Jenkins v. City of Taunton et al

Filing 73

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Defendants' Motion for Summary Judgment (Docket Entry # 58 ). The motion for summary judgment (Docket Entry # 58 ) is ALLOWED in part and DENIED in part. After num erous extensions of the dispositive motion deadline, there shall be no further extensions in this case, which plaintiff filed in January 2015. The parties shall file the status report relative to Count XIV within 14 days. This court will conduct a status conference on November 9, 2017 at 2:30 p.m. to set a trial date. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ROSEMARY JENKINS,
Plaintiff,
CIVIL ACTION NO.
15-10003-MBB

v.
CITY OF TAUNTON, CHIEF EDWARD
WALSH, MARK BRADY, ROBERT KRAMER,
MATTHEW SKWARTO, RALPH SCHLAGETER,
JEFFREY MARTIN, and FRED BOLTON,
Defendants.

MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 58)
September 29, 2017
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by defendants City of Taunton, Chief Edward Walsh
(“Walsh”), Mark Brady (“Brady”), Robert Kramer (“Kramer”),
Matthew Skwarto (“Skwarto”), Ralph Schlageter (“Schlageter”),
Jeffrey Martin (“Martin”), and Fred Bolton (“Bolton”)
(collectively “defendants”).

(Docket Entry # 58).

Rosemary Jenkins (“plaintiff”) opposes the motion.
Entry # 62).

Plaintiff
(Docket

After conducting a hearing, this court took the

motion (Docket Entry # 58) under advisement.
PROCEDURAL BACKGROUND

The complaint sets out the following claims:

(1) an

unreasonable search against Brady, Kramer, Skwarto, Schlageter,
Martin, and Bolton in violation of 42 U.S.C. § 1983 (“section
1983”) (Count I); (2) a false arrest against Brady, Kramer,
Skwarto, Schlageter, Martin, and Bolton in violation of section
1983 (Count II); (3) excessive force in violation of section
1983 against Kramer and another unidentified officer (Count
III); (4) a failure to intervene in violation of section 1983
against Brady (Count IV); (5) a failure to intervene to prevent
the unreasonable search and the use of excessive force in
violation of section 1983 against Brady, Kramer, Skwarto,
Schlageter, Martin, and Bolton (Count V); (6) a due process
violation under section 1983 against Brady, Kramer, Skwarto,
Schlageter, Martin, and Bolton (Count VI); (7) a conspiracy to
violate plaintiff’s constitutional rights in violation of the
Fourth, Fifth, and Fourteenth Amendments under section 1983
against Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton
(Count VII); (8) an unconstitutional policy in violation of
section 1983 against the City of Taunton and Walsh (Count VIII);
(9) a violation of Massachusetts General Laws chapter 12,
section 11I (“the MCRA”) against Brady, Kramer, Skwarto,
Schlageter, Martin, and Bolton (Count IX); (10) assault and
battery against Kramer and an unidentified officer (Count X);
(11) a false arrest and imprisonment against Brady, Kramer,
2 

Skwarto, Schlageter, Martin, and Bolton (Count XI); (12)
malicious prosecution against Brady, Kramer, Skwarto,
Schlageter, Martin, and Bolton (Count XII); (13) abuse of
process against Brady, Kramer, Skwarto, Schlageter, Martin, and
Bolton (Count XIII); and (14) intentional infliction of
emotional distress against “defendants” (Count XIV).

(Docket

Entry # 1).
On November 17, 2015, the parties filed a joint stipulation
dismissing Count VIII, which “contains the only claims against .
. . City of Taunton and Edward Walsh.”

(Docket Entry # 36).

Subsequently on December 13, 2016, the parties filed a joint
stipulation dismissing the following claims against the
following defendants:

(1) Count II against Brady, Skwarto,

Schlageter, Martin, and Bolton; (2) Count IV in its entirety;
(3) Count VI against Brady, Bolton, and Martin; (4) Count IX
against Brady, Skwarto, Schlageter, Martin, and Bolton as to the
use of force and the wrongful arrest of plaintiff; (5) Count XI
against Brady, Skwarto, Schlageter, Martin, and Bolton; (6)
Counts XII and XIII against Brady, Martin, and Bolton; and (7)
Count XIV against Brady, Skwarto, Schlageter, Martin, and Bolton
“as to the use of force against and the wrongful arrest of
plaintiff.”

(Docket Entry # 56).

The joint stipulation of dismissal describes Count XIV as
setting out a “use of force against and wrongful arrest of the
3 

plaintiff.”

(Docket Entry # 56).

As framed in the complaint,

however, Count XIV is a claim for intentional infliction of
emotional distress against “Defendants.”

The parties are

therefore directed to confer and file a status report clarifying
paragraph seven of the joint stipulation within 14 days of the
date of this opinion.
STATEMENT OF FACTS
1.

General Background
Plaintiff is a 66-year-old female.

1) (Docket Entry # 69, ¶ 1).

(Docket Entry # 63, ¶

On August 2, 2013, she resided in

apartment three of a building located at 112 High Street (“the
building”) in Taunton, Massachusetts.
(Docket Entry # 69, ¶ 2).

(Docket Entry # 63, ¶ 2)

The building is a three story, multi-

family residential apartment building with four apartment units.
(Docket Entry # 63, ¶ 3) (Docket Entry # 69, ¶ 3).

It has a

front entrance and a rear entrance which leads to separate
stairwells.

(Docket Entry # 60-2, pp. 47-59).

The apartment in

which plaintiff resided, apartment three, is the only residence
located on the third floor.

(Docket Entry # 63, ¶ 3) (Docket

Entry # 69, ¶ 3).
Plaintiff’s son, Domingo Jenkins Sr. (“Domingo”), lived on
the first floor of the building.
(Docket Entry # 69, ¶ 4).

(Docket Entry # 63, ¶ 4)

Plaintiff’s other son, Reginald

Jenkins Sr. (“Reginald”), from whom plaintiff is estranged
4 

(Docket Entry # 63, ¶ 5) (Docket Entry # 69, ¶ 5), never resided
in the building.
6).

(Docket Entry # 63, ¶ 6) (Docket Entry # 69, ¶

Reginald had been arrested several times by members of the

Taunton Police Department (“TPD”), but these arrests never
occurred at the building.
Entry # 69, ¶ 13).

(Docket Entry # 63, ¶ 13) (Docket

As of August 2, 2013, according to Skwarto’s

affidavit, Reginald’s address was listed in TPD’s computer
system as 112 High Street.

(Docket Entry # 60-13, ¶ 7).

A TPD

log incident report for an incident that occurred on July 12,
2013, in which a group including Reginald allegedly threatened
to shoot up a local restaurant listed Reginald’s address as 112
High Street without an apartment number.
pp. 1-2).

(Docket Entry # 60-3,

Another TPD log entry dated July 31, 2013, which

described an incident in which Reginald purportedly committed an
assault and battery on an individual, also listed Reginald’s
address as 112 High Street without an apartment number.1

(Docket

Entry # 60-4, pp. 1-2).
Since 2005, plaintiff has had full legal custody of five of
Reginald’s children.
69, ¶ 7).

(Docket Entry # 63, ¶ 7) (Docket Entry #

The children occasionally walked to Reginald’s house

on Union Street in Taunton.

(Docket Entry # 63, ¶ 8) (Docket

1

The discussion section summaries additional TPD records
reflecting Reginald’s address as 112 High Street, Apartment
Four.
5 

Entry # 69, ¶ 8).

Reginald has visited his children at the

building, but the record is unclear as to the frequency of such
visits.

(Docket Entry # 60-2, pp. 26-27).

In August 2013, the

children were approximately eight, nine, 12, 14, and 19 years
old.

(Docket Entry # 63, ¶ 9) (Docket Entry # 69, ¶ 9).

Reginald’s sixth child, Reginald Jenkins, Jr. (“Reginald Jr.”),
was approximately 16 in August 2013 and did not live with
plaintiff.

(Docket Entry # 63, ¶ 10) (Docket Entry # 69, ¶ 10).

Prior to August 2, 2013, plaintiff had called TPD on multiple
occasions for assistance in dealing with her grandchildren.
(Docket Entry # 63, ¶ 11) (Docket Entry # 69, ¶ 11).

As a

result, members of TPD were aware that plaintiff lived at the
multi-unit building with her grandchildren and, drawing
reasonable inferences, that she lived in apartment three on the
third floor.

(Docket Entry # 63, ¶ 12) (Docket Entry # 69, ¶

12).
2.

The Shooting
According to a statement by Assistant District Attorney

Brian Griffin (“Griffin”) during a November 2014 guilty plea
proceeding, a young man named Darian Robinson (“Robinson”),
together with his friends, confronted Reginald in Taunton on
August 2, 2013 and then returned to Fall River, Massachusetts.

6 

(Docket Entry # 60-6, p. 11).2

Griffin further stated that later

on August 2, 2013, Robinson returned with his aunt Alicia Burton
(“Burton”) and Burton’s son Andre Thompson (“Thompson”) to
Taunton “where they knew the defendant [Reginald] lived.”
(Docket Entry # 60-6, p. 11).

With respect to the specific

location of the confrontation, Griffin stated that, “The
confrontation took place out in front of his [Reginald’s]
house.”

(Docket Entry # 60-6, p. 11).

The address for the

house was not mentioned in the guilty plea proceeding.
Entry # 60-6).

(Docket

During the proceeding, the Associate Justice of

the Superior Court (“the judge”) asked Reginald, who was sworn,
if he was “confronted by them when they came from Fall River
back up to Taunton.

In other words, they showed up at your

property after the first incident.”
14-15).

(Docket Entry # 60-6, pp.

In response, Reginald answered, “Yes, sir.”

Entry # 60-6, p. 15).

(Docket

Reginald did not indicate whether the

affirmative response was directed only towards a portion of the
judge’s question, or towards everything including the part which
would confirm Reginald’s ownership of the property.

(Docket

Entry # 60-6, p. 15).

2

The proceeding took place on November 20, 2014 in
Massachusetts Superior Court (Bristol County) (“Superior
Court”). (Docket Entry # 60-6, p. 1). Reginald agreed to
Griffin’s statement of facts under oath. (Docket Entry # 60-6,
p. 14).
7 

Griffin then stated that, after Burton, Thompson, and
Robinson met with Reginald at about 9:30 p.m. that evening,
Reginald “pointed the gun down to the body, the lower body of
the three [Burton, Thompson, and Robinson] and fired one shot.”
(Docket Entry # 60-6, p. 12).
the leg . . ..”

“That shot hit Andre Thompson in

(Docket Entry # 60-6, p. 12).

Reginald then

pointed the gun at Burton’s chest, threatening her.

(Docket

Entry # 60-6, p. 12).
3.

