanctioning Converse $15,000
for failure to comply with Local Rule 7.1).
Even if Martinez’s counsel had complied with Local Rule
7.1, Rule 118 sanctions would not be appropriate against

8

Federal Rule of Civil Procedure 11(c) allows a district court
to impose sanctions if a party violates subsection (b) of Rule
11, which reads:
(b) Representations to the Court. By presenting to
the court a pleading, written motion, or other
paper--whether by signing, filing, submitting, or
later advocating it--an attorney or unrepresented
party certifies that to the best of the person's
knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal
10

defendants in this case.

A district court has “broad

discretion” when deciding whether to impose Rule 11 sanctions.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 407 (1990).
Here, I find nothing in defendants’ statement of undisputed
facts that warrants the imposition of sanctions under Rule 11.
The statement systematically sets forth the defendants’ view of
the factual circumstances.
B.

It is not a ground for sanctions.

Defendants’ Motion to Strike
As noted above, at the hearing on the Defendants’ motion

for summary judgment, I ordered the parties to file supplemental
briefs on Martinez’s Massachusetts Civil Rights Act claim.
Defendants were ordered to submit their brief by May 10, 2012,
and Martinez was ordered to respond by May 17, 2012.

Defendants

contentions are warranted by existing law or by
a nonfrivolous argument for extending,
modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary
support or, if specifically so identified, will
likely have evidentiary support after a
reasonable opportunity for further investigation
or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a
lack of information.
FED. R. CIV. P. 11(b).
11

complied with my order, filing their brief on May 10, 2012.
Martinez’s counsel did not, filing his brief on June 1, 2012,
more than two weeks late.
As a consequence, Defendants moved to strike Martinez’s
supplemental brief as untimely filed [Dkt. No. 118].

Martinez’s

counsel opposed, and explained his tardiness as an unfortunate
consequence of his mistaken interpretation of the directions I
gave to the parties at the hearing.

At that hearing, I gave the

Defendants fourteen days from the date of the hearing to file
their supplemental brief and Martinez twenty-one days from the
date of the hearing to file his responsive brief.

Fourteen days

from April 26, 2012 was May 10, 2012; twenty-one days from April
26, 2012 was May 17, 2012.

The electronic order I entered on

the docket after the hearing listed May 10 and May 17 as the
deadlines for the Defendants’ brief and Martinez’s response,
respectively.
Martinez’s counsel now claims that he understood “twentyone days” to mean “twenty-one days after the Defendants file
their supplemental brief,” even though it was clear in context
that I gave counsel twenty-one days to file his supplemental
response from the date of the hearing.

In fact, at the hearing

I clarified that Martinez’s counsel “will have May 17th for a
response,” to which Attorney Brodie responded “Wonderful. Thank
12

you.”

Even a cursory glance at the electronic order would have

disabused counsel of his misconception and confirmed the
deadlines the Clerk entered after the hearing I set for the
briefing.

Apparently, Martinez’s counsel chose not to consider

the order, or if he did, did not think that any potential
conflict warranted a phone call to the Clerk for clarification
or a motion for an extension of time.
A district court is given substantial leeway in enforcing
the deadlines it sets and orders it issues.
Roberts, 978 F.2d 17, 21 (1st Cir. 1992).

United States v.
Here, although the

Defendants’ motion to strike is certainly warranted, I decline
to strike Martinez’s untimely response.

I have read Martinez’s

filing and, as discussed below, granted summary judgment for the
Defendants despite the arguments Martinez offers in that
response.
C.

Defendants’ Motion for Sanctions
Martinez’s counsel also failed to comply with Local Rule

7.1 in filing his Motion to Strike and for Sanctions against the
Defendants.

At my invitation, Defendants moved for sanctions

against Martinez’s counsel.
As noted above, the Rule 7.1 certification that Martinez’s
counsel filed with his Motion to Strike and for Sanctions was
incomplete because it failed to certify that Martinez’s counsel
13

had notified Defendants’ counsel of his intention to move for
sanctions.

Not only was the certification incomplete, but at

the time it was filed, Martinez’s counsel had not in fact
“conferred and [] attempted in good faith to resolve or narrow
the issue” of sanctions with counsel for Defendants at all.
The parties did not confer pursuant to Rule 7.1 until
February 3, 2012.9

At 3:22 p.m., Attorney Fischer (counsel for

Martinez) left a voicemail for Defendants’ counsel.

