Justiniano v. Walker et al

Filing 90

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER granting 58 Motion for Summary Judgment (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DAMARIS JUSTINIANO, as the
Personal Representative of the
Estate of WILFREDO JUSTINIANO
Jr.,

No. 15-CV-11587-DLC

Plaintiff,
v.
STEPHEN WALKER and TIMOTHY P.
ALBEN,
Defendants.

MEMORANDUM AND ORDER
CABELL, U.S.M.J.
This case arises from a tragic and unfortunate incident.
Massachusetts State Police Trooper Stephen Walker responded to a
call and in the course of their encounter shot and killed Wilfredo
Justiniano Jr. Damaris Justiniano has brought suit as the personal
representative of Justiniano’s estate, and the complaint presently
alleges claims against Trooper Walker for excessive force and
wrongful death.

The defendant moves for summary judgment on both

counts and the plaintiff opposes.

(Dkt. No. 58, 73).

After

careful consideration of the record, the parties’ submissions, and
the information adduced at a hearing on the motion, the motion for

summary judgment will be GRANTED.

The reasons for this ruling are

explained below.
I.

RELEVANT FACTS
On June 14, 2013, Karen Kyriakides (“Kyriakides”) was driving

on Route 28, a multilane state highway, when she observed the car
in front of her drive erratically before coming to a stop on the
side of the road.

(Defendant Stephen Walker’s Statement of

Undisputed Material Facts In Support of His Motion For Summary
Judgment (“Defendant’s SUF”), at ¶¶ 56-58). When Kyriakides passed
the vehicle she observed a man, later identified as Justiniano,
holding his right hand over his heart with his head tilted back.
(Id., at ¶ 58).
him.

Kyriakides approached the vehicle to check on

As she did so, Justiniano got out of his car and appeared

distraught and confused.

(Id.).

Kyriakides asked Justiniano if

he needed a doctor and “he answered in a language that [Kyriakides]
did not understand.”

(Id.).

Kyriakides instructed Justiniano to

sit in his car while she went to call the police and for an
ambulance.

(Id.).

Justiniano complied with her instructions.

(Id.).
Kyriakides returned to her vehicle and dialed 911.

She

informed the operator that there was a possible medical emergency
and that she was concerned for the man’s safety as well as the
safety of others.

(Id., at ¶ 59).

While on the phone with the

police, Kyriakides observed Justiniano outside of his vehicle
2 

throwing his arms and hands up in the air and titling his head
back.

(Id., at ¶ 60).

tongues.”

(Id.).

He appeared as though “he was speaking in

Kyriakides observed Justiniano pacing and

walking around his car and thought he might walk into the travel
lane of the road.

(Id. ¶¶ 61-62).

Trooper Walker responded to the call.

(Id., at ¶¶ 15-16).

When he arrived on the scene he observed Justiniano standing in
the roadway, yelling and jumping up and down.

(Id., at ¶ 17).

Before exiting his vehicle to assess the situation, Trooper Walker
radioed dispatch that he was on the scene.

He also requested that

another unit be dispatched because “something di[d not] feel
right.”

(Id., at ¶¶ 20-21).

Trooper Walker approached Justiniano and asked him “what was
wrong, what was going on, [or] something to that effect.”
at ¶ 23).

(Id.,

Justiniano, who was about 14 to 20 feet away, told

Trooper Walker that he was “an undercover cop” and that Walker
would have to kill him.1

(Id., at ¶ 25).

Unbeknownst to Trooper

Walker at the time, Justiniano had a long history of mental illness

1

 The plaintiff disputes that these statements were made but bases the dispute
on the fact that other witnesses testified that they could not hear what
Walker and Justiniano said to each other. The court does not view that as a
basis to question Trooper Walker’s assertion. Suarez v. Pueblo Int’l, Inc.,
229 F.3d 49, 53 (1st Cir. 2000)(“[A plaintiff] cannot rely on the absence of
competent evidence, but must affirmatively point to specific facts that
demonstrate the existence of an authentic dispute.”); see also  Chappell v.
City of Cleveland, 585 F.3d 901, 914 (6th Cir. 2009)(witnesses’ failure to
hear announcements did not refute testimony that such announcements were made
and thus did not raise genuine dispute of fact).   

3 

which included a history of non-compliance with respect to taking
his medication.

(Id., at ¶ 84-85).

Kyriakides, still in her car, could not hear the conversation
between Justiniano and Walker because her windows were closed.
She did however observe Trooper Walker speaking to Justiniano and
appearing to try and calm him down.