Dispatch Calls
At approximately 9:19 p.m. on August 2, 2013, TPD received

multiple 911 calls for the shooting described in the preceding
paragraph.

(Docket Entry # 60-13, ¶ 11).

Approximately four

minutes later at 9:23 p.m., Taunton Police dispatch sent a radio
communication to all police officers which stated that Burton
had informed dispatch that she had witnessed a shooting which
occurred in the parking lot of Alan Walker Insurance located at
120 High Street.

(Docket Entry # 63-4, pp. 2, 9-10, 16) (Docket

Entry # 69-1).
According to the affidavit by Skwarto, dispatch informed
him that Reginald “went into his apartment at 112 High Street
after the shooting.”3

(Docket Entry # 60-13, ¶ 15).

The

3

  This statement is not considered for the truth of the matter
asserted, i.e., that Reginald went into 112 High Street.
Rather, it is considered to show knowledge.

8 

dispatch recording states, “We are looking for Reggy Jenkins
[Reginald], he just shot at Burton’s son and she watched him do
it.”

(Docket Entry # 69-1).

The dispatch recording does not

mention the address 112 High Street, but only states that, “he’s
[Reginald] inside the apartment over there where he lives.”
(Docket Entry # 69-1).

The recording also states that Burton

informed dispatchers that, “Reggy [Reginald] shot her son, he’s
inside of his apartment over there right now,” and “she’s
[Burton] on the way down to the station to give a statement.”
(Docket Entry # 69-1).

The dispatch continued by stating, “She

[Burton] said he [Reginald] shot her son and then, I think she
said, she was screaming on the phone, she said he grazed his leg
or something, and she went to confront him, he shot her too or
something, and he’s, uh [sic], he’s inside the apartment over
there where he lives.”

(Docket Entry # 69-1).

An unknown

officer responded to dispatch by asking, “Who’s held up inside
Reggy [Reginald] or Andre [Thompson]?”

(Docket Entry # 69-1).

Dispatch responded by stating, “No Reggy [Reginald], the
shooter, I’ll find out as soon as she [Burton] gets here.

Seal

it [the building] off until she gets here and I’ll let you
know.”

(Docket Entry 69-1).

Turning to the police reports, Kramer did not report that
dispatch told him where Reginald went after the shooting.
(Docket Entry # 63-4, p. 3).

Instead, Kramer’s report states
9 

that, “It is known that Reginald Jenkins lives at and has been
observed at 112 High Street on a daily basis.”
63-4, p. 3).

(Docket Entry #

Skwarto’s police report states that, “I am further

aware that Reginald . . . has an active warrant for his arrest .
. . listing an address of 112 High St.”
p. 11).

(Docket Entry # 63-4,

Schlageter’s police report reflects that, “Dispatcher .

. . gave an update that . . . Reginald Jenkins was the shooter
and that he fled the area in an unknown direction.”

(Docket

Entry # 63-4, p. 16) (emphasis added).
4.

Immediately before Police Entry into Building
In response to the dispatch, Bolton and Skwarto were the

first police officers to arrive at the building, followed by
Schlageter, Kramer, Martin, and Brady thereafter (collectively
“responding officers”).

(Docket Entry # 63, ¶¶ 16-17) (Docket

Entry # 69, ¶¶ 16-17) (Docket Entry # 60-13, ¶ 19).

When

Skwarto arrived at the building, he encountered Reginald Jr. who
was “emerging from around the side of the Allan M. Walker
Insurance building” and, according to Skwarto’s police report,
stated that “‘something happened with my dad, I’m going in the
house [the building] to see if everything is ok.’”4
Entry # 63-4, p. 10-11).

(Docket

Reginald Jr. “continued toward 112

4

The above statement is not considered for the truth of the
matter asserted, namely, that “‘something happened with’”
Reginald Jr.’s father.
10 

High St.” and Skwarto accompanied him.

(Docket Entry # 63-4, p.

11).
Schlageter then arrived at the building and observed
Reginald’s teenage son (Reginald Jr.) standing in the parking
lot of a business on High Street.
(Docket Entry # 69, ¶ 20).

(Docket Entry # 63, ¶ 20)

Thereafter, Schlageter “looked to

the third floor of 112 High Street” and “saw several people
looking out the window.”

(Docket Entry # 63-4, p. 16-17).

When

Kramer arrived at the scene, he reported observing “Skwarto
walking with Reginald Jenkins [Jr.] in the parking lot of Alan
Walker Insurance.”

(Docket Entry # 63-4, p. 3).

Kramer also

reported that, “Rosemary Jenkins and several children were
observed to be looking out of the second floor apartment and
yelling out to officers.”5

(Docket Entry # 63-4, p. 4).

None of

the responding officers observed any ongoing altercation or
Reginald fleeing the building.

(Docket Entry # 63, ¶¶ 16-17,

24) (Docket Entry # 69, ¶¶ 16-17, 24).
From plaintiff’s perspective, about 30 minutes prior to the
police arriving, plaintiff left her apartment and told the
children inside to lock the door.

(Docket Entry # 60-2, p. 73).

She then sat outside in the driveway adjacent to the property

5

Kramer’s report is mistaken on this fact. Plaintiff lives in
apartment three, which is located on the third floor of the
building. (Docket Entry # 63, ¶ 3) (Docket Entry # 69, ¶ 3).
11 

alone until the police arrived.

(Docket Entry # 60-2, p. 77-

78).
5.

Entering Plaintiff’s Apartment
After all of the responding officers arrived at the

building, they decided to enter the building and search for
Reginald.

(Docket Entry # 63-4, pp. 5, 11, 17).

Skwarto stated

that, “when the [responding officers] entered the common area of
the building[,] they observed Plaintiff exit her apartment and
lock the door behind her.”
Entry # 69, ¶ 25).

(Docket Entry # 63, ¶ 25) (Docket

At plaintiff’s deposition, however,

plaintiff testified that she was outside the building when the
police arrived.6

(Docket Entry # 60-2, p. 80).

Skwarto asked

plaintiff if Reginald was in the apartment, to which she
responded, “‘You guys ain’t going in.’”

(Docket Entry # 63, ¶

26) (Docket Entry # 69, ¶ 26).
Despite the fact that plaintiff did not give the responding
officers permission to enter her apartment (Docket Entry # 63, ¶
26) (Docket Entry # 69, ¶ 26), Skwarto kicked plaintiff’s door
and responding officers entered plaintiff’s apartment with their
weapons drawn, frightening plaintiff’s grandchildren who were
playing in the living room.

(Docket Entry # 63, ¶¶ 27-28)

(Docket Entry # 69, ¶¶ 27-28).

As it turned out, Reginald was

6

The disputed fact is resolved in plaintiff’s favor as the nonmovant.
12 

not inside plaintiff’s apartment.

(Docket Entry # 63, ¶ 43)

(Docket Entry # 69, ¶ 43) (Docket Entry # 63-4, p. 12).
6.

Activities Inside Plaintiff’s Apartment
Schlageter reported that, “‘At some point, [plaintiff]

walked into the apartment and began to argue with Detective
Kramer.’”

(Docket Entry # 63, ¶ 31) (Docket Entry # 69, ¶ 31).

Schlageter also reported that, “‘Kramer advised [the plaintiff]
to calm down several times’” and that she “‘refused to calm down
and was placed under arrest.’”

(Docket Entry # 63, ¶ 31)

(Docket Entry # 69, ¶ 31) (Docket Entry # 63-4, p. 19).

At no

point in Schlageter’s report did he state that plaintiff made
“‘contact’” with Kramer.

(Docket Entry # 63, ¶ 31) (Docket

Entry # 69, ¶ 31).
According to Skwarto’s police report, plaintiff “‘was still
yelling, directing her anger at Detective Kramer.

She

continually followed him around preventing him from performing
his duty . . . [plaintiff] made contact with Detectives [the
responding officers] numerous times during her tirade and
subsequently, after at least a dozen warnings that [he] issued
her, she was placed in handcuffs.’”
(Docket Entry # 69, ¶ 29).

(Docket Entry # 63, ¶ 29)

At her deposition, plaintiff stated

that she went into her kitchen and then bedroom to get her phone
during this time.

In response to the handcuffing of her

13 

grandson, plaintiff asked the responding officers, “‘Why they
doing him like that?’”

(Docket Entry # 60-2, pp. 99, 120).

At her deposition, plaintiff stated that Kramer did not
have contact with her prior to her being handcuffed.
Entry # 60-2, p. 121).

(Docket

Plaintiff also testified at her

deposition, that, an unidentified police officer shoved her to
prevent her from entering her bedroom.
pp. 108-09).

(Docket Entry # 60-2,

More specifically, Kramer hit plaintiff in the

back and she fell to her knees striking a living room couch.
(Docket Entry # 60-2, pp. 121-122) (Docket Entry # 60, ¶ 38).7
Kramer did not say anything prior to arresting plaintiff.
(Docket Entry # 60-2, pp. 120-121).

Kramer then placed the

handcuffs on plaintiff while plaintiff’s knees were on the floor
and her face was on the couch, according to plaintiff’s
deposition testimony.

(Docket Entry # 60-2, p. 121).

Plaintiff

also testified that her hands were behind her back when she was
handcuffed.

(Docket Entry # 60-2, p. 129).

After placing the

handcuffs on plaintiff, Kramer lifted plaintiff up (Docket Entry
# 60-2, p. 121) and started to escort her out the door.
Entry # 60-2, p. 124).

(Docket

Plaintiff stated that before and during

the handcuffing, she did not sustain an injury.

(Docket Entry #

60-2, p. 123).

7

Plaintiff does not controvert paragraph 38 of defendants’ LR.
56.1 statement. See LR. 56.1.

14 

Plaintiff also testified at her deposition that, after she
was handcuffed, Kramer “drug [sic] me out . . .,” and “was
pulling me . . ..”

(Docket Entry 60-2, p. 125).

Plaintiff did

not fall or sustain an injury when Kramer escorted her
downstairs.

(Docket Entry # 60-2, p. 129).

Plaintiff testified

that, after she came outside and while in the parking lot,
Kramer took her wrists and “grinded” them together inside her
handcuffs, causing her pain.
Entry # 69, ¶ 34).

(Docket Entry # 63, ¶ 34) (Docket

Except for Kramer and the officer who shoved

plaintiff, no other responding officer used any force against
plaintiff.

(Docket Entry # 60-2, pp. 144-45).

Plaintiff also testified that, as she was escorted out of
her apartment, roughly 15 to 20 people gathered to watch.
(Docket Entry # 60-2, pp. 136-37).

Except for an individual who

lived in the house next door, plaintiff did not recognize any of
these people.

(Docket Entry # 60-2, pp. 137-39).

not know if anyone was a neighbor.
137-39).
arrested.
7.