That

voicemail stated:
Andrew Fischer. I’m at 617-423-7904. This is a Rule
7.1 inquiry. I’m asking that you withdraw the contested
facts from your statement of facts that are disputed in
our counter-statement of material facts. If they are
contested, they shouldn’t be in there. Can you let me
know whether you’ll withdraw them or whether I should
file a motion to strike and for sanctions?
Defendants’ counsel returned Attorney Fischer’s call sometime
between 4:00 p.m. and 4:30 p.m., but was unable to reach him and
instead spoke to another attorney in Attorney Fisher’s office,
Attorney Andrew Brodie (who also represents Martinez).

Attorney

Brodie did not suggest his firm’s intention to move for
sanctions during their conversation, and admits in his affidavit

9

At the April 26, 2012 hearing, I ordered the parties to file
affidavits concerning the Rule 7.1 certification. The following
facts are drawn from those sworn affidavits.
14

that they only conferred over moving to strike disputed facts.
At 4:47 p.m., Attorney Fischer filed the motion to strike
and for sanctions with the insufficient Rule 7.1 certification
under his CM/ECF account.

That motion, as noted above, was in

substance solely a motion for sanctions, which the submissions
make clear the parties did not in fact “confer” about.

See

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 475 (3d ed. 1986) (defining
confer as “to hold conversation or conference now typically on
important, difficult, or complex matters”).
A Local Rule 7.1 certification is not an empty exercise.
Local Rule 7.1 serves a meaningful dual role: it fosters
discussion between parties about matters before they come before
the court, and it preserves scarce judicial resources.10

Failure

on the part of a litigant to comply with the rule not only
affects the other parties, but it impedes the court’s process as
well.

And, as noted above, failure to comply with the rule

constitutes sufficient grounds for a monetary sanction under the
court’s inherent power to control its docket.

Converse, Inc.,

328 F. Supp. 2d at 171.

10

Indeed, as my late-colleague Judge Lindsay once noted, Rule
7.1 “was designed primarily for the benefit of an overburdened
district court.” Converse, Inc. v. Reebok Int’l Ltd., 328 F.
Supp. 2d 166, 171 (D. Mass. 2004).
15

In this case, Martinez’s counsel has demonstrated a
concerted disregard for both Local Rule 7.1 and Federal Rule
Civil Procedure 11, which governs motions for sanctions.

There

was no merit to Martinez’s motion for sanctions, and it did not
comply with either Local Rule 7.1 or Federal Rule 11.

Counsel

for the Defendants expended 1.1 hours reviewing and responding
to Martinez’s motion to strike and for sanctions, and 5.8 hours
drafting defendant’s own request for sanctions, at what I find
to be the reasonable rate of $200 per hour.

Because I find that

sanctions are appropriate,11 I will award Defendants compensation
amount of $1,380.
IV. MOTION FOR SUMMARY JUDGMENT
Defendants moved for summary judgment on Martinez’s various
claims.

For the reasons below, I will grant summary judgment

for all of the defendants on all of Martinez’s claims.

11

Although Martinez’s attorneys understandably do not on their
own raise a defense of, or seek to mitigate their actions by
recourse to, some variant on a theme of subcompetence, the
record provides a basis for finding the legal work they
performed in this case insufficiently attentive to professional
standards. I have considered sua sponte whether mitigation of
sanctions might be justified on this ground, but find that it is
not. The unsupported resort by Martinez’s counsel to sanction
practice against Defendants’ counsel suggests they were aware —
at least to some degree — of the costs, benefits and demands of
sanctions initiatives. Having embarked on such initiatives
themselves, they will be held to the consequences when that
approach to litigation is thereafter supportably turned against
them.
16

A.

Assault and Battery
1.

Assault

In Massachusetts, the common law tort of civil assault
requires a showing that the defendant (1) acted intending to
cause a harmful or offensive contact with the person of another,
and (2) the other was thereby put in such imminent apprehension.
Restatement (Second) of Torts § 21.

Therefore, to survive on a

motion for summary judgment, Martinez must show that one of the
defendants intended to hit Rodriguez’s car, and that Martinez (a
passenger in the car) was put in apprehension of an imminent
harmful or offensive contact by the officer.
Martinez did not meet his burden of proof on either element
based on the record before me.