(Id., at ¶ 64).

Justiniano slowly approached Trooper Walker and repeated that
he (Walker) would have to kill Justiniano, and that if he did not,
Justiniano would kill him.

(Id., at ¶¶ 28-29).

Trooper Walker

gestured to Justiniano to stop advancing and he simultaneously
backed up slightly to maintain the distance between them.

(Id.,

at ¶ 26). Trooper Walker also observed that Justiniano was holding
a blue stick ballpoint pen just as one would hold a knife. (Id.,
at ¶ 27).
Notwithstanding

Trooper

Walker’s

Justiniano began to pick up speed.

gesture

that

he

stop,

Trooper Walker warned him to

stop approaching and to drop the pen.

(Id., at ¶¶ 31-32).

Justiniano did not drop the pen and continued to walk towards
Trooper Walker.
Jo-Ann

(Id., at ¶¶ 31-33).

Silva-Winbush

(“Winbush”)

was

in

a

car

as

she

approached the two men and slowed down after observing police
lights.

She observed a police officer, presumably Trooper Walker,

jump backwards in front of her car, in the travel lane of the

4 

roadway.

(Id., at ¶ 70).

She then observed a man, presumably

Justiniano, “running after the cop.”
Kyriakides
roadway.

also

saw

(Id., at ¶ 71).

Justiniano

and

Walker

close

to

the

She did not see a weapon but it looked to her as though

Justiniano was ready to jump on Trooper Walker.

(Id., at ¶ 65;

Plaintiff’s SUF, at ¶ 89).
Winbush observed Trooper Walker signal Justiniano to stop by
putting

his

left

hand

out

with

his

palm

facing

Justiniano.

Justiniano continued to approach Trooper Walker and at the same
time pulled something from his waist.
75).

(Defendant’s SUF, at ¶¶ 74-

Trooper Walker was about 14 feet away from Justiniano and

warned him that he would use pepper spray if Justiniano continued
to advance.

(Id.).

According to Winbush, Justiniano moved towards Trooper Walker
with his hands up near his shoulders and lunged at Trooper Walker.
(Id., at ¶ 73).

She observed that Trooper Walker then held up his

hand to either signal Justiniano to stop or to use pepper spray.
(Id., ¶¶ 73, 74).

In fact, Trooper Walker emitted a short burst

of pepper spray, which had no real effect on Justiniano.
¶¶ 37, 76).

(Id., at

Trooper Walker then jumped back again, further into

the travel lane.

(Id., at ¶ 72).

Justiniano rubbed his face after being sprayed and appeared
angry.

(Id.).

Justiniano continued to advance towards Trooper

Walker and Trooper Walker in turn backed up to maintain the
5 

distance between them.

Trooper Walker warned Justiniano that he

would pepper spray him again if Justiniano continued to advance.
This warning did not work and Justiniano continued to advance.
Consequently, Trooper Walker used the pepper spray a second time.
(Id., ¶¶ 37-39).

This second use of the spray took place less

than one minute after the first.

(Defendant Stephen Walker’s

Supplemental Statement of Undisputed Material Facts in Support of
His Motion for Summary Judgment (Defendant’s Supp. SUF), at ¶ 106).
Following the second burst, Trooper Walker radioed again for
assistance.

(Defendant’s SUF, at ¶ 38).

Like the first burst, the second burst of pepper spray did
not seem to have any effect on Justiniano.

However, some of the

spray blew back into Trooper Walker’s face and compromised his
vision.

(Id., at ¶ 40).

A witness observed that Justiniano

appeared “ready to fight now” and Trooper Walker jumped back
further into the travel lane of the roadway as he tried to clear
the pepper spray from his face.

(Id., at ¶¶ 41, 77).

Another witness stated that Justiniano then came “raging” at
Walker with his fists up towards the Trooper’s face.
78).

(Id., at ¶

Yet another witness observed that Justiniano’s fist was

clenched and it appeared as though he might attack Trooper Walker.
(Defendant Stephen Walker’s Response to Additional Material Facts

6 

Submitted By Plaintiff, (“Defendant’s Response”), at ¶ 104.2 For
his part, Trooper Walker recalled that just prior to the shooting,
Justiniano was running at him with a pen still in his hand, looking
angry, and yelling that he was going to kill him. (Id., at ¶ 41).
According to Winbush, Trooper Walker pulled his weapon out as
Justiniano was almost “on him.”

