Wynn v. Schmidt et al

Filing 50

Judge Richard G. Stearns: ENDORSED ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS Action on motion: ; adopting Report and Recommendations re 48 Report and Recommendations.; granting 33 Motion for Summary JudgmentFor the foregoing rea sons, the Recommendation is ADOPTED, the motion for summary judgement is ALLOWED, and the Complaint is DISMISSED with prejudice. The Clerk will enter a judgment with prejudice for defendants and close the case. (Attachments: # 1 Report and Recommendations)(Caruso, Stephanie)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL WYNN,
Plaintiff,
v.
HARRISON SCHMIDT, and
GREGORY LENNON, in their
individual capacities,
Defendants.

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CIVIL ACTION
NO. 16-10190-RGS

REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
September 5, 2017
DEIN, U.S.M.J.
I. INTRODUCTION
This is an action for malicious prosecution and intentional infliction of emotional distress
brought against two Cohasset police officers in their individual capacities. On March 26, 2015,
the plaintiff, Michael Wynn, a registered sex offender, was arrested by the defendants, Harrison
Schmidt and Gregory Lennon, following a report that a man in Cohasset had attempted to
entice a 10 year old girl into his car by offering her a ride. Wynn remained in custody for 21
days until the Commonwealth filed a nolle prosequi and the charges against him were
dismissed. Wynn concedes that the police had probable cause for his arrest, and that the arrest
warrant was properly issued. Nevertheless, Wynn claims that his constitutional and state law
rights were violated because the police allowed the investigation and case to continue after

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obtaining GPS data from a court-ordered electronic monitor that established that Wynn was
elsewhere at the relevant time.
In his Complaint (“Compl.”), Wynn has alleged a claim under 42 U.S.C. § 1983 based on
malicious prosecution (Count I) and state law claims of malicious prosecution and intentional
infliction of emotional distress (Counts II and III, respectively). This matter is presently before
the court on Defendants’ Motion for Summary Judgment (Docket No. 33), pursuant to which
the defendants are seeking the dismissal of all the claims brought against them. The
defendants contend that these claims fail both on the merits, and because the defendants are
entitled to qualified immunity.
After consideration of the record and the oral argument of counsel, this court
recommends to the District Judge to whom this case is assigned that the motion for summary
judgment be ALLOWED. Even accepting Wynn’s version of events as true, he has failed to
establish a violation of his constitutional rights. Moreover, the defendants are entitled to
qualified immunity since there is no evidence that the police officers should have known that
they were precluded from questioning the veracity of GPS data (assuming that they were not,
in fact, entitled to do so). Finally, the undisputed facts establish that Wynn’s state law claims of
malicious prosecution and intentional infliction of emotional distress fail on the merits.

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II. STATEMENT OF FACTS1
The plaintiff, Michael Wynn, is a resident of North Attleboro, Massachusetts. DF ¶ 1. At
all relevant times, defendant Harrison Schmidt was a Detective for the Cohasset Police
Department, and defendant Gregory Lennon was a Detective Lieutenant for the Cohasset Police
Department. DF ¶¶ 2-3.
The Incident
On Thursday, March 26, 2015, Officer James McLean of the Cohasset Police Department
took a walk-in report of suspicious activity from a 10 year old girl and her mother. See DF ¶¶
10-11; Defs. Ex. 10 at 9/59. As Officer McLean wrote in his report, the girl stated that she was
walking home from the school bus stop, and that when she was in front of her residence on Hill
Street, “a salmon colored BMW pulled up next to her. The driver opened up the passenger’s
door and stated, ‘You need a ride sweetheart’?” Defs. Ex. 10 at 9/59. The girl shut the car
door, ran home and called her mother, who was on her way home from work. Id. As Officer
McLean reported further:
[The girl] described the BMW as an older model with round headlights.
The passenger’s side headlight lens was broken and there was a scratch on
the passenger’s door under the door handle. She noticed that the vehicle
had Massachusetts license plates, however she was unable to read the
registration. She said the interior of the vehicle was clean and that there
was a gold iPhone 6 on the passenger’s seat. [The girl] described the driver
as a white male, middle aged with brown hair and unshaven. He had a slim
build and she believed he was tall because his head was almost touching
the roof of the vehicle. His voice was normal pitched and he spoke with no
accent. He was wearing black clothing and a black watch cap.
1

Unless otherwise indicated, the facts are derived from the Defendants’ Statement of Undisputed
Material Facts (“DF”) and exhibits thereto (“Defs. Ex.”) (Docket No. 34); Plaintiff’s Response to
Defendants’ Statement of Undisputed Material Facts (“PR”) (Docket No. 41); Plaintiff’s Statement of
Facts (“PF”) (Docket No. 40); and Plaintiff’s Exhibits (“Pl. Ex.”) attached to the Declaration of Drew
Glassroth (Docket No. 42). The defendants did not file a response to the plaintiff’s statement of facts.