Martinez admits that he cannot

point to the particular officer whose car struck the Acura, and
therefore he cannot show that any one officer acted with the
requisite intent.

See Pl,’s Response to Def.’s Statement of

Undisputed Facts ¶ 33 (“Plaintiff is unable to determine which
of the defendants rammed the Acura and killed the plaintiff . .
. .”).
Furthermore, there is no evidence in the record that
Martinez was ever put in apprehension of the imminent or harmful
contact.

While it is difficult to imagine that he was not aware

of the police cruisers chasing the Acura, there is nothing in
17

the record to prove that he was in apprehension of an imminent
harmful or offensive contact.

Indeed, of the three surviving

occupants of the vehicle, only Sian stated that she turned
around and saw officers close to the rear of the car immediately
preceding the accident.

In their depositions, Rodriguez,

Vongsavay, and Sian did not provide any circumstantial evidence
pointing to Martinez’s apprehension of an imminent contact.
Because there is no evidence in the record that any
specific officer had the requisite intent,12 or that Martinez was

12

This is not a situation where the approach of Summers v. Tice,
199 P.2d 1 (Cal. 1948) would apply to make the multiple
defendants jointly and severally liable. In Summers, the
plaintiff was injured when two hunters negligently shot in his
direction. Although the plaintiff was unable to prove which of
the two hunters had fired the shot that struck him, the court
held both hunters jointly and severally liable for the entire
loss. To recover, the plaintiff in Summers was required to
prove the requisite negligence of all of the actors who could
have caused his injury in order to get joint and several
liability. Id. at 85-87. Here, only one of several defendants
is alleged to have hit the Acura, but the plaintiff is unable to
prove which one of the many defendants is responsible. Martinez
has no evidence of the intent of any one of the officers, let
alone proof that all shared the same requisite intent necessary
to make out a case for civil assault or, as discussed below,
battery. See Eldgredge v. Town of Falmouth, MA, 662 F.3d 100,
105-06 (1st Cir. 2011) (rejecting joint tortfeasor doctrine for
§ 1983 action where officers in cruisers were speeding while
responding to a 911 call, one cruiser stopped suddenly to
question two people on the side of the road, and another cruiser
struck and injured one of the two people when the officer
driving it was unable to stop in time). Thus, even assuming
Massachusetts were to adopt the California approach in Tice, I
find the factual circumstances here well outside the Tice
paradigm.
18

himself placed in apprehension of an imminent harmful contact,
he cannot make out a case for civil assault.

Summary judgment

on plaintiff’s assault claim is warranted.
2.

Battery

In Massachusetts, the common law tort of civil battery
requires a showing that the defendant (1) acted intending to
cause a harmful or offensive contact with the person of another,
and (2) a harmful contact directly or indirectly resulted.
Waters v. Blackshear, 591 N.E.2d 184, 185 (Mass. 1992).

As

noted above, Martinez admits that he cannot point to the
particular officer whose car struck the Acura, and therefore he
cannot show that any one officer acted with the requisite
intent.13

13

In his opposition to defendants’ motion for summary judgment,
Martinez attempts to salvage these claims, and others, by
suggesting for the first time that the defendants are engaged in
a conspiracy to cover-up the identity of the person who struck
the Acura and shield him from liability. The word “conspiracy,”
or indeed the factual basis for one, does not appear anywhere in
the First Amended Complaint. Such “unsupported speculation” is
insufficient to survive summary judgment. Sullivan v. City of
Springfield, 561 F.3d 7, 14 (1st Cir. 2009).
In any event, the case Martinez cites, Gonsalves v. City of
New Bedford, 939 F. Supp. 921 (D. Mass. 1996), is inapt. There,
an arrestee was beaten to death by police in the police station,
and evidence showed that multiple police officers denied the
arrestee medical attention to hide the nature of his injuries
and later falsified reports about the incident. The extent of
19

Consequently, summary judgment must enter for the
defendants on Count I.
B.

Unlawful Seizure Under § 1983 and the MCRA
1.

Fourth Amendment

To make out a § 1983 claim for an unlawful seizure in
violation of the Fourth Amendment, Martinez must show that a
specific officer intentionally acquired physical control over
him.

Brower v. County of Inyo, 489 U.S. 593, 596 (1989).