Trooper Walker did not have time

to either fully extend his arm or warn Justiniano that he was going
to shoot.

(Id. at ¶¶ 45, 79).

Instead, Trooper Walker pointed

his firearm at Justiniano and shot twice from the hip, hitting
Justiniano once in the left wrist and once in the chest.

(Id., at

¶ 43).
Kyriakides did not observe the shooting but she did hear the
gunshots.

The last thing she saw before she heard the shots was

Justiniano trying to jump on Trooper Walker from about a foot away.
(Id., at ¶ 67).
Overall, the time interval between the second burst of pepper
spray and the shooting was less than twenty seconds.

(Defendant’s

Supp. SUF, at ¶ 106).
After being shot, Justiniano stopped about four feet away
from Walker.

(Defendant’s SUF, at ¶ 45).

Trooper Walker backed

up and told Justiniano several times to get on the ground.

(Id.).

2

To be sure, witnesses to the shooting describe Justiniano’s pre-shooting
movements differently but none disagree that Justiniano aggressively
approached Walker just prior to the shooting. (Defendant’s Response, at ¶
104).

7 

Justiniano then went down to his knees and then onto his back as
Trooper Walker radioed that shots had been fired.
Trooper

Walker

then

approached

Justiniano.

(Id., at ¶ 46).
When

Justiniano grabbed his arm and tried to swing at him.

he

neared,

(Id., at ¶¶

47, 81).
The first trooper on scene after the shooting observed Trooper
Walker in the travel lane of the roadway and Justiniano partially
in the travel lane.

(Id., at ¶ 51).

The trooper observed a shell

casing and a blue Bic round stick pen at the scene.
55).

(Id., at ¶

Winbush watched as another trooper came up to Justiniano and

tried to place handcuffs on him as he lay on the ground.
¶ 81).

(Id., at

Justiniano tried to grab the trooper so two other troopers

came to help.

(Id.).

Justiniano was eventually handcuffed and

transported by ambulance to a local hospital, where he died from
his wounds.
II.

(Id., at ¶¶ 81, 83).

LEGAL STANDARD

When

the

Court

is

presented

with

a

motion

for

summary

judgment, it shall grant it “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to a judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

The

moving party bears the initial burden of “assert[ing] the absence
of a genuine issue of material fact and then support[ing] that
assertion

by

affidavits,

evidentiary quality.”

admissions,

other

materials

of

Mulvihill v. Top-Flite Golf Co., 335 F.3d
8 

or

15, 19 (1st Cir. 2003).

Once the moving party meets that burden,

in order to avoid summary judgment, the opposing party must “show
that a factual dispute does exist, but summary judgment cannot be
defeated

by

relying

on

improbable

allegations, or rank speculation.”

inferences,

conclusory

Fontanez-Nunez v. Janssen

Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (quoting Ingram v.
Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)).
opposing

party

must

“produce

specific

facts,

Indeed, the
in

suitable

evidentiary form, to establish the presence of a trialworthy
issue.”

Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)

(quoting Triangle Trading Co. v. Robroy Indus. Inc., 200 F.3d 1,
2 (1st Cir. 1999)).
When determining whether summary judgment is appropriate, “a
court must view the record in the light most favorable to the
nonmoving party and give that party the benefit of all reasonable
inferences in its favor.” Id. (citing Nicolo v. Philip Morris,
Inc., 201 F.3d 29, 33 (1st Cir. 2000)).

“Where the record taken

as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.”

Scott v.

Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal
quotation marks omitted).

9 

III. DISCUSSION
The complaint presently asserts two claims.

Count I alleges

under 42 U.S.C. § 1983 that Trooper Walker used excessive force
against Justiniano, in violation of Justiniano’s Fourth Amendment
rights.
Count II ostensibly asserts two claims.

It alleges a section

1983 claim for excessive force, in violation of Justiniano’s
Fourteenth Amendment rights, and also asserts a claim for wrongful
death under the Massachusetts Wrongful Death Statute, M.G.L. ch.
229.

The plaintiff agreed at a court hearing that Count II should

be read as a practical matter to assert a single claim for wrongful
death under chapter 229.
A. Count I- Fourth Amendment Excessive Force Claim
Count I alleges under 42 U.S.C. § 1983 that Trooper Walker
acted wantonly and recklessly and used excessive force when he
fatally shot Justiniano.

