Counter v. Healy et al

Filing 22

Judge Richard G. Stearns: ORDER ON REPORT AND RECOMMENDATIONS for 19 Report and Recommendations. Action on motion: the court ADOPTS the Magistrate Judge's Recommendations. The motion to dismiss (Docket # 2) is MOOT; the opposition to the second motion to amend (Docket # 16) is restyled as a motion to dismiss and is DENIED; and the motion for reconsideration (Docket # 20) is DENIED. (Tyler, Rebecca)

Counter v. Healy et al

Doc. 22

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 09-12144-RGS SAMUEL A. COUNTER v. ROBERT W. HEALY, ET AL. MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION July 13, 2010 STEARNS, D.J. I agree with the substance of Magistrate Judge Sorokin's Report. Defendants' ori gi nal argument (remounted in the Objection), that a finding of probable cause by the state District Court precludes the false arrest claim, is more simply answered by the fact that Massachusetts (and federal) law is to the contrary. A finding of probable cause for prosecution by a district court judge is not conclusive but merely evidence that a jury can consider on the issue of the existence of probable cause. Willis v. Gurry, 331 Mass. 19, 22 (1954). See also Perkins v. Spaulding, 182 Mass. 218, 220 (1902) (same, grand jury indictment); Moore v. Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009) (same, collecting federal cases) . In all other respects, I agree with Magistrate Judge Sorokin's conclusions and consequently ADOPT his Recommendations. The motion to amend (Docket #14) is ALLOW ED. The motion to dismiss (Docket #2) is DENIED as moot. The opposition to the second motion to amend (Docket #16) is restyled (as recommended) as a motion to

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dismiss and is DENIED.1 The Clerk will return the file to Magistrate Judge Sorokin for all subsequent purposes. SO ORDERED. /s/ Richard G. Stearns ________________________________ UNITED STATES DISTRICT JUDGE

The motion for reconsideration (Docket #20) is DENIED. Defendants' understandable confusion was created by the inclusion of the separate Orders of the Magistrate Judge with regard to the original motion to amend (Docket #2) and the second motion to amend (Docket #14) in the body of the Recommendations regarding the outstanding motions that were the subject of the Report and Recommendation to this court. 2

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