She also did

(Docket Entry # 60-2, pp.

In addition to plaintiff’s arrest, Reginald Jr. was
(Docket Entry # 60-2, p. 124).

After Plaintiff’s Escort Out of Building
After plaintiff’s escort out of the building and while

waiting for transport to the Taunton police station, Domingo
arrived and inquired about why plaintiff was being arrested.
(Docket Entry # 63, ¶ 36) (Docket Entry # 69, ¶ 36).
15 

Members of

TPD refused to respond to Domingo’s inquiries, stunned him with
a Taser, and placed him under arrest.
(Docket Entry # 69, ¶ 36).

(Docket Entry # 63, ¶ 36)

Thereafter, Kramer placed plaintiff

into a cruiser and she was transported to the Taunton police
station.

(Docket Entry # 63, ¶ 37) (Docket Entry # 69, ¶ 37).

While at the Taunton police station, plaintiff complained of
wrist pain and requested medical treatment.
¶ 38) (Docket Entry # 69, ¶ 38).

(Docket Entry # 63,

In response, plaintiff was

transported to Morton Hospital where she was diagnosed with a
contusion to her wrist.
# 69, ¶ 39).

(Docket Entry # 63, ¶ 39) (Docket Entry

Plaintiff was discharged and did not seek any

further medical treatment for her wrist.

(Docket Entry # 60-2,

p. 156).
8.

Reginald’s Arrest
After the responding officers left the building, members of

TPD went to 19 Union Street, which was approximately half a mile
away from plaintiff’s apartment where they arrested Reginald.
(Docket Entry # 63, ¶ 48) (Docket Entry # 69, ¶ 48).

Kramer

stated that, “It is known that [Reginald] hangs out at 19 Union
Street and is seen at the residence on many occasions.”
Entry # 63, ¶ 45) (Docket Entry # 69, ¶ 45).

(Docket

Skwarto stated

that he, along with Kramer and Schlageter, “‘proceeded to 19
Union St. due to the fact that we are aware that [Reginald]
spends much of his time at this apartment with a Jay Wright.’”
16 

(Docket Entry # 63, ¶ 46) (Docket Entry # 69, ¶ 46) (Docket
Entry # 63-4, p. 14).

Schlageter stated that, “‘The address of

19 Union Street is the address of Jay Wright and is an address
that is frequented by [Reginald].’”

(Docket Entry # 63, ¶ 47)

(Docket Entry # 69, ¶ 47).
Reginald was subsequently indicted on multiple offenses
arising out of the August 2, 2013 shooting of Thompson and the
threatening of Burton with a firearm.
He pled guilty to these offenses.
9.

(Docket Entry # 60-9).

(Docket Entry # 60-6, p. 18).

Arrest Warrant and Search Warrant
The responding officers did not have a warrant to search

plaintiff’s apartment at the time of entry.
¶ 40) (Docket Entry # 69, ¶ 40).

(Docket Entry # 63,

The parties dispute whether

the police had a warrant for Reginald’s arrest.
69, ¶¶ 41-42).

(Docket Entry #

Defendants produced a print out from the

Commonwealth of Massachusetts Criminal Justice Information
System website.

(Docket Entry # 60-5).

The print out bears the

title “WMS Warrant: JENKINS, REGINALD L” issued on August 1,
2013 and identifies “112 High Street, Taunton, MA 02780” as the
address.

(Docket Entry # 60-5).

By affidavit, Skwarto, a

detective in the TPD, attests that the warrant referred to in
the print out, WR4934980TC, is an arrest warrant for the charged
offense, i.e., assault and battery with a dangerous weapon
committed on July 31, 2013.

(Docket Entry # 69, ¶ 5) (Docket
17 

Entry # 60-5).

It also indicates a recall date of August 5,

2013 (Docket Entry # 60-5), which was three days after
Reginald’s arrest.

(Docket Entry # 63-3, p. 54).

TPD’s

database shows that a summons issued for Reginald on July 31,
2013.
10.

(Docket Entry # 63-3, p. 54).
Aftermath
Skwarto, Kramer, and Schlageter each prepared a police

report regarding the August 2, 2013 incident which resulted in
the arrests of plaintiff, Reginald Jr., Domingo, and Reginald.
(Docket Entry # 63, ¶ 49) (Docket Entry # 69, ¶ 49).
On August 3, 2013, Kramer applied for a criminal complaint
against plaintiff.

(Docket Entry # 60-10, p. 1).

The complaint

charges plaintiff with interference with a police officer under
Massachusetts common law; disorderly conduct under Massachusetts
General Laws chapter 272, section 53 (“section 53”); and
resisting arrest under Massachusetts General Laws chapter 268,
section 32B (“section 32B”).

(Docket Entry # 60-10, p. 1).

The

criminal complaint attaches the police reports, including those
by Kramer and Skwarto.

(Docket Entry # 60-10, pp. 2-26).

criminal complaint does not attach Schlageter’s report.
Entry # 60-10).

The

(Docket

A Clerk Magistrate at the Taunton District

Court found probable cause to issue each of the charges sought
against plaintiff based on the police reports attached by
Kramer.

(Docket Entry # 60-11).
18 

On or about November 12, 2014,

an Associate Justice dismissed all three charges without
prejudice upon the request of plaintiff, i.e., defendant in the
criminal complaint.

(Docket Entry # 63, ¶ 51) (Docket Entry #

69, ¶ 51) (Docket Entry # 60-12, p. 2).
DISCUSSION
I.

Counts I and IX
Skwarto, Schlageter, Brady, Martin, Bolton, and Kramer move

for summary judgment on Count I based on an unreasonable search
under the Fourth and Fourteenth Amendments in violation of
section 1983 and the corresponding claim in Count IX based on
the MCRA.8

They seek summary judgment on these claims because:

(1) they were acting under a valid arrest warrant for Reginald;
and, in any event, (2) exigent circumstances excused the need
for a warrant.

In addition, they submit that their mistaken

belief that Reginald lived at 112 High Street was reasonable

8

Citing Sietins v. Joseph, 238 F.Supp.2d 366, 377-78 (D. Mass.
2003) (addressing Fourth Amendment section 1983 claims and
noting that, “MCRA is ‘coextensive with 42 U.S.C. § 1983,
except’” as to state action requirement in section 1983 and
“‘threats, intimidation or coercion’” requirement in MCRA), the
above defendants maintain that the MCRA claims in Count IX and
the corresponding to the section 1983 claims in Count I are
subject to summary judgment for the same reasons. (Docket Entry
# 59). Plaintiff does not address the MCRA claims in her
opposition (Docket Entry # 62) and, for purposes of summary
judgment, therefore waives any argument that there is a
meaningful or material distinction between the two statutes with
respect to the claims in counts I and IX. See Merrimon v. Unum
Life Ins. Co. of America, 758 F.3d 46, 57 (1st Cir. 2014); Coons
v. Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010);
Vallejo v. Santini-Padilla, 607 F.3d 1, 7 n.4 (1st Cir. 2010).
19 

thereby entitling them to qualified immunity.9

Plaintiff

addresses the reasonable, but mistaken, belief that Reginald
resided at 112 High Street as relevant to an analysis under
Payton v. New York, 445 U.S. 573, 586 (1980), and United States
v. Graham, 553 F.3d 6, 12 (1st Cir. 2009).

She does not discuss

the reasonableness of the mistake vis-à-vis qualified immunity.
Plaintiff otherwise maintains there is not sufficient evidence
of an arrest warrant and that exigent circumstances did not
exist.
1.

Arrest Warrant and Reasonable Belief
Skwarto, Schlageter, Brady, Martin, Bolton, and Kramer

argue that they had a valid outstanding arrest warrant for
Reginald’s arrest because the warrant lists the building as his
address and the responding officers had a reasonable belief that
Reginald lived in the apartment searched.
3).

(Docket Entry 59, p.

Plaintiff submits that defendants failed to produce an

arrest warrant signed by a judge or magistrate and therefore
maintains that defendants’ argument fails.

(Docket Entry # 62

p. 3).

9

The aforementioned defendants seek qualified immunity only on
the basis of the officers’ reasonable belief that Reginald lived
in apartment three and was inside apartment three at the time
they executed the arrest warrant which allowed them to lawfully
enter the apartment to search for Reginald. (Docket Entry # 59,
pp. 4-6).
20 

“[T]he ‘physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.’”
Payton v. New York, 445 U.S. at 585 (quoting United States v.
United States District Court, 407 U.S. 297, 313 (1972)).

It is

therefore a “‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a warrant are
presumptively unreasonable.”

Id. at 586.

This rule, however,

is not absolute in a case where an arrest warrant is involved.
Id. at 602-03.

“[A]n arrest warrant founded on probable cause

implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to
believe the suspect is within.”

Id. at 603.

The standard is

whether “the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivations.”

Lucas v.

City of Boston, No. 07-CV-10979-DPW, 2009 WL 1844288, at *15 (D.
Mass June 19, 2009); Graham v. Connor, 490 U.S. 386, 397 (1989).
Plaintiff submits that defendants failed to produce an
arrest warrant for Reginald Jenkins, which the responding
officers relied upon to justify their entry into plaintiff’s
apartment.

Defendants, however, produced a print-out document

titled, “WMS Warrant: JENKINS, REGINALD L” which, by affidavit,
constitutes the arrest warrant on which the responding officers
relied.

(Docket Entry # 60-5).

More specifically, by
21 

affidavit, Skwarto, attests that the warrant referred to in the
print out, WR4934980TC, is an arrest warrant for the charged
offense, i.e., assault and battery with a dangerous weapon
committed on July 31, 2013.
Entry # 60-5).

(Docket Entry # 69, ¶ 5) (Docket

Defendants also produced an “Application for

Criminal Complaint,” submitted to the Taunton District Court by
Patrolman Jayson J. LaPlante on August 1, 2013 for Reginald
Jenkins concerning an application for an arrest warrant for the
charged offense, i.e., assault and battery with a dangerous
weapon.10

(Docket Entry # 69-2).

According to the summary

judgment record (Docket Entry # 60), only Skwarto had knowledge
of the arrest warrant at the time of the incident.
Entry # 60-10, p. 17) (Docket Entry # 60-13, ¶ 18).

(Docket
In light of

the above, no reasonable finder of fact could conclude that no
arrest warrant existed.

Rather, the evidence in the summary

judgment record establishes that a valid arrest warrant for
Reginald Jenkins existed at the time of the incident and that at
least one of the responding officers had knowledge of it.
The existence of an arrest warrant does not alone justify
the entry into apartment three where, as here, the officers
entered the wrong home.