No

seizure occurs, and thus no Fourth Amendment violation is
possible, until “there is a governmental termination of freedom
of movement through means intentionally applied.”
(emphasis deleted).

Id. at 597

It is not enough, in the pursuit context,

that an officer “pursued and the pursuit resulted in a collision
with another police vehicle.”
(1st Cir. 1993).

Horta v. Sullivan, 4 F.3d 2, 10

Rather, to make out a Fourth Amendment seizure

in the pursuit context, Martinez must show that the collision
was intended by the officer as the means to end the pursuit.
Martinez faces the same hurdle he has failed to clear with
respect to the assault and battery claim.

He has admitted that

the arrestee’s injuries made it clear, however, that they had
been caused by force; the arrestee had not sustained them merely
falling in his cell. Here, unlike Gonsalves, there is nothing
resembling a cover-up alleged, let alone such a cover-up
supported by the record before me.
20

he cannot show which officer caused the collision and crash, and
therefore “seized” him pursuant to the Fourth Amendment.
Martinez has failed to adduce sufficient evidence through
specific citation to the record to establish that any one of the
named defendants caused the accident, and each defendant has
denied striking Rodriguez’s Acura.14

Thus, Martinez is unable to

show the requisite intent of the officer who caused the crash,
because he cannot say which officer caused the crash in the
first place.

Therefore, summary judgment is warranted on

Martinez’s Fourth Amendment unlawful seizure claim.
2.

Violation of the Massachusetts Civil Rights Act

Martinez also claims that officers seized him in violation
of Article 14 of the Massachusetts Declaration of Rights, which

14

Indeed, as noted above, Martinez has repeatedly, although
inconsistently, taken the position that only Colburn and Hicks
were close enough to have been the officers responsible for
having hit the Acura. See Pl.’s Resp. to Def.’s Statement of
Undisputed Facts ¶¶ 55, 56, 57, Dkt. No. 99 (admitting that
“Defendants Colburn and Hicks were the only two police vehicles
close enough to the Rodriguez Acura to have rammed it”); id. at
¶¶ 69-70 (admitting that “Officer Roby’s unmarked vehicle came
to a stop in the area of Walk Hill Street where Officer Hubbard
had pulled over” and that “Officers Caisey and Roby heard a
dispatch that the Acura had crashed and continued south on Hyde
Park Avenue. As their cruiser approached the area of 362 Hyde
Park Avenue, Officer Caisey observed police vehicles already
stopped in the area and the Acura off the road by the soccer
field. He did not observe the Acura crash”). But see id. ¶ 72
(claiming “the jury could find that it was the Colburn vehicle,
the Hicks vehicle or the vehicle operated by defendant Roby or
Caisey that rammed the Rodriguez Acura”).
21

he claims provides more protection than the Fourth Amendment.
Under Massachusetts law, “a pursuit, which, objectively
considered, indicates to a person that he would not be free to
leave the area (or to remain there) without first responding to
a police officer’s inquiry, is the functional equivalent of a
seizure.”
1996).

Commonwealth v. Stoute, 665 N.E.2d 93, 97 (Mass.

“Unless an officer has a reasonable suspicion to justify

this type of pursuit,” such a pursuit-as-seizure will violate
Article 14.

See id.

Reasonable suspicion inquiry turns on the facts and
inferences known to the officer at the time, taken as a whole.
United States v. Arvizu, 534 U.S. 266, 273 (2002).

Reasonable

suspicion exists where the officer “has a particularized and
objective basis for suspecting legal wrongdoing.”

Id.

Here, even when the facts are taken in the light most
favorable to Martinez, Hubbard had reasonable suspicion to
support his pursuit of Rodriguez’s Acura.

Thus, assuming, as I

do not, that Martinez has raised a genuine dispute whether a
crack existed in the Acura’s windshield,15 and finding, as I do,
that Hubbard discovered the Acura’s license plates were reported

15

As I recognized above, the only dispute is about the size of
the crack and whether Officer Hubbard could see it from his
vantage point.
22

stolen by querying the license plate number before signaling for
the car to pull over,16 the discovery of the stolen license plate
is sufficient on its own to ground reasonable suspicion.

Thus,

before the pursuit ever began, Hubbard had reasonable suspicion
(indeed he had probable cause), sufficient to pull Rodriguez
over.

Therefore, Martinez’s claim under Article 14 fails, and

summary judgment for the defendants is appropriate.17
C.