The defendant argues that he acted

reasonably in context, and that he is entitled to qualified
immunity even assuming he violated Justiniano’s rights.
Section 1983 “is not itself a source of substantive rights,
but

merely

provides

elsewhere conferred.”
(1989).

a

method

for

vindicating

federal

rights

Graham v. Connor, 490 U.S. 386, 393-94

In order to prevail under section 1983, a plaintiff must

show that the defendants (1) acted under “color of state law,” and
(2) deprived [the] plaintiff of a right secured by the Constitution
10 

or the laws of the United States.

Budnick v. Baybanks, Inc., 921

F. Supp. 30, 32 (D. Mass. 1996).

For purposes of this motion,

there is no dispute that Trooper Walker was at all times acting
under color of law.

There is also no dispute that Justiniano, at

the time of the shooting, was seized for purposes of the Fourth
Amendment.

California v. Hodari D., 499 U.S. 621, 626 (1991);

Stamps v. Town of Framingham, No. 12-11908-FDS, 2014 U.S. Dist.
LEXIS 177455 *9-10 (December 26, 2014).
The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”

U.S. Const. amend. IV. A

police officer’s use of deadly force is deemed a seizure under the
Fourth Amendment, and such an extreme action is reasonable only
when “at a minimum, a suspect poses an immediate threat to police
officers or civilians.”

Jarrett v. Town of Yarmouth, 331 F.3d

140, 149 (1st Cir. 2003)(internal citations omitted).

Whether the

use of deadly force violated an individual’s Fourth Amendment right
is determined by considering whether the officer’s conduct was
“objectively reasonable.”

Graham v. Connor, 490 U.S. 386, 397

(1989).
The shooting of a mentally ill man was unquestionably tragic,
as such shootings always are, but tragedy does not equate with
unreasonableness.

The determination of reasonableness must make

an allowance for the need of police officers to “make split second
11 

judgments” in situations that are uncertain, tense, and evolving.
Berube v. Conley, 506 F.3d 79, 83 (1st Cir. 2007).

The intentional

use of deadly force during a seizure is reasonable where an officer
had probable cause to believe the victim posed a threat of serious
physical harm or death.

Tennessee v. Garner, 471 U.S. 1, 3 (1985).

The incident must be viewed from the “perspective of a reasonable
officer

on

the

hindsight.”
“without

scene,

rather

than

with

Graham, 490 U.S. at 396.

regard

motivation.”

to

[the

the

20/20

vision

of

The inquiry is objective,

officer's]

underlying

intent

or

Id. at 397.

Based on the record, the court finds that Trooper Walker acted
reasonably

and

did

not

use

excessive

Justiniano’s Fourth Amendment rights.

force

in

violation

of

To begin, Trooper Walker

had limited information as he arrived on scene.

When he first

observed Justiniano, he was behaving erratically and jumping up
and down in or near a busy roadway, during the morning commute.
When Trooper Walker initially approached Justiniano to assess the
situation, Justiniano threatened to kill Trooper Walker if he did
not kill Justiniano first. Witnesses confirmed that Trooper Walker
attempted to calm Justiniano down through the use of verbal
techniques and hand gestures, to no avail.
Tensions rose further when Justiniano continued to approach
Trooper Walker and Walker in turn backed up into the travel lane
of a busy roadway where motorists were still operating vehicles.
12 

Despite repeated instructions to stop, Justiniano continued to
approach Trooper Walker with a pen wielded in a threatening
manner.3
Trooper Walker sought again to deescalate the situation.

He

warned Justiniano that he would use pepper spray if Justiniano
continued to advance and did not drop the pen.

Justiniano did not

stop and Trooper Walker accordingly used the spray in an effort to
stop

his

advancement.

Unfortunately,

it

did

not

work

and

Justiniano in response approached more quickly with his hands
raised, “ready to fight.”

Trooper Walker again used the pepper

spray to retard Justiniano’s advance but this time took some of
the spray himself, which in turn impaired his ability to see.
Even then, the record reflects that Trooper Walker did not
take action against Justiniano and instead radioed for back-up
assistance.

Witnesses saw Justiniano running at Trooper Walker,

ready to “jump on him” from four feet away.