In particular, subsequent to Payton,

10

As explained below, the WMS warrant listed only 112 High
Street whereas the application listed apartment four at 112 High
Street as Reginald’s address. (Docket Entry ## 60-5, 69-2).
22 

courts have held that, even where it is discovered after entry
that the dwelling is not the suspect’s home, the initial entry
may be justified under Payton provided the police reasonably
believed, prior to entry, that the suspect did reside at the
dwelling.

See United States v. Graham, 553 F.3d 6, 12 (1st Cir.

2009).
Whether a suspect actually “resided at a location, then, is
not dispositive so long as the police ‘reasonably believed’
prior to entry that he (1) resided at the apartment and (2)
would be present.”

United States v. Werra, 638 F.3d 326, 337

(1st Cir. 2011) (“Werra”); Graham, 553 F.3d at 12.

In

determining whether the officers possessed a reasonable belief
that a suspect resided at a location, courts examine the basis
for that belief, “examining ‘the facts and circumstances within
the knowledge of the law enforcement agents . . . viewed in the
totality.’”

Graham, 553 F.3d at 13 (quoting United States v.

Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000)).
“Reasonable belief is an objective standard.”

Commonwealth

v. Gentile, 2 N.E.3d 873, 878 (Mass. 2014); see also Werra, 638
F.3d at 337 (stating that a reasonable officer must form an
objectively reasonable belief that suspect lived at premises and
was present at time of entry); see also Meuser v. Federal
Express Corp., 564 F.3d 507, 520 (1st Cir. 2009) (applying
objective standard of reasonable person for MCRA claim).
23 

A law

enforcement official’s belief must be supported by “specific
articulable facts” that, based on the totality of circumstances,
permit a reasonable inference that, at the time of entry, the
defendant is in the premises.

Gentile, 2 N.E.3d at 878.

Information concerning a reasonable belief of residence has been
held to be, in totality, a prior police report listing the
apartment as suspect’s residence, a probation officer informing
the police officer that the apartment was the suspect’s
residence, a person outside of the apartment informing the
police officer that the suspect resided inside the apartment, a
police officer noticing many known associates of the suspect on
the porch of the apartment, and the police officer was unable to
locate the subject of the arrest warrant at a location
previously associated with the subject.

Graham, 553 F.3d at 13-

14; see United States v. Risse, 83 F.3d 212, 216 (8th Cir. 1996)
(noting that police’s inability to locate subject of arrest
warrant at location previously associated with subject could
support a reasonable belief that subject was residing at
different location).
The court in Werra, considered the following relevant
information possessed by the officers in assessing whether they
had a reasonable belief that a suspect lived at a location:

(1)

an informant told the officers she had seen the suspect at an
address recently and that the suspect was staying there; (2) the
24 

informant previously provided officers with accurate information
about the location of a suspect; (3) the officer was aware that
the suspect was a drug abuser; (4) during the officer’s previous
visit to the location, he observed it was a “sober house with
tenants living on the premises”; (5) and the officers arrived
“relatively early in the morning, at approximately 10:00 a.m.”
638 F.3d at 337.

The court in Werra, however, doubted that this

information was sufficient to support the first prong of the
Payton inquiry, i.e., that the officers could reasonably believe
that the suspect lived in the location “when they forced their
way into it.”

Id.

Further, a different home address appeared

on the arrest warrant for the suspect in Werra and, even
accepting that the suspect had stayed at the location
“recently,” the court explained that the officers neither
conducted surveillance nor took any other steps to verify that
the suspect’s stay had not been temporary.

Id.; see United

States v. Clayton, 210 F.3d 841, 842-44 (8th Cir. 2000).11
The court in Clayton relied on a police record indicating
that a defendant resided in a particular house in order to form
a reasonable belief that the defendant resided at that location.
Clayton, 210 F.3d at 842.

The Clayton court nevertheless

required more to find a reasonable belief of residence and

11

The First Circuit in Werra and in Graham cite and rely on
Clayton. See Graham, 553 F.3d at 13; Werra, 638 F.3d at 338.

25 

stated that an anonymous caller informing police that the
defendant resided at the house and that there was a possible
methamphetamine laboratory, along with a person leaving the
house telling police, immediately prior to entry, that the
defendant was inside, was enough to give police a reasonable
belief that the defendant resided at that location.

Clayton,

210 F.3d at 842-44.
Here, the officers objectively recognized that plaintiff
lived in apartment three of 112 High Street in Taunton, whereas
TPD records refer to Reginald’s address as either apartment four
at 112 High Street or simply 112 High Street.

(Docket Entry #

63, ¶¶ 2, 12) (Docket Entry # 69, ¶¶ 2, 12).

Dispatch informed

the officers that Reginald “was inside the apartment over there
where he lives.”

(Docket Entry # 69-1).

The print-out

evidencing the arrest warrant identifies “112 High Street,
Taunton, MA 02789” as Reginald’s address.
5).

(Docket Entry # 60-

TPD records do not designate Reginald’s address as

apartment three at 112 High Street, i.e., plaintiff’s apartment.
(Docket Entry # 63-3, pp. 6, 29, 54, 57, 58, 60).

In addition

to a May 24, 2013 TPD incident report and the previously noted
July 12 and 31 TPD incident reports all listing Reginald’s
address as 112 High Street, a booking report (#TTAU201300787)
dated May 1, 2013 lists Reginald’s address under “Basic
Information” as “112 HIGH ST 4 TAUNTON MA 02780.”
26 

(Docket Entry

# 63-3, p. 32).

(Docket Entry # 63-3, p. 6).

A TPD incident

report (# 13005575) dated March 22, 2013 lists Reginald’s
address under “Correct Location” as “112 HIGH ST #4” and under
“Apartment #” as “4.”

(Docket Entry # 63-3, p. 29).

A rap

sheet as of August 2, 2013 on Reginald kept by TPD twice lists
Reginald’s address as “112 HIGH ST 4 TAUNTON MA 02780” as his
current (Docket Entry # 63-3, p. 54) and most recent (Docket
Entry # 63-3, p. 57) address.

A document titled “Master Person

#: 300008470” lists Reginald’s address as “112 HIGH ST 4” with
an entry date of May 1, 2013.

(Docket Entry # 63-3, pp. 58-60).

Finally, the application for the criminal complaint concerning
the arrest warrant for Reginald Jenkins submitted in Taunton
District Court on August 1, 2013 lists Reginald’s address as
“112 HIGH ST 4 TAUNTON MA 02780.”

(Docket Entry # 69-2).

Thus,

in comparison to the information held by the officers in Graham
and Clayton, the information held by the responding officers is
significantly weaker.

Whereas these cases had additional facts

that the defendant resided in the residence at issue; here, a
reasonable factfinder could readily find in favor of plaintiff
that the responding officers did not have a reasonable basis in
their purported belief that Reginald lived in apartment three.
See Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st
Cir. 2014).

27 

Examining the second requirement, namely, the responding
officers’ reasonable belief that Reginald was present inside
apartment three, Skwarto avers that the “radio communication to
all police officers also stated that . . . Reginald Jenkins Sr.
went inside his apartment at 112 High Street after the
shooting.”

(Docket Entry # 60-13, ¶ 15).

As the foregoing TPD

records evidence, Reginald’s apartment, if any, at 112 High
Street was apartment four, not three.

According to Schlageter’s

police report, dispatch “gave an update that . . .

Reginald

Jenkins was the shooter and that he fled the area in an unknown
direction.”

(Docket Entry # 63-4, p. 16).

Where, as here, “law

enforcement authorities are cooperating in an investigation[,] .
. . the knowledge of one is presumed shared by all.’”

Solis-

Alarcón v. United States, 662 F.3d 577, 581 (1st Cir. 2011)
(quoting Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983)); see
United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997).
According to Skwarto’s affidavit, his knowledge is based on a
radio communication by TPD dispatch that stated Burton, the
victim’s mother, indicated to the TPD that Reginald went inside
his apartment at 112 High Street after the shooting.
Entry # 60-13, ¶ 15).

(Docket

The dispatch recording states, “We are

looking for Reggy Jenkins [Reginald], he just shot at Burton’s
son and she watched him do it.”

(Docket Entry # 69-1).

The

dispatch recording informed the responding officers that “he’s
28 

(Reginald) inside the apartment over there where he lives,” and
to “seal it off until she (Burton) gets here (the TPD station)
and I’ll let you know,” referring to informing the responding
officers of Burton’s statements once she arrived at the police
station.

(Docket Entry # 69-1).

According to Detective Shawn

Mulhern’s police report, Burton stated that Reginald “backed up
and fired two more rounds and then ran off,” not indicating if
Reginald fled into any building or location.
60-10, p. 13).

(Docket Entry #

Based on the foregoing, a reasonable factfinder

could find in favor of plaintiff that the responding officers
lacked a reasonable belief that after the shooting Reginald fled
into plaintiff’s apartment.

Leonard, 750 F.3d at 38.

Summary

judgment that the officers made a lawful entry into apartment
three with an arrest warrant based on a reasonable belief of
residence and a reasonable belief of Reginald’s presence inside
is not warranted.12
2.

Exigent Circumstances
Skwarto, Schlageter, Brady, Martin, Bolton, and Kramer

alternatively argue that, even if they were aware that Reginald
did not live in apartment three and were not acting pursuant to
a warrant for his arrest, they were justified in conducting a

12

Qualified immunity relative to the reasonable belief of
residence and reasonable belief that Reginald was inside
apartment three is addressed under Roman numeral I(3) infra.
29 

warrantless entry into and search of plaintiff’s apartment “due
to the exigent circumstances present at the time.”
Entry # 59, p. 7).

(Docket

Plaintiff argues that the facts do not

demonstrate a “‘compelling necessity for immediate action [as
will] not brook the delay of obtaining a warrant’” and that
defendants have not proved that exigent circumstances existed.
(Docket Entry # 62, p. 3).
The Fourth Amendment protects individuals “against
unreasonable searches and seizures” and, under this standard,
warrantless searches of private premises are presumptively
unreasonable.

United States v. Almonte-Báez, 857 F.3d 27, 31

(1st Cir. 2017).

As explained in Almonte-Báez, “To secure the

admission of evidence obtained without a warrant, the government
must show that the warrantless search fell within one of a
handful of narrowly defined exceptions,” such as the exception
for exigent circumstances.

Id.

The exigent circumstances “exception generally requires a
threshold showing that law enforcement officers had probable
cause to enter the premises.”

Id.

“[P]robable cause exists

when the totality of the circumstances create ‘a fair
probability that . . . evidence of a crime will be found in a
particular place.’”

Id.

The assessment of probable cause is

made in light of what the responding officers knew at the time
they effected the warrantless entry.
30 

Id. at 32.

A finding of

probable cause does not require proof beyond a reasonable doubt,
rather, “it requires proof adequate to ground an objectively
reasonable belief that evidence of a crime is likely to be found
in the premises to be entered.”

Id.; see United States v.