Due Process Violation
To make out a claim for a due process violation---that is,

the deprivation of life, liberty, or property without due
process of law---Martinez must show not only that an officer’s
conduct exhibited “deliberate indifference” with respect to his
rights, but that the officer’s conduct “shocks the conscience.”

16

As noted above, Martinez failed to dispute, in any nonconclusory sense, with citations to facts in the record,
Hubbard’s claim that he ran the Acura’s license plate before
pulling the car over. Thus, Hubbard’s statement that he
discovered that the license plates were stolen before pulling
over the Acura is not a fact about which there is a genuine
dispute.
17

Summary judgment would also be appropriate because a “direct
violation of an individual’s constitutional right does not give
rise to a MCRA violation.” Howe v. Town of North Andover, 854
F. Supp. 2d 131, 146 (D. Mass. 2012). That is because the MCRA
requires that the defendant threaten, intimidate, or coerce the
plaintiff in order to cause the plaintiff to give up a
constitutional right, Swanset Dev. Corp. v. City of Taunton, 668
N.E.2d 333, 337 (Mass. 1996), and the record does not suggest
any such effort by police here to get Martinez to give up a
constitutional right.
23

Evans v. Avery, 100 F.3d 1033, 1038 (1st Cir. 1996).

This is a

demanding standard; “the acts must be ‘such as “to offend even
hardened sensibilities,”’ ‘uncivilized [ ] and intolerable,’
‘offensive to human dignity,’ or must constitute force that is
brutal, inhumane, or vicious.”

Cummings v. McIntire, 271 F.3d

341, 344 (1st Cir. 2001) (citations and quotations omitted)
(alteration in original).
In Lewis, the Supreme Court noted that to obtain redress on
a due process claim arising from a sudden pursuit case, a
plaintiff must show that the officer had “a purpose to cause
harm unrelated to the legitimate object of arrest.”
Sacramento v. Lewis, 523 U.S. 833, 836 (1998).

County of

“[H]igh-speed

chases with no intent to harm suspects physically or worsen
their legal plight do not give rise to liability under the
Fourteenth Amendment, redressable by an action under § 1983.”
Id. at 854.
Here again, Martinez cannot point to which officer collided
with the Acura.

Consequently, he also cannot identify any

particular officer who may have engaged in conduct that “shocks
the conscience.”

Even if Martinez could overcome that hurdle,

there is no evidence that any defendant had “a purpose to cause
harm” sufficient to reach the heightened level of
blameworthiness required by Lewis.
24

Martinez points to purported violations of Boston Police
Rule 301 and argues that there is at least a jury question as to
whether the officers’ conduct “shocks the conscience.”

That

Rule, dated September 14, 1999, outlines the Boston Police
guidelines and procedures for vehicular pursuits.

It notes

that:
Generally, pursuit driving is not justified and is
prohibited unless the occupants of the vehicle are known
to be wanted for the commission or the attempted
commission of a violent or life threatening felony or
the vehicle is being operated in an erratic or dangerous
manner which poses a threat of harm to the public if it
is not stopped. The commission of a minor motor vehicle
violation and/or operating a stolen motor vehicle are
not sufficient to meet the above criteria.
Id. (emphases added).

Whether officers complied with Rule 301

would, of course, be a jury question.
However, summary judgment remains appropriate for the
officers because a violation of a police rule does not support
the proposition that any officer, let alone one specified by the
plaintiff as the one who caused the Acura to crash, acted with
“a purpose to cause harm unrelated to the legitimate object of
arrest.”

Lewis, 523 U.S. at 836.

In the context of harm caused

to an innocent bystander, the fact that officers had violated
department regulations and ignored orders to stop the pursuit
has been found to be insufficient to show that their conduct
shocked the conscience.

See Ward v. City of Boston, 367 F.
25

Supp. 2d 7, 13 (D. Mass. 2005).

Likewise, the fact that some

officer may have violated Rule 301 in that circumstance is
insufficient to show that his conduct was so depraved as to
shock the conscience.
Because there is no evidence in the record that any officer
acted with the intent “to cause harm unrelated to the legitimate
object of arrest,” summary judgment is warranted.
D.

Equal Protection Violation
Finally, Martinez makes an equal protection claim, arguing

that Hubbard had no reasonable suspicion to stop the vehicle in
the first place, other than the race of its occupants.

