Green v. McCarthy et al

Filing 66

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: " In accordance with the foregoing, the motion for summary judgment motion of defendant McCarthy (Docket No. 32 ) is, with respect to the claims under the Fifth, Eighth and Fourteenth Amendments in Count IV, ALLOWED, but is otherwise DENIED. So ordered. " (Moore, Kellyann)

United States District Court
District of Massachusetts
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JONATHON GREEN,
Plaintiff,
v.
TIMOTHY MCCARTHY,
CITY OF BOSTON,
EDWARD F. DAVIS,
Defendants.
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Civil Case No.
09-11705-NMG

MEMORANDUM & ORDER
GORTON, J.
Currently before the Court is the motion for Summary
Judgment of defendant Timothy McCarthy (“McCarthy”) and
plaintiff’s opposition thereto.
I.

Factual Background
On May 7, 2007, plaintiff Jonathon Green (“Green”) was at a

7-11 store on West Newton Street in Boston, Massachusetts.
McCarthy, a Boston Police Officer, was also at the store
apparently in an off-duty capacity.

Green alleges that he became

concerned that employees of the store were inappropriately
surveilling three teenage customers.

Believing that Green

himself was the problem, McCarthy approached him, identified
himself as a police officer by revealing his uniform under the
Red Sox jersey he was wearing, and asked him to leave the store.
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After Green and McCarthy both left the store Green asked
McCarthy for his name and badge number which McCarthy provided.
Green then stopped to arrange some personal belongings and
McCarthy asked him to leave the area.

When Green turned to cross

the street McCarthy grabbed Green’s shirt near his lower back.
Green continued to walk away and McCarthy grabbed his right arm
near his wrist.

McCarthy then informed Green he did not have

permission to leave and asked him to provide identification.
Green refused and McCarthy then informed him that he was under
arrest.
McCarthy’s attempt to handcuff Green was unsuccessful but
during the ensuing struggle a police cruiser arrived on scene and
two officers, one male and one female, got out of the vehicle and
assisted McCarthy.

They placed Green against the cruiser with

his chest against the side back door.

The female officer was

behind Green to his right, the male officer behind him to his
left.

McCarthy stood directly behind Green.

The parties dispute what occurred next.

Green alleges that

McCarthy grabbed the collar of his jersey and slammed his head
onto the top of the cruiser.

Green asserts that, as a result, he

suffered serious physical injuries, including an eye injury and a
shoulder injury that required surgery as well as emotional
distress.

Green was subsequently charged with resisting arrest,

disorderly conduct and assault and battery of a police officer.

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Although the record does not so indicate, the Court assumes those
charges were later dropped.
II.

Procedural History
Plaintiff filed his Complaint in October, 2010.

Initial

proceedings were before former United States District Judge Nancy
Gertner.

The case was transferred to this Session in June, 2011.

In May, 2012, the defendants moved for Summary Judgment (Docket
Nos. 32 and 35).

Plaintiff’s counsel filed an opposition to

Officer McCarthy’s motion but not to the motion of the City and
Police Commissioner.

Shortly thereafter plaintiff’s counsel

moved to withdraw from the case and that motion was allowed.
After affording plaintiff numerous opportunities to retain
replacement counsel and plaintiff not having availed himself of
those opportunities, the Court granted Summary Judgment for
defendants Davis and the City of Boston in January, 2012.
Currently before the Court is the contested motion of defendant
McCarthy for Summary Judgment.
III. Analysis
A.

Legal Standard

The role 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.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46,
50 (1st Cir. 1990)).

The burden is on the moving party to show,
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through the pleadings, discovery and affidavits, “that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c).
A fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

“Factual disputes that are irrelevant

or unnecessary will not be counted.” Id.

A genuine issue of

material fact exists where the evidence with respect to the
material fact in dispute “is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Once the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).

The Court must view the

entire record in the light most favorable to the non-moving party
and make all reasonable inferences in that party’s favor.
O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).

Summary

judgment is appropriate if, after viewing the record in the nonmoving party’s favor, the Court determines that no genuine issue
of material fact exists and that the moving party is entitled to
judgment as a matter of law.
B.

Application
1. Excessive Force

(Count I)

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A claim that a police officer used excessive force in the
context of a stop or arrest is analyzed under the Fourth
Amendment’s reasonableness standard. Graham v. Connor, 490 U.S.
386, 394–395 (1989).

While the reasonableness standard “is not

capable of precise definition or mechanical application,” its
proper application requires careful attention to the facts and
circumstances of each particular case, including the severity of
the plaintiff’s alleged criminal conduct, whether the suspect
posed an immediate threat to the safety of the officers or others
and whether he actively resisted arrest or attempted to evade
arrest by flight. Id. at 396.
Defendant asserts that plaintiff has failed to present
sufficient evidence to create a genuine issue of material fact as
to whether McCarthy was the person who pushed Green’s head into
the cruiser.

Defendant claims that there is no way that Green

can be certain who perpetrated the act given he was facing the
cruiser and could not see the hands of any of the three officers
or what was occurring behind him.

Green has, however, stated

that McCarthy was the individual who pushed him, because using
his peripheral vision, he could see both the male and female
officers and did not see either of them push his head.

Thus,

Green deduces that McCarthy was the officer who caused his
injury.

Given that the Court must treat all disputes of fact in

the light most favorable to the plaintiff, the Court finds that

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there is sufficient circumstantial evidence for a jury to find
that McCarthy was the perpetrator.
2.

Intentional Infliction of Emotional Distress (Count
II) and Assault and Battery (Count III)

Having found that there exists a genuine issue of material
fact as to whether McCarthy forced Green’s head into the cruiser
and thus whether excessive force was used, the Court concludes
that there also remains a triable issue as to whether that act
constituted an intentional infliction of emotional distress or an
assault and battery.
3.

M.G.L. c 12 §111 (Count IV)

To establish his claim under the Massachusetts Civil Rights
Act (“MCRA”), plaintiffs must show 1) McCarty threatened,
intimidated or coerced him 2) to prevent him from exercising a
constitutional right. Spencer v. Roche, 755 F. Supp. 2d 250, 267
(D. Mass. 2010).

The direct violation of a constitutional right

does not establish a MCRA violation because “it is not an attempt
to force someone to do something the person is not lawfully
required to do.” Columbus v. Biggio, 76 F. Supp. 2d 43, 54 (D.
Mass. 1999) (quoting Swanset Dev. Corp. v. City of Taunton, 668
N.E.2d 333, 338 (Mass. 1996)); see also Gallagher v.
Commonwealth, No. 00-11859-RWZ, 2002 WL 924243, at *3 (D. Mass.
March 11, 2002) (“The use of force is not, in itself, coercive

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within the meaning of the act unless such force is inflicted in
order to achieve some further purpose.”)
Plaintiff concedes in his opposition to the motion for
summary judgment that the record lacks any evidence that McCarthy
violated his Fifth Amendment, Eighth Amendment or 14th Amendment
Equal Protection rights.
on these claims.

Thus, summary judgment will be entered

In moving for summary judgment, defendant did

not specifically challenge plaintiff’s MCRA claims based on the
Fourth Amendment or the Declaration of Rights of the Constitution
of the Commonwealth of Massachusetts.

Consequently, the Court

will deny summary judgment on those claims without prejudice.
ORDER
In accordance with the foregoing, the motion for
summary judgment motion of defendant McCarthy (Docket No. 32) is,
with respect to the claims under the Fifth, Eighth and Fourteenth
Amendments in Count IV, ALLOWED, but is otherwise DENIED.

So ordered.
/s/ Nathanie M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated January 30, 2012

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