Floyd, 740 F.3d 22, 32 (1st Cir. 2014).

In Almonte-Báez,

probable cause was found to enter a residence based on the facts
that agents knew the suspect rented the apartment to be
searched, they observed the suspect carrying trash bags full of
money out of the apartment, the suspect was a known drug dealer,
and agents listened to wiretap intercepts detailing drug
shipments to be made.

Almonte-Báez, 857 F.3d at 32.

Here, a

reasonable factfinder could readily find in favor of plaintiff
that the responding officers did not have probable cause to
enter plaintiff’s apartment after the shooting because of their
lack of knowledge of Reginald’s whereabouts and weak evidence
that he was in apartment three, as opposed to apartment four.
In the alternative, assuming the existence of probable
cause to enter plaintiff’s apartment, defendants must still
prove that there were exigent circumstances.

Id. at 31.

“To

show exigent circumstances, the police must reasonably believe
that ‘there is such a compelling necessity for immediate action
as will not brook the delay of obtaining a warrant.’”

Id.

“The

government bears the burden of proving exigent circumstances.”
United States v. Samboy, 433 F.3d 154, 158 (1st Cir. 2005).
31 

“[E]xigent circumstances” commonly include:

“(1) hot pursuit of

a fleeing felon; (2) threatened destruction of evidence inside a
residence before a warrant can be obtained; (3) a risk that the
suspect may escape from the residence undetected; or (4) a
threat, posed by a suspect, to the lives or safety of the
public, the police officers, or to an occupant.”

United States

v. Tilbolt, 72 F.3d 965, 969 (1st Cir. 1995) (internal quotation
marks omitted); see Matalon v. Hynnes, 806 F.3d 627, 636 (1st
Cir. 2015).

“The ‘exigent circumstances’ inquiry is limited to

the objective facts reasonably known to, or discoverable by, the
officers at the time of the search.”

Tilbolt, 72 F.3d at 969.

“Officers must be able to point to specific facts in the
record to justify a warrantless entry based on exigent
circumstances.”
2008).

DeMayo v. Nugent, 517 F.3d 11, 17 (1st Cir.

“Hot pursuit” has been defined as some sort of chase,

although it need not be an extended “hue and cry” in and about
the public streets; however, the pursuit must be immediate or
relatively continuous to justify the failure to secure a
warrant.

United States v. Soto-Beníquez, 356 F.3d 1, 36 (1st

Cir. 2003); United States v. Baldacchino, 762 F.2d 170, 176 (1st
Cir. 1985).

Viewing the record in plaintiff’s favor, as

required, the police reports by the responding officers allow a
reasonable fact finder to conclude that the responding officers
were not in an active hot pursuit of Reginald because, when they
32 

arrived on scene, they were not aware of the location of
Reginald, nor did they know in which direction he had fled.
(Docket Entry # 63-4, pp. 4, 11-12, 16); cf. Soto- Beníquez, 356
F.3d at 35-36 (holding that police were justified under hot
pursuit doctrine in following defendant into house because
defendant was observed carrying a firearm and ran from police
when defendant noticed police presence and the officer observed
him run into house).

On the other hand, the officers were

responding to a shooting and a suspect, Reginald, fleeing.
(Docket Entry # 63, ¶¶ 14-15) (Docket Entry # 69, ¶¶ 14-15).
Based on their collective knowledge, they knew he may have gone
into his apartment, based on the dispatch radio communication of
Burton’s report that he went inside his apartment, which a
number of records identified as apartment four at 112 High
Street.

(Docket Entry # 69-1).

On balance and based on all of

the circumstances viewed in plaintiff’s favor, a reasonable fact
finder could conclude that the responding officers were no
longer in hot pursuit of Reginald at the time they entered
plaintiff’s apartment.
The responding officers next argue that the risk of
Reginald washing away gunshot residue and the victim’s blood
from his hands or clothes during the time necessary to secure a
warrant was compelling to justify entering plaintiff’s
apartment.

(Docket Entry # 59, p. 10).
33 

“To show exigent

circumstances, the police must reasonably believe that there is
such a compelling necessity for immediate action . . . like when
delay would risk the destruction of evidence.”

Belsito

Communications, Inc. v. Decker, 845 F.3d 13, 24-25 (1st Cir.
2016) (internal quotation marks omitted).

Caselaw requires

“that the police have an objectively reasonable basis for
believing that evidence destruction is likely to occur.”

Id.

For example, the court in “Samboy concluded that exigent
circumstances permitted a warrantless entry into a suspected
drug dealer’s apartment because what the officers did—‘knocking
and announcing their presence’—‘gave rise to a reasonable
belief’ that the dealer ‘probably would have realized’ that the
law was ‘closing in and begun disposing of the evidence.’”

Id.

at 25 (quoting Samboy, 433 F.3d at 158-59).
Here, viewing the record in plaintiff’s favor, the
responding officers did not know the location of Reginald after
the shooting.

The circumstances do not sufficiently evidence

that Reginald was inside apartment three.

At most, the officers

had specific facts he resided in apartment four and, in light of
Burton’s report communicated by dispatch, he may have been
inside apartment four perhaps washing his hand or clothes.
Thus, viewing the record in plaintiff’s favor, the
responding officers were not aware of the direction in which
Reginald fled, as evidenced by the police reports by Skwarto,
34 

Kramer and Schlageter.

(Docket Entry # 63-4, pp. 4, 11-12, 16).

In addition, TPD’s records indicated that Reginald resided in
apartment four, not plaintiff’s apartment, i.e., apartment
three, or simply 112 High Street.

Viewing the evidence in

plaintiff’s favor, the responding officers did not know
Reginald’s whereabouts after the shooting and lacked specific
facts that he was inside apartment three at the time they
entered that apartment.

The first three scenarios of exigent

circumstances do not warrant summary judgment based on exigent
circumstances.
As to the fourth scenario, defendants argue that many small
children lived in the building and therefore immediate entry
into plaintiff’s apartment was necessary in order to remove the
threat to the minor children posed by Reginald.
59, p. 9).

(Docket Entry #

“An officer’s reasonable belief that the delay

needed to obtain a warrant would pose ‘a threat to police or the
public safety’ is sufficient to create exigent circumstances.”
Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir. 1999)
(emphasis omitted).

In light of the foregoing disputed facts as

to Reginald’s location and the weak showing that Reginald was
inside apartment three, the concern for the safety of the
children in the area does not warrant summary judgment based on
the threat to the safety of children in the area.

35 

Defendants heavily rely on Commonwealth v. Figueroa in
arguing that exigent circumstances existed to justify a
warrantless entry and search of plaintiff’s apartment.
Commonwealth v. Figueroa, 9 N.E.3d 812, 820 (Mass. 2014);
(Docket Entry # 59, pp. 8-11).

In Figueroa, the police had

probable cause to believe that the shooter was present at 59
Salem Street because, at the time of entry, the police were
aware that a man who bore a resemblance to the shooter told a
taxicab driver to take him to 59 Salem Street.

Id.

In the case at bar, however, defendants have not produced
sufficient evidence to merit summary judgment showing that
Reginald was inside apartment three at the time they entered the
apartment.

What convinced Kramer to enter and search

plaintiff’s apartment was merely that, “It is known that
Reginald Jenkins lives at and has been observed at 112 High
Street on a daily basis.”

(Docket Entry # 63-4, p. 3).

The

objective evidence supporting this knowledge consisted of a
number of police records that identify apartment four, not
three.

What convinced Skwarto to enter and search plaintiff’s

apartment was that he observed Reginald Jr. walking towards the
direction of 112 High Street, a multi-unit building, and police
records designated apartment four as Reginald’s address.
(Docket Entry # 63-4, pp. 10-11).

Skwarto also was aware of the

active arrest warrant for Reginald that listed 112 High Street
36 

as his address, however, it lists Reginald’s address as “112
HIGH ST 4 TAUNTON MA 02780,” and not apartment three.
Entry # 60-13, ¶ 18) (Docket Entry # 69-2).

(Docket

What convinced

Schlageter, who entered later, to enter plaintiff’s apartment,
was that, “[b]ecause the shooting occurred in close proximity to
Ms. Jenkins [sic] residence, Detective Sergeant Skwarto,
Detective Kramer and I believed that Reginald Jenkins may be
hiding in his mothers [sic] apartment.”
p. 17).

(Docket Entry # 63-4,

In contrast to Figueroa, where the police knew where

the shooter directed the taxicab driver to drive to, the
responding officers had only some information about the
direction in which Reginald fled after the shooting, based on
dispatch that he was “inside the apartment over there where he
lives” and that he was “inside his apartment over there right
now.”

(Docket Entry # 69-1).

Defendants’ reliance on Figueroa

regarding exigent circumstances is therefore misplaced.

In sum,

defendants are not entitled to summary judgment on exigent
circumstances on Counts I and IX.
3.

Qualified Immunity as to Reasonable Belief of Residence
Asserting a qualified immunity defense, Skwarto,

Schlageter, Brady, Martin, Bolton, and Kramer seek to dismiss
the section 1983 and MCRA claims in counts I and IX based on
their reasonable belief that the apartment was Reginald’s
residence and their reasonable belief that Reginald was inside
37 

that apartment.

(Docket Entry # 59, pp. 4-6).

not address the argument in her brief.

Plaintiff does

(Docket Entry # 62).

“‘Qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’”

MacDonald v.

Town of Eastham, 745 F.3d 8, 11 (1st Cir. 2014) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)).

The doctrine affords

“breathing room” to government officials “to make reasonable but
mistaken judgments about open legal questions.”

Id.

The

doctrine does not protect public officials “who, ‘from an
objective standpoint, should have known that their conduct was
unlawful.’”

Drumgold v. Callahan, 707 F.3d 28, 42 (1st Cir.

2013); Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011).
The analysis is twofold.

Pearson v. Callahan, 555 U.S. at

816; see Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.
2009).

Courts must decide “(1) whether the facts alleged or

shown by the plaintiff make out a violation of a constitutional
right; and (2) if so, whether the right was clearly established
at the time of the defendant’s alleged violation.”

Rocket

Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013)
(internal quotation marks omitted); Maldonado, 568 F.3d at 269.
These two steps “need not be considered in any particular order,
and both prongs must be satisfied for a plaintiff to overcome a
38 

qualified immunity defense.”

Raiche v. Pietroski, 623 F.3d 30,

35 (1st Cir. 2010); accord Rivera-Sánchez, 715 F.3d at 9
(“federal courts have discretion to administer” the “test in the
order that they determine will best facilitate the fair and
efficient disposition of each case.”).
The second prong entails ascertaining “(a) the clarity of
the law in general at the time of the alleged violation; and (b)
the clarity of the law as applied to the case—in other words,
whether a reasonable person in the defendant’s shoes ‘would have
understood that his conduct violated the plaintiff’s
constitutional rights.’”