To avoid

summary judgment, Martinez must “tender competent evidence that
a state actor intentionally discriminated against h[im] because
[]he belonged to a protected class.”

Alexis v. McDonald’s

Rests. of Mass., Inc., 67 F.3d 341, 354 (1st Cir. 1995).
Even when the facts are taken in the light most favorable
to him, Martinez has not adduced competent evidence that Hubbard
intentionally discriminated against him because of his race.
Though Martinez claims that Hubbard lacked reasonable suspicion
to stop the Acura, as I noted above, there is no genuine dispute
that Hubbard discovered that the Acura’s license plates were
stolen before pulling the vehicle over.

26

Thus, it is undisputed

that Hubbard had a non-discriminatory reason to initiate the
stop.
Courts have held that a plaintiff’s equal protection claim
may stand even if his arrest was valid and supported by probable
cause when the plaintiff sufficiently alleged and provided
evidence of intentional discrimination on the basis of race or
another protected class.

See, e.g., Johnson v. Morel, 876 F.2d

477, 479 (5th Cir. 1989) (per curiam) (holding that plaintiff
stated viable Equal Protection Clause claim where officer
humiliated and harassed the plaintiff on basis of race, prior to
and during a lawful arrest), overruled on other grounds, Harper
v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994).
Here, however, Martinez’s only “evidence” of intentional
discrimination on the basis of race is the purported absence of
reasonable suspicion to pull over the Acura and the sheer ipse
dixit that Hubbard pursued the Acura “solely because the
occupants were minority youths.”18

As noted above, it is

18

Martinez’s entire argument in support of his Equal Protection
claim is as follows:
Here, the facts at summary judgment establish that the
plaintiff and his companions, as minority youth, are
members of a protected class and that defendant Hubbard
attempted to pull over and then pursued the Rodriquez
vehicle, not because of any reasonable suspicion, but
solely because the occupants were minority youths.
Plaintiff, in Section A(2) [the section of his brief
27

undisputed that Hubbard had reasonable suspicion to pull over
the Acura for stolen license plates.

Therefore, summary

judgment is appropriate on Martinez’s equal protection claim,
because Martinez has failed to “tender competent evidence that a
state actor intentionally discriminated against h[im] because
[]he belonged to a protected class.”
E.

Alexis, 67 F.3d at 354.

Qualified Immunity
Because there is no identified defendant who can be held

liable for any of the claims Martinez makes, I have no occasion
to reach the availability of qualified immunity for any
defendant.

I note, however, in light of the Supreme Court’s

decision in Scott v. Harris, 550 U.S. 372 (2007), there is no
basis to contest that given the recklessness with which
Rodriquez was driving the Acura, the evidence of record
establishes as a matter of law that in this case any identified

arguing that Hubbard could not have seen the Acura’s
windshield crack and therefore is lying about checking
its license plates], has shown that defendant Hubbard
could not and did not observe motor vehicle violations
that would provide justification for the stop, much less
the subsequent pursuit.
Thus, defendant Hubbard’s attempted stop and pursuit of
the vehicle in which the plaintiff was a passenger had
the discriminatory intent necessary to support a claim
for an equal protection violation.
28

police officer would have been acting reasonably in the pursuit
of the car.
V. CONCLUSION
For the reasons set forth above, I DENIED Martinez’s motion
to strike and for sanctions [Dkt. No. 105] and Defendants’
motion to strike Martinez’s untimely brief [Dkt. No. 118] and
GRANTED Defendants’ motions for summary judgment [Dkt. No. 93]
and for sanctions [Dkt. No. 114].

With respect to sanctions, I

now order the plaintiff’s counsel, Messrs. Fischer and Brodie,
whom I find to be jointly and severally liable for the
sanctionable conduct, to pay attorneys fees to Defendants in the
amount of $1,380.00.

The Clerk shall enter judgment for the

Defendants including an award of $1,380.00 in attorneys’ fees to
Defendants, on the basis of this Memorandum.19

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

19

I note that I summarily granted Defendants’ Motion [Dkt. No.
16] to dismiss claims of municipal and supervisor liability as
inadequately pled. Since the absence of an underlying
constitutional claim by municipal employees forecloses the
municipal claims as a matter of law, that finding is sufficient
to support judgment for all defendants in this matter.
29