It is at this point,

with his vision was compromised, standing in the travel lane of a
busy

roadway,

and

with

Justiniano

rapidly

approaching

him

3

The plaintiff contends that there is a dispute whether Justiniano had a pen
where no other witness testified to seeing one. He argues that a pen is not a
dangerous weapon in any event. However, the record reflects that a pen was
found at the scene near to a shell casing, and no witness actually contradicted
Trooper Walker’s testimony by affirmatively stating that Justiniano did not
hold a pen. The court does not view this discrepancy as presenting an issue of
fact.
And, assuming Justiniano did have a pen, it is clear that a pen can
become a dangerous weapon if it is used in a way that makes it capable of
causing serious harm. U.S. v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015).

13 

apparently ready to fight, that Trooper Walker then removed his
firearm and fired twice from the hip.
Against that backdrop, the court cannot find that Trooper
Walker’s use of force was unreasonable.

Justiniano told Trooper

Walker that he would kill him if Walker did not kill him first.
He also failed to obey Trooper Walker’s commands and warnings and
continued to come towards him.

This heightened the risk of danger

because it signaled that Justiniano was non-compliant and because
it forced Trooper Walker to back up into the path of traffic to
maintain

distance.

Trooper

Walker

attempted

to

diffuse

the

situation by issuing more warnings and by calling for assistance,
and shot Justiniano only after Justiniano suddenly closed the
distance between the two men in a manner that strongly suggested
he planned to attack Trooper Walker with a weapon.

Under these

circumstances, it was not objectively unreasonable for Trooper
Walker to take the actions he took to ensure the safety of himself
and others nearby.

Graham, 490 U.S. at 396 (court must “judge

[reasonableness] through the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight”).
Accordingly, despite the sad end to this encounter, the court finds
that Trooper Walker’s decision to shoot Wilfredo Justiniano was
objectively reasonable and comported with the Fourth Amendment.4

4

 It bears noting that Trooper Walker’s conduct comported with the
Massachusetts State Police Use of Force Policy where he started with verbal

14 

To be sure, the plaintiff argues that Trooper Walker should
have known from Justiniano’s erratic behavior that he was mentally
ill. The plaintiff argues that, assuming that is the case, Trooper
Walker’s use of deadly force to respond to the situation was
excessive and unjustified.

In that regard, the First Circuit has

observed that a heightened level of care and concern may need to
be applied when evaluating the use of reasonable force in lethal
force cases where the individual is suicidal or troubled, but that
solicitude applies chiefly where the individual poses no real
security risk to anyone other than themselves. McKenny v. Mangino,
873 F.3d 75, 82 (1st Cir. 2017).

Here, Justiniano posed a genuine

threat of harm to Trooper Walker and the situation moreover
threatened to spill into oncoming traffic and create a danger to
others.

Under the circumstances, the court finds that Trooper

Walker did not act unreasonably even assuming there was a basis to
believe Justiniano had mental health issues.
Cnty.

of

San

Francisco

v.

Sheehan,

135

S.

See e.g., City &
Ct.

1765,

1775

(2015)(officer justified in shooting mentally ill patient who had
a knife and continued to advance within feet of the officer after
pepper spray did not stop her).

Similarly, the court finds no

basis to fault Trooper Walker for acting without waiting for backup
or first assessing whether a medical emergency existed. See Scarpa

techniques and only escalated to lethal force when Justiniano advanced upon
him in the roadway in a threatening manner. (Defendant’s SUF, at ¶¶ 3-11).  

15 

v. Murphy, 806 F.2d 326, 329 (1st Cir. 1986)(court will not secondguess officer’s decision to not wait for backup assistance where
to have done so could be construed as a shirking of their duty).
B. Qualified Immunity
Even assuming arguendo that Trooper Walker’s conduct amounted
to a violation of Justiniano’s Fourth Amendment rights, the court
finds that he would be entitled to qualified immunity.
doctrine

of

qualified

immunity

shields

officials

from

“The
civil

liability so long as their conduct does not violate clearly
established

statutory

or

constitutional

reasonable person would have known.”

rights

of

which

a

Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)).

In determining whether a defendant is entitled to

qualified immunity, a court should consider: “(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.”
Ciolino v. Gikas, 861 F.3d 296, 303 (1st Cir. 2017).

The second

prong has two components: “(a) whether the legal contours of the
right in question were sufficiently clear that a reasonable officer
would have understood that what he was doing violated the right,
and (b) whether in the particular factual context of the case, a
reasonable officer would have understood that his conduct violated
the right.”

Id.

While qualified immunity cannot protect Trooper
16 

Walker from liability if, on an objective basis, no reasonably
competent officer would have acted as he did, “if officers of
reasonable competence could disagree on [the lawfulness of the
alleged

conduct],

immunity

should

Briggs, 475 U.S. 335, 341 (1986).
immunity

“provides

ample

be

recognized.”