Pietroski, 623 F.3d at 36; see Glik v.

Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011).

The latter aspect is

“‘undertaken in light of the specific context of the case, not
as a broad general proposition.’”

Rivera-Sánchez, 715 F.3d at

9; Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

The

dispositive inquiry “is whether it would be clear to a
reasonable official that his conduct was unlawful in the
situation he confronted.”

Rivera-Sánchez, 715 F.3d at 9; see

Gericke v. Begin, 753 F.3d 1, 5-6 (1st Cir. 2014) (task
determines whether “law at the time of the alleged violation
gave the defendant fair warning that his particular conduct was
unconstitutional”).
Summary judgment relative to qualified immunity presents
“an inherent tension” because the latter “requires absolute
39 

deference to the nonmovant’s” facts whereas qualified immunity
“demands deference to the reasonable, if mistaken, actions of
the movant.”
2009).

Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir.

Courts are instructed to “cabin these standards and keep

them logically distinct, first identifying the version of events
that best comports with the summary judgment standard and then
asking whether, given that set of facts, a reasonable officer
should have known that his actions were unlawful.”

Id. at 19.

In identifying that version of events, the summary judgment
facts and reasonable inferences drawn therefrom are viewed in
plaintiff’s favor.

See Campos v. Van Ness, 711 F.3d 243, 245

(1st Cir. 2013) (when “parties tell two different stories, as is
the case here, we typically must view the facts and draw all
reasonable inferences in the non-movant’s favor”).

Plaintiff’s

factual assertions must nonetheless be “put forward on personal
knowledge or otherwise documented by materials of evidentiary
quality.”

Morelli, 552 F.3d at 18-19.

When the record

blatantly contradicts plaintiff’s version, “a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”

Campos, 711 F.3d at 245.

Here, the version of events includes that the officers had
an arrest warrant for Reginald listing an address of 112 High
Street.

Drawing reasonable inferences in plaintiff’s favor,

they knew that plaintiff lived in apartment three on the third
40 

floor of 112 High Street.

Although plaintiff lived in apartment

three at 112 High Street, the majority of TPD records refer to
Reginald’s address as apartment four and otherwise refer to
simply 112 High Street.

None of the records list Reginald’s

apartment as number three.
Entry # 69, ¶ 2).

(Docket Entry # 63, ¶ 2) (Docket

The dispatch recording informed the

responding officers that, “he’s [Reginald] inside the apartment
over there where he lives,” and to “seal it off until she
[Burton] gets here [the TPD station] and I’ll let you know,”
referring to informing the responding officers of Burton’s
statements once she arrived at the police station.
Entry # 69-1).

(Docket

As discussed above and viewing the evidence in

favor of plaintiff, the responding officers did not know
Reginald’s whereabouts after the shooting and lacked specific
facts that he was inside apartment three at the time they
entered that apartment.
For reasons previously explained, the facts make out a
violation of plaintiff’s right to be free from an unreasonable
search and seizure under the Fourth Amendment.

For purposes of

the second step of the analysis, whether the right in question
was “clearly established” depends on:

“(a) whether the legal

contours of the right in question were sufficiently clear that a
reasonable [official] would have understood that what he was
doing violated the right, and (b) whether in the particular
41 

factual context of the case, a reasonable [official] would have
understood that his conduct violated the right.”

Tavares v.

Gelb, No. 15-CV-130000-FDS, 2016 WL 6518428, at *6 (D. Mass.
Nov. 2, 2016) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 32-33
(1st Cir. 2011)).

To examine whether a right was “‘clearly

established’” at the time the complained of conduct occurred,
the court should “‘examine not only Supreme Court precedent, but
all available case law . . . including both federal cases
outside [the First Circuit] . . . and state court decisions of
the state wherein the [officials] operated.’”

Tavares, 2016 WL

6518428, at *6 (quoting Wilson v. City of Boston, 421 F.3d 45,
56-57 (1st Cir. 2005)).

The question is not whether some right

has been clearly established at a highly abstract level, but
“‘whether a reasonable official could have believed his actions
were lawful in light of clearly established law and the
information the official possessed at the time of his allegedly
unlawful conduct.’”

Tavares, 2016 WL 6518428, at *6 (quoting

McBride v. Taylor, 924 F.2d 386, 389 (1st Cir. 1991)); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (officials can still be
on notice that their conduct violates established law even in
novel factual circumstances).
Turning to the clearly established law, Payton and Graham
articulate the clearly established law in circumstances
involving entry into the wrong dwelling that is not the
42 

residence of the target of the arrest warrant.

Payton sets out

the overarching law that police with an arrest warrant “may
enter the dwelling of [the] suspect when ‘there is reason to
believe [he] is within.’”

Graham, 553 F.3d at 12 (quoting

Payton, 445 U.S. at 602).

Where, as here, the police discover

“after entry that the dwelling is not the suspect’s, the initial
entry may be justified under Payton provided the police
reasonably believed, prior to entry, that the suspect did reside
at the dwelling.”

Id.

Thus, at a less abstract level, the

determinative inquiry is whether “the police ‘reasonably
believed’ prior to entry that [the suspect] (1) resided at the
apartment and (2) would be present.”

Id.; accord Werra, 638

F.3d at 337.
Reducing the inquiry from the foregoing abstract law, as
previously stated Graham establishes the following as satisfying
a reasonable belief of residence:

a prior police report listing

the apartment as suspect’s residence, a probation officer
informing the police officer that the apartment was the
suspect’s residence, a person outside of the apartment informing
the police officer that the suspect resided inside the
apartment, a police officer noticing many known associates of
the suspect on the porch of the apartment, and the police
officer was unable to locate the subject of the arrest warrant
at a location previously associated with the subject.
43 

Graham,

553 F.3d at 13-14.

Clayton sets out the following as sufficient

to satisfy a reasonable belief of residence:

an anonymous

caller stating that the defendant resided at a particular house
(and that the house contained a methamphetamine lab), a computer
search by a detective verifying the address, and a person
leaving the house telling the officers that the suspect was
inside.

Clayton, 210 F.3d at 842-844; see Graham, 553 F.3d at

13 (discussing Clayton).
In the case at bar, the legal contours of the law in August
2013 would have given a reasonable police officer clear notice
that he lacked a reasonable belief that Reginald resided in
apartment three at 112 High Street.

The majority of the police

records identified Reginald’s address as apartment four and
otherwise as 112 High Street.

TPD officers knew that plaintiff

lived in apartment three of a multi-unit apartment building.
Dispatch transmissions that the victim’s mother said Reginald
was inside “his apartment over there” do not mention the 112
High Street address let alone apartment three.

Considering

these and other facts in the record, qualified immunity is
lacking with respect to a reasonable belief of residence.

It is

therefore not necessary to examine qualified immunity vis-à-vis
whether the officers had a reasonable belief Reginald was inside
apartment three.
4.

Fourteenth Amendment Substantive Due Process Claim
44 

Kramer, Skwarto, and Schlageter next assert that the entry
and search of plaintiff’s apartment was lawful and did not rise
to the level of “conscience-shocking” conduct which is
“necessary to support a due process claim under the Fourteenth
Amendment.”

(Docket Entry # 59, p. 12).

Thus, the due process

claim in Count I is subject to dismissal, according to the
defendants.
brief.

Plaintiff does not address this argument in her

(Docket Entry # 62).

“Substantive due process is a constitutional cause of
action that leaves the door ‘slightly ajar for federal relief in
truly horrendous situations.’”

Clark v. Boscher, 514 F.3d 107,

112 (1st Cir. 2008) (quoting Nestor Colón-Medina & Sucesores,
Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992)).

When a

plaintiff’s substantive due process claim challenges “the
constitutionality of certain executive acts, ‘the plaintiff must
show both that the acts were so egregious as to shock the
conscience and that they deprived him of a protected interest in
life, liberty, or property.’”

Harron v. Town of Franklin, 660

F.3d 531, 536 (1st Cir. 2011) (quoting Pagan v. Calderon, 448
F.3d 16, 32 (1st Cir. 2006)).

As explained in Harron, although

not “a rigid two-step analysis,” the court “typically” first
examines “whether the acts alleged were conscience-shocking.”
Harron, 660 F.3d at 536; see Martinez v. Cui, 608 F.3d 54, 64
(1st Cir. 2010).
45 

“There is no scientifically precise formula for determining
whether [an official’s] action is-or is not-sufficiently
shocking to trigger the protections of the substantive due
process branch of the Fourteenth Amendment.”
32.

Pagan, 448 F.3d at

Executive acts that shock the conscience, however, must be

“‘truly outrageous, uncivilized, and intolerable,’” and “‘the
requisite arbitrariness and caprice must be stunning, evidencing
more than humdrum legal error.’”

Harron, 660 F.3d at 536.

“[A]

hallmark of successful challenges is an extreme lack of
proportionality, as the test is primarily concerned with
violations of personal rights so severe[,] so disproportionate
to the need presented, and so inspired by malice or sadism
rather than a merely careless or unwise excess of zeal that it
amounted to a brutal and inhumane abuse of official power
literally shocking the conscience.’”

Id. (quoting González-

Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010)).
“[T]he requisite inquiry involves ‘a comprehensive analysis
of the attendant circumstances before any abuse of official
power is condemned as conscience-shocking.’”
32.

Pagan, 448 F.3d at

Courts have held, for example, “in situations ‘where

government officials must act in haste, under pressure, and
without an opportunity for reflection, even applications of
deadly force by those officials cannot be conscience-shocking
unless undertaken maliciously and sadistically for the very
46 

purpose of causing harm.’”

Molina, 607 F.3d at 881.

Conscience-shocking conduct has been usually held to entail
“physical or psychological abuse, or significant interference
with a protected relationship, such as the parent-child
relationship.”
2006).

McConkie v. Nichols, 446 F.3d 258, 261 (1st Cir.

Other examples of conscience-shocking conduct “include

the intentional framing of innocent citizens for serious crimes
they did not commit . . .

and cases involving ‘extreme or

intrusive physical contact.’”

DePoutot v. Raffaelly, 424 F.3d

112, 119 (1st Cir. 2005) (quoting Souza v. Pina, 53 F.3d 423,
427 (1st Cir. 1995)); see Limone v. Condon, 372 F.3d 39, 44-45
(1st Cir. 2004).

The First Circuit has “found no substantive

due process liability in situations in which law enforcement
officers committed reprehensible but less egregious acts, such
as deliberately shoving a pedestrian . . . or participating in
reckless high-speed car chases resulting in fatalities.”
DePoutot, 424 F.3d at 119; see Cummings v. McIntire, 271 F.3d
341, 345 (1st Cir. 2001).
Here, although the issue is close, a reasonable finder of
fact could find that the responding officers’ actions were
physically invasive and abusive and struck at plaintiff’s basic
right to be free from an unreasonable search and seizure.