[3]

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Id. Officer McLean suggested that the girl look on-line when she got home to see if she could
further identify the vehicle. Id. The girl’s mother called back later and said that the girl was
sure that the car had a Honda emblem, and that the color of the vehicle was Island Coral. Id.;
DF ¶ 19; PR ¶ 19.
The Superintendent of Schools sent an email message to parents regarding the
description of the man who had approached the girl. DF ¶ 26. A resident of a nearby street
called the police and said that the description of the man and the vehicle was consistent with
the man who delivered the Patriot Ledger newspapers in the neighborhood, usually between 2
and 3 p.m. every day. PR ¶ 26; Pl. Ex. 12. The resident also reported that she had spoken to
the deliveryman in the past, and that he was “socially off.” Pl. Ex. 12. This information was
conveyed to Det. Lt. Lennon. Id.
The Identification of Wynn
Det. Schmidt coordinated with the Patriot Ledger staff in order to identify the driver. DF
¶ 29. Det. Schmidt learned from the plaintiff’s supervisor that Wynn was the only delivery
driver for Cohasset at the time, Wynn drove a red Chevrolet compact, possibly an Aveo, Wynn
had been working the Cohasset route for six months to one year, and his daily routine began at
11:00 a.m. DF ¶ 30. Det. Schmidt then checked the Massachusetts Sex Offender Registry,
which appeared to disclose that Wynn was a registered sex offender with convictions for
possession of child pornography in Massachusetts, and rape of a child and enticement of a child
in Connecticut. DF ¶ 31; PR ¶ 31.2

2

The defendant officers subsequently learned that Wynn had not been charged with or convicted of
rape, rather there was a transcription error in the Massachusetts translation of the relevant Connecticut

[4]

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The police investigation continued. It appeared that Wynn had not registered his place
of work, the Town of Cohasset, with the North Attleboro Police Department and Sex Offender
Registry Board, as required by law. DF ¶ 33.3 A check of the Massachusetts Registry of Motor
Vehicles records disclosed that Wynn lived in North Attleboro, and that he owned a red 2012
Chevrolet Sonic. DF ¶ 34.
Det. Schmidt then applied to a clerk-magistrate, and obtained a temporary arrest
warrant for Wynn. DF ¶¶ 35, 38. The alleged crimes were failure to register as a sex offender
and enticing a child under the age of 16. Defs. Ex. 10 at 5/59. Officer McLean’s report
regarding his conversations with the girl and her mother (described above) was attached as an
exhibit to Det. Schmidt’s arrest warrant affidavit. Id. at 9/59. However, in his affidavit, Det.
Schmidt stated that the man who spoke with the girl had been in a “red car.” Id. at 6/59, ¶ 7.
There is no reference in the affidavit to the fact that the girl had identified the car as a Honda
(or BMW), or that she had identified the color as Island Coral, not red. Id. at 5-7/59.
Nevertheless, Wynn concedes that there was probable cause for the arrest warrant to issue.
See Pl. Mem. (Docket No. 39) at 1 (“Mr. Wynn does not challenge his arrest[.]”).
The warrant was executed on Friday March 27, 2015, and Wynn was arrested at
approximately 9:40 p.m. that evening. PF ¶ 11. After being advised of his legal rights, Wynn
elected to make a statement. DF ¶¶ 40-41. Wynn admitted to Det. Lt. Lennon and Det.

records. PR ¶ 32. It appears, however, that they did not learn this until after Wynn’s arraignment. See
Def. Ex. 13 at Bates No. 000075 (text exchange between police awaiting the arraignment reflects that
the “ADA asked if we could try to get reports from the child porn and rape incidents on his III…”).
3

As detailed below, this, too, was subsequently found to be false as Wynn had, in fact, properly
registered.

[5]