Malley

v.

Thus, the defense of qualified

protection

to

all

but

incompetent or those who knowingly violate the law.”

the

plainly

Id. at 349.

Here, assuming arguendo that Trooper Walker used unreasonable
force and that the right to be free from such force was clearly
established

at

the

time,

the

relevant

inquiry

for

qualified

immunity purposes is whether a reasonable, similarly situated
officer would have understood Trooper Walker’s conduct to violate
Justiniano’s rights.

Viewing the facts in a light most favorable

to the plaintiff, the court finds that a reasonable officer would
not

have

clearly

unreasonable.

understood

Trooper

Walker’s

conduct

to

be

Even accepting that one reasonably could wonder

whether Justiniano was mentally troubled, a similarly situated
officer would have concluded that Justiniano posed an imminent
threat to Trooper Walker, to himself and to others, and would not
have

readily

understood

Justiniano’s rights.

Trooper

Walker’s

actions

to

violate

Among other things, the encounter took place

on a busy roadway and Justiniano was already acting in an agitated
state when Trooper Walker arrived on scene.

Then, in short order,

Justiniano threatened to kill Trooper Walker, failed to comply
17 

with his commands, continued to advance towards him, positioned
his arms and hands as if he intended to fight, and then charged at
Trooper Walker.

Further, interwoven among these acts, Trooper

Walker employed verbal de-escalation techniques, backed away, used
pepper spray and called for backup.

The tragic way in which the

encounter ended tempts one to engage in wishful hindsight but the
record compels this court to conclude that no reasonable officer
standing in Trooper Walker’s position would have understood that
shooting

at

Justiniano

in

that

context

clearly

violated

Justiniano’s constitutional rights.
Accordingly, even assuming Justiniano’s rights were violated,
the violation was not obvious to a reasonable officer and qualified
immunity therefore would shield Trooper Walker from liability.
See Holloman v. Markowski, 661 Fed. Appx. 797, 801 (4th Cir.
2016)(officer entitled to qualified immunity after using deadly
force on unarmed but physically resistant individual who had
destroyed property and attacked police officers); S.B. v. Cnty of
San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017)(officer entitled to
qualified immunity after shooting mentally ill and intoxicated man
who held a knife and failed to comply with officer’s orders); Vos
v.

City

of

Newport

Beach,

892

F.3d

1024,

1029

(9th

Cir.

2018)(officers entitled to qualified immunity for using deadly
force on mentally ill and intoxicated man who charged officers
with scissors raised).
18 

Summary judgment therefore will be granted on Count I.
C. Count II- Statutory Wrongful Death Claim
As noted above, Count II purports to allege a Fourteenth
Amendment section 1983 claim for excessive force as well as a
wrongful death claim pursuant to M.G.L. c. 229, § 2. Neither claim
has merit here.
The Fourteenth Amendment section 1983 claim has no force
because a claim of excessive force arising from a police encounter
is

analyzed

Graham,

under

the

Fourth

Amendment,

not

the

Fourteenth.

490 U.S. at 395 (“[a]ll claims that law enforcement

officers have used excessive force-deadly or not- in the course of
an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should

be

analyzed

under

the

Fourth

Amendment

and

its

‘reasonableness standard’, rather than under a ‘substantive due
process’ approach’.”)
It is also not necessary to tarry long on Count II’s wrongful
death claim.

Under M.G.L. c. 229, § 2, a person may be liable for

the death of another if the death is caused by the person’s
negligence or a willful, wanton or reckless act.

The plaintiff

agreed at the hearing on the motion for summary judgment that his
wrongful death claim is derivative of his excessive force claim in
Count I, that is, it lives or dies depending on the outcome of
Count I.

In that vein, the plaintiff notes in his brief that

Counts I and II both relate to “the constitutionality of the force
19 

used.”

As the court has found in evaluating the excessive force

claim in Count I that Trooper Walker did not use unreasonable force
or violate the plaintiff’s constitutional rights, that finding
undermines the plaintiff’s theory of liability underlying Count
II.

It follows that Count II fails and that Trooper Walker is

entitled to summary judgment on count II.
IV.

CONCLUSION

For the foregoing reasons, the Defendant’s Motion for Summary
Judgment (Dkt. No. 58) is GRANTED.
SO ORDERED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.

DATED:

September 30, 2018

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