See

Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 624 (1st Cir.
2000).

As discussed above, the responding officers did not know
47 

the location of Reginald as they entered plaintiff’s apartment
or, more specifically that he resided in and was located in
apartment three, thereby making the responding officers’ conduct
physically intrusive and unreasonable.

See id.

Plaintiff did

not give the responding officers permission to enter her
apartment.

(Docket Entry # 63, ¶ 26) (Docket Entry # 69, ¶ 26).

Skwarto kicked in plaintiff’s door and the responding officers
entered plaintiff’s apartment with their weapons drawn,
frightening plaintiff’s grandchildren who were playing in the
living room.
¶¶ 27-28).

(Docket Entry # 63, ¶¶ 27-28) (Docket Entry # 69,

Plaintiff also testified that an unidentified police

officer shoved her to prevent her from entering her bedroom.
(Docket Entry # 60-2, pp. 108-09).

Plaintiff testified that,

after she was brought outside in handcuffs and while in the
parking lot, Kramer took her wrists and “grinded” them together
inside her handcuffs, causing her pain.
34) (Docket Entry # 69, ¶ 34).

(Docket Entry # 63, ¶

Although a close call,

defendants’ argument therefore fails.
As a final matter relative to the substantive due process
claim, it is well settled that, “[S]ubstantive due process is an
inappropriate avenue of relief when the governmental conduct at
issue is covered by a specific constitutional provision.”
Fontanez v. City of Worcester, No. 09-cv-40203-FDS, 2012 WL
2829613, at *6 (D. Mass. July 9, 2012); (citing Pagan, 448 F.3d
48 

at 33, and Graham, 490 U.S. at 395).

“When a specific provision

of the Constitution protects individuals against a particular
kind of [misconduct] by government actors, individuals seeking
redress . . . must assert their claims under that particular
constitutional rubric instead of invoking the more generalized
notion of substantive due process.”

S. County Sand & Gravel Co.

v. Town of S. Kingstown, 160 F.3d 834, 835 (1st Cir. 1998).
Here, plaintiff contends that the responding officers violated
her substantive due process rights as well as the Fourth
Amendment by unlawfully searching her apartment without a
warrant.

(Docket Entry # 1, p. 4).

Because Kramer, Skwarto,

and Schlageter do not move for summary judgment based on the
foregoing principle, however, the due process claim remains in
this action at this juncture.
II.

Count V
Brady, Kramer, Skwarto, Schlageter, Martin, and Bolton

argue that plaintiff’s failure to intervene claim in Count V
should fail.

(Docket Entry # 59, pp. 12-14).

They assert that

none of the responding officers had a reasonable opportunity to
prevent Kramer’s alleged use of force or alleged unlawful
arrest.

(Docket Entry # 59, pp. 12-14) (Docket Entry # 70).

Plaintiff does not address the failure to intervene claim as
based on the use of excessive force.

Rather, she argues that

the responding officers had an opportunity to intervene by
49 

preventing the other officers from entering her apartment and
preventing the arrest from occurring.
7).

(Docket Entry # 62, p.

As pled, Count V alleges a failure to intervene “to prevent

fellow officers from unreasonably searching the Plaintiff’s
apartment and using excessive and unreasonable force.”

(Docket

Entry # 1, ¶ 48).
Assuming arguendo that Kramer used excessive force, the
responding officers did not have a realistic opportunity to
intervene.

The record fails to show which responding officers,

if any, were in a position to intervene to prevent Kramer’s
alleged use of force.

Kramer’s conduct gave no warning or

indication that he was about to hit or push plaintiff in the
back, knocking her to her knees.

Kramer also did not say

anything prior to arresting plaintiff.
121).

(Docket Entry # 60-2, p.

Rather, while she was still on her knees, he placed her

in handcuffs and brought her outside away from the other
responding officers still in the apartment.
2, pp. 129-31).

(Docket Entry # 60-

Kramer then ground plaintiff’s wrists together

for a brief period of time and placed her in the police cruiser.
(Docket Entry # 60-2, pp. 130-33).

The brevity of the force

exerted and the lack of any indication by Kramer concerning the
force about to be used provides no basis to allow a reasonable
fact finder to find that the other responding officers could
have had a realistic opportunity to intervene.
50 

See Gaudreault

v. Salem, 923 F.2d 203, 207 n.3 (1st Cir. 2009); Calvi v. Knox
Cty., 470 F.3d 422, 428 (1st Cir. 2006).
With respect to any failure to intervene claim based on
preventing the arrest from occurring, Kramer gave little, if
any, indication that he was about to arrest plaintiff once she
fell to her knees.

Notably, Kramer did not say anything prior

to arresting her.

Plaintiff’s assertion in her opposition that

“Skwarto ordered the plaintiff to be arrested” (Docket Entry #
62, p. 7) is not supported by any citation to the record.
Plaintiff’s LR 56.1 statement does not refer to Skwarto’s order.
The record otherwise fails to evidence that one or more of
Kramer’s fellow officers at the scene had a reasonable
opportunity to intervene and prevent Kramer from placing
plaintiff in handcuffs and arresting her.
In conclusion, a reasonable fact finder could not find that
the responding officers had a realistic opportunity to intervene
in the alleged excessive force or the arrest committed by
Kramer.

See Calvi, 470 F.3d at 428.

The failure to intervene

claims in Count V are therefore subject to summary judgment.
Because defendants do not address the failure to intervene claim
based on “unreasonably searching the Plaintiff’s apartment,” as
pled in the complaint (Docket Entry # 1, ¶ 48), this claim
remains in the case.
III.

Count VII
51 

Count VII sets out a section 1983 conspiracy to violate
plaintiff’s constitutional “right to due process, to be free
from unreasonab[le] search and seizures, and to be free from
unreasonable and excessive force.”

(Docket Entry # 1, ¶ 54).

In seeking summary judgment on this count, Brady, Kramer,
Skwarto, Schlageter, Martin, and Bolton only argue that the
record shows no evidence that the responding officers entered
into a conspiratorial agreement to violate plaintiff’s right to
be free from excessive force.13

(Docket Entry # 59, p. 14).

Plaintiff argues that the responding officers agreed to enter
plaintiff’s apartment without a warrant.

Plaintiff maintains

that Skwarto also ordered Kramer to place plaintiff under arrest
establishing a conspiratorial agreement to subject plaintiff to
the use of excessive force.

(Docket Entry # 62, pp. 6-7).

As commonly defined, a section 1983 conspiracy claim is “a
combination of two or more persons acting in concert to commit
an unlawful act, or to commit a lawful act by unlawful means,
the principal element of which is an agreement between the
parties to inflict a wrong against or injury upon another, and
an overt act that results in damages.”

Estate of Bennett v.

Wainwright, 548 F.3d 155, 178 (1st Cir. 2008); see Earle v.

13

  The other conspiracy claims to violate plaintiff’s right to
due process and right to be free from an unreasonable search and
seizure in Count VII therefore remain in this action.

52 

Benoit, 850 F.2d 836, 844 (1st Cir. 1988).

For a conspiracy

claim to be actionable under section 1983, the plaintiff must
prove there has been, besides the agreement, an actual
deprivation of a right secured by the Constitution and laws.
Benoit, 850 F.2d at 844.

Although “[c]onspiracy is a matter of

inference, . . . summary judgment may still be appropriate on a
conspiracy claim where the nonmoving party rests merely on
conclusory allegations.”

Wainwright, 548 F.3d at 178.

Here, there is an absence of sufficient evidence to create
a genuine issue of fact to allow a reasonable fact finder to
find a conspiratorial agreement.

The record does not support

any further purpose beyond the responding officers’ entry and
search of plaintiff’s apartment nor does it indicate an
agreement between the responding officers to deprive plaintiff
of the right to be free from the use of force.

Plaintiff

testified that none of the responding officers said anything to
her prior to entering her apartment.
82-83, 89).

Plaintiff also testified that Kramer did not say

anything prior to handcuffing her.
121).

(Docket Entry # 60-2, pp.

(Docket Entry # 60-2, pp.

Nothing in the record demonstrates that Skwarto ordered

Kramer to place plaintiff in handcuffs, as plaintiff alleges in
her opposition.
69, ¶¶ 30-31).

(Docket Entry # 63, ¶¶ 29, 31) (Docket Entry #
Plaintiff simply presents no evidence of an

agreement between the responding officers and the circumstantial
53 

evidence of an agreement is speculative.

With the responding

officers pointing to the absence of evidence to support or
reasonably infer a conspiratorial agreement to deprive plaintiff
of her right to be free from the use of excessive force, it was
incumbent upon plaintiff as the summary judgment target with the
underlying burden of proof to present evidence to establish a
genuinely disputed material fact that the responding officers
entered into an agreement to use excessive force against her.
Summary judgment on the conspiracy to use excessive force claim
in Count VII is proper.
IV.

Count XII
Skwarto and Schlageter argue that the malicious prosecution

claim in Count XII is subject to summary judgment because it was
only Kramer who placed plaintiff under arrest and sought
criminal charges against her.

(Docket Entry # 59, pp. 14-17).

Plaintiff argues that Skwarto and Schlageter should not be
dismissed from this count because Skwarto ordered Kramer to
arrest her and Schlageter submitted a report in support of the
charges brought against her.

(Docket Entry # 62, p. 8).

“Under Massachusetts law, there are three elements of a
malicious prosecution claim.
[s]he was damaged because:

A plaintiff must establish that

(1) the defendant commenced an

original action without probable cause, (2) with malice, and (3)
that the original action terminated in his favor.”
54 

Yacubian v.

United States, 750 F.3d 100, 109 (1st Cir. 2014); see Limone v.
United States, 579 F.3d 79, 89 (1st Cir. 2009); Nieves v.
McSweeney, 241 F.3d 46, 53 (1st Cir. 2001).

“In broad brush, an

individual may be said to have instituted criminal proceedings
against another if he caused those proceedings to be initiated.
The paradigmatic example exists when a person formally swears
out a criminal complaint against another person.”

Limone, 579

F.3d at 89.
“If an individual induces another person to lodge formal
criminal charges, he may be held to have instituted the criminal
proceedings.”

Id.

The mere transmission of information to a

police officer, who then uses his or her independent judgment to
pursue the matter and institutes criminal proceedings, is not
sufficient to support a malicious prosecution claim.

See Boyle

v. Barnstable Police Dept., 818 F.Supp.2d 284, 301-302 (D. Mass.
2011); Correllas v. Viveiros, 572 N.E.2d 7, 10 (Mass. 1991).
“If an individual either exercises a peculiar degree of control
over the charging official or adamantly presses that official to
bring a criminal complaint, he may be held responsible for the
institution of the prosecution.”

Limone, 579 F.3d at 89; see

Yacubian, 750 F.3d at 109 n.12 (merely taking steps to
strengthen case does not make agents “continuers” or actors of a
prosecution); see also Bernard v. United States, 25 F.3d 98, 104
(2nd Cir. 1994) (actions by agent after prosecution is brought
55 

cannot support claim of malicious prosecution in bringing the
charges).14
The record does not create a genuinely disputed fact that
Skwarto and Schlageter initiated criminal proceedings against
plaintiff.

Kramer was the arresting officer and he alone

applied for the criminal complaint against plaintiff.
Entry # 60-10, p. 1).

(Docket

The Clerk Magistrate at the Taunton

District Court found probable cause to issue each of the charges
sought against plaintiff.

Nothing in the record demonstrates

that Skwarto ordered Kramer to place plaintiff under arrest or
file criminal charges against her, as plaintiff has alleged.
(Docket Entry # 63, ¶¶ 29, 31, 50) (Docket Entry # 69, ¶¶ 30-31,
50).

The record also fails to indicate that Skwarto or

Schlageter induced Kramer to file criminal charges against
plaintiff.

(Docket Entry # 63, ¶ 50) (Docket Entry # 69, ¶ 50).

Summary judgment on Count XII is therefore appropriate as to
Skwarto and Schlageter.
V.

Count XIII
Skwarto and Schlageter next argue that the abuse of process

claim in Count XIII fails because there are no facts that
Skwarto or Schlageter intentionally caused criminal process to
issue against plaintiff with evil intentions.

(Docket Entry #

14

The First Circuit in Yacubian cites and relies on Bernard.
See Yacubian, 750 F.3d at 108 n.13.

56 

59, pp. 14-17).

Plaintiff argues that this claim should not be

dismissed against Skwarto and Schlageter because Skwarto ordered
Kramer to arrest plaintiff and Schlageter submitted a report in
support of the charges brought against plaintiff.

(Docket Entry

# 62, pp. 7-8).
A common law claim for abuse of process “requires a
plaintiff to show that ‘process’ was used for an ulterior or
illegitimate purpose and resulted in damages.”

Yacubian, 750

F.3d at 110; Millennium Equity Holdings, LLC v. Mahlowitz, 925
N.E.2d 513, 522 (Mass. 2010).

In the context of abuse of

process, “process” refers to the papers issued by a court to
bring a party or property within its jurisdiction.

Jones v.

Brockton Pubic Markets, Inc., 340 N.E.2d 484, 486 (Mass. 1975).
“An abuse of process claim requires that the defendants
participate in judicial proceedings against the plaintiff.”
Boyle, 818 F.Supp.2d at 304; see Piccone v. McClain, 720 F.Supp.
2d 139, 146 (D. Mass. 2010).
It is well settled that, “in order to establish an abuse of
process claim, a plaintiff must provide evidence of an ulterior
purpose.”

Boyle, 818 F.Supp.2d at 304.

“An ulterior purpose

exists when the defendant uses process ‘to accomplish some
ulterior purpose for which it was not designed or intended, or
which was the legitimate purpose of the particular process
employed.’”

Id.; Psy-Ed Corp. v. Klein, 947 N.E.2d 520, 534
57 

(Mass. 2011).

As further explained in Boyle, the claim is

“‘described as a form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such
as the surrender of property or the payment of money.’”

Boyle,

818 F.Supp.2d at 305; see Fabre v. Walton, 781 N.E.2d 780, 783
n.3 (Mass. 2002).

“Filing a groundless claim ‘is relevant

because it may tend to show that the process was used for an
ulterior purpose.’”

Boyle, 818 F.Supp.2d at 305; Psy-Ed Corp.,

947 N.E.2d at 534.

The ulterior purpose element, however, “‘is

not satisfied merely by a showing that a person commenced
litigation knowing it was groundless.’”

Boyle, 818 F.Supp.2d at

305; Psy-Ed Corp., 947 N.E.2d at 534; accord EmpireToday, LLC v.
National Floors Direct, Inc., 788 F.Supp. 2d 7, 23 (D. Mass
2011) (“filing groundless claim or having an improper motive of
vexation, harassment, or annoyance is relevant but does not
alone suffice to demonstrate ulterior purpose”).
The summary judgment record does not include sufficient
facts to create a genuine issue concerning the ulterior purpose
elements as to either Skwarto or Schlageter.

The record lacks

evidence to demonstrate or reasonably infer that Skwarto or
Schlageter sought some surrender of plaintiff’s property or
sought some payment of money.

Even if the prosecution filed

against plaintiff was groundless, it would not be enough on its

58 

own to demonstrate an ulterior purpose.

Summary judgment on

Count XIII as to Skwarto and Schlageter is proper.
VI.

Count VI
Skwarto and Schlageter also argue that the section 1983 due

process claim based on their “‘filing false charges’” against
plaintiff fails for the same reasons the abuse of process claim
and malicious prosecution claim fails.
n.5).

(Docket Entry # 59,

Skwarto and Schlageter also maintain that plaintiff fails

to point to “‘any extreme and egregious,’” or “‘conscienceshocking behavior’” that deprived plaintiff of a protected
interest in her life, liberty, or property.
n.5).

(Docket Entry # 59,

Plaintiff does not address these arguments.

Entry # 62).

(Docket

As discussed previously, plaintiff must show that

the filing of false charges by Skwarto and Schlageter was so
egregious as to shock the conscience and that they deprived
plaintiff of a protected interest in life, liberty, or property.
Harron v. Town of Franklin, 660 F.3d at 536; Pagan v. Calderon,
448 F.3d at 32.

The relevant and applicable law set out in

Roman numeral I(4) need not be repeated.
Here, the record does not create a genuine issue of
material fact of conscience shocking behavior as to Skwarto and
Schlageter.

The filing of false charges against plaintiff does

not rise to the level of “a brutal and inhumane abuse of
official power literally shocking the conscience.”
59 

Gonzales-

Fuentes v. Molina, 607 F.3d 864, 881.

The submission of police

reports by Skwarto and Schlageter in regard to the charges filed
against plaintiff does not rise to the level of what courts have
traditionally held as conscience-shocking behavior.

Summary

judgment is therefore warranted on Count VI as to Skwarto and
Schlageter.
VII.

Count XIV
Defendants next argue that the intentional infliction of

emotional distress claims in Count XIV against Skwarto,
Schlageter, Brady, Martin, and Bolton are subject to summary
judgment.
4).

(Docket Entry # 59, pp. 17-18) (Docket Entry # 70, p.

Plaintiff maintains that sufficient facts exist to avoid

summary judgment.

(Docket Entry # 62).

An intentional emotional distress claim requires the
plaintiff to show:
“(1) that the defendant intended to inflict emotional
distress or that he knew or should have known that
emotional distress was the likely result of his conduct;
(2) that the conduct was extreme and outrageous, was beyond
all possible bounds of decency and was utterly intolerable
in a civilized community; (3) that the actions of the
defendant were the cause of the plaintiff’s distress; and
(4) that the emotional distress sustained by the plaintiff
was severe and of a nature that no reasonable man could be
expected to endure it.”
Limone v. U.S., 579 F.3d 79, 94 (1st Cir. 2009) (quoting Agis v.
Howard Johnson Company, 355 N.E.2d 315, 318-19 (Mass. 1976)).
“[T]o the extent that police are merely carrying out their

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obligation as law enforcement officers, their conduct as a
matter of law is not deemed extreme and outrageous.”

Barbosa v.

Conlon, 962 F.Supp.2d 316, 334 (D. Mass. 2013).
Liability is not “predicated on mere insults” or
“indignities.”

Tetrault v. Mahoney, Hawkes & Goldings, 681

N.E.2d 1189, 1197 (Mass. 1997).

It is also not “enough that the

defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress,
or even that his conduct has been characterized by malice or a
degree of aggravation which would entitle the plaintiff to
punitive damages for another tort.’”

Id. (quoting Foley v.

Polaroid Corp., 508 N.E.2d 72, 81 (Mass. 1987)) (internal
quotation marks omitted).

Rather, “Extreme and outrageous

conduct is behavior that is ‘so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.’”

Young v. Wells Fargo

Bank, N.A., 717 F.3d 224, 240 (1st Cir. 2013); Lund v.
Henderson, 22 F.Supp.3d 94, 106 (D. Mass. 2014).

Here, as in

Lund, plaintiff “cited no case in which an unlawful arrest
alone” reached “the level of ‘extreme and outrageous conduct.’”
Lund, 22 F.Supp.3d at 106.

Indeed, the court in Lund allowed

summary judgment in a case involving a police officer
handcuffing the plaintiff and then dragging him by the handcuffs
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“to the police cruiser,” at which point the officer hit the
plaintiff on the head and pushed him down into the police
cruiser.

Id. at 100.

Similar to the case at bar, the handcuffs

caused Lund wrist pain.

Id.

He also complained about the pain

to officers and he sought medical treatment.

Id.

Here, plaintiff asserts that “defendant[s] pointed their
guns” at plaintiff’s grandchildren.

(Docket Entry # 62).

At

her deposition, however, plaintiff testified that she saw two
officers with their guns out but she did not witness an officer
“point a gun at anyone that night.”
117).

(Docket Entry # 60-2, p.

Although plaintiff argues she was arrested for crimes she

did not commit and for which the officers lacked probable cause
(Docket Entry # 62), the Clerk Magistrate at the Taunton
District Court found probable cause to issue each of the charges
sought against plaintiff.

(Docket Entry # 60-11).

It is true

that plaintiff cries whenever she thinks about the incident.
She has not sought treatment, however, for the emotional
distress or taken medication.

(Docket Entry # 60-2, pp. 202-

03); see Kennedy v. Town of Billerica, 617 F.3d 520, 530-31 (1st
Cir. 2010).

Kramer as opposed to Skwarto, Schlageter, Brady,

Martin, and/or Bolton made the arrest and ground plaintiff’s
wrists.

Viewing the entire summary judgment record, the facts

are insufficient to allow a reasonable finder of fact to
conclude that Skwarto, Schlageter, Brady, Martin, and/or Bolton
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engaged in extreme and outrageous conduct.

Summary judgment is

appropriate as to the intentional infliction of emotional
distress claims in Count XIV against Skwarto, Schlageter, Brady,
Martin, and Bolton.
CONCLUSION
The motion for summary judgment (Docket Entry # 58) is
ALLOWED in part and DENIED in part.

After numerous extensions

of the dispositive motion deadline, there shall be no further
extensions in this case, which plaintiff filed in January 2015.
The parties shall file the status report relative to Count XIV
within 14 days.

This court will conduct a status conference on

November 9, 2017 at 2:30 p.m. to set a trial date.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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