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Schmidt that he was sexually attracted to post-pubescent children, but denied that he stopped
near or approached a female child in the vicinity of Hill Street on March 26, 2015. DF ¶ 42. He
admitted to working for the Patriot Ledger and to delivering newspapers to customers on Hill
Street and in the surrounding areas. DF ¶ 43. At the time the arrest warrant was sought and
obtained, the officers were not aware that Wynn was wearing a GPS bracelet as a condition of
his probation. DF ¶ 44. However, they learned this fact during the course of Wynn’s booking
and arrest. PF ¶ 12.
On Saturday morning, Det. Lt. Lennon was notified by the North Attleboro Police
Department that Wynn had, in fact, properly registered his place of employment in Cohasset,
but that the North Attleboro Police Department had mistakenly failed to report this
information. DF ¶ 48; PF ¶ 18. As a result, Det. Lt. Lennon understood that there was no longer
probable cause to hold Wynn for a charge of failing to register as a sex offender. PF ¶ 19. The
only basis to hold him was the charge of enticement of a minor. Id.
Later in the evening of Saturday, March 28, 2015, Det. Harrison and Det. Lt. Lennon met
the girl and her father in North Attleboro for the stated purpose of looking at a parked vehicle
to see if she could identify it. PF ¶ 20; DF ¶ 49; Defs. Ex. 10 at 22/59. The girl was shown
Wynn’s red car, which she identified as being the car involved in the incident. Defs. Ex. 10 at
22/59. The girl noted a scratch on the car and a broken portion of the bottom part of the
vehicle’s grill, which she stated she had observed when the vehicle had approached her. Id.
The girl was questioned about the fact that she had reported that a headlight was broken, yet
none of the headlights on Wynn’s car were, in fact, broken. Id. The girl said that from the angle
at which she had observed the car, the round headlight had appeared cracked to her. Id. The
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girl also had reported that the car was clean, while Wynn’s car was messy and had a number of
items related to delivering newspapers strewn about the car, including a postal bin in the
footwell of the front passenger seat. PF ¶ 22. However, the victim was not asked about this
discrepancy. Id. She was, however, asked how sure she was about the identification, to which
she responded, ”I’m sure” that it was the vehicle. Defs. Ex. 10 at 22/59.
Later that evening, the girl was shown a photo array by a Hingham Police Officer. DF ¶
53. The girl did not identify Wynn. Id.; PR ¶ 53.
At some point thereafter, either on either Saturday, March 28, or Sunday, March 29,
2015, the officers obtained phone records from the girl’s parents. DF ¶ 54; PR ¶ 54. These
records limited the relevant time period to between 3:00 and 3:10 p.m. on Thursday, March
26th. PR ¶ 54.
On Sunday, March 29, 2015, Det. Schmidt obtained the GPS information for Wynn’s
whereabouts for the period March 26-28, 2015 from the Massachusetts Probation Department
Electronic Monitoring Office (“ELMO”). DF ¶ 46; Defs. Ex. 10 at 37/59; PF ¶ 26. This
information consisted of screen shots identifying Wynn’s whereabouts. Pl. Ex. 25. The screen
shots did not place Wynn on Hill Street at the relevant time. Id.
The Arraignment
Wynn was brought to court to be arraigned on March 30, 2015. PF ¶ 42. The Cohasset
police prosecutor, Officer Daniel Williams was there, as was Assistant District Attorney Sarah
Lelle. Id.; PF ¶¶ 46, 48. Wynn was represented by an attorney. PF ¶ 55. Neither of the
defendants were present, although Det. Lt. Lennon was in communication with Officer Williams
by text. PF ¶¶ 49, 50. Officer Williams filled out an application for a criminal complaint, and a
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complaint was issued charging Wynn with enticing a child under 16 and accosting/annoying a
person of the opposite sex. See Pl. Exs. 37, 33.4
It is undisputed that the defendants had seen the GPS results prior to the arraignment,
and knew that the GPS did not put Wynn in front of 27 Hill Street in Cohasset at the relevant
time. See DF ¶ 60. It is also undisputed that the police had discussed this finding with the
District Attorney’s Office prior to the arraignment, but had also expressed the opinion that the
prosecution should continue because they had some questions about the accuracy of the GPS
data. See PF ¶¶ 48-49, 55; PR ¶¶ 60-61, 64-68; see also Pl. Mem. (Docket No. 39) at 6 (“Officer
Williams met with someone in the District Attorney’s office before Mr. Wynn’s arraignment to
discuss the case.”) The parties disagree as to whether ADA Lelle in particular knew about the
GPS data prior to the arraignment, although it is clear that she knew about it shortly thereafter.
See DF ¶¶ 61, 63-65; PR ¶¶ 61, 63-64. Similarly, while defense counsel did not have the actual
screen shots prior to the arraignment, she also had the data by the next day at the latest. DF ¶
69. The record is also unclear as to whether the GPS data was present in the courtroom. In
particular, Det. Schmidt had written a report which purported to attach the GPS data. Pl. Ex.
23. The report contained no description of the data, it merely stated that the data was
attached. Id. The plaintiff contends that the data was not, in fact, attached to the report that
was brought to court, and was not provided to ADA Lelle, the court or defense counsel prior to
the arraignment. See PF ¶¶ 37-39. It is Wynn’s contention that the police should not have

4

There is no evidence in the record that indicates that the facts underlying the complaint application
were reviewed by any judicial officer before the complaint issued.

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continued to prosecute Wynn once they had the GPS data, and that any concerns about the
accuracy of the data were unfounded and unsupportable.
The parties rely on a text message exchange that occurred just prior to Wynn’s
arraignment between Det. Lt. Lennon (who was not in court), and the Cohasset police
prosecutor, Officer Dan Williams (who was in court). See DF ¶¶ 59-60. As they wrote:
[time stamp Mon. Mar 30, 11:19 AM]
Lennon:

Dan, [Cohasset Officer Michael Lopes] is calling me about GPS data.
Do you know why DA is calling him?

Williams: They were having trouble viewing the GPS logs I couldn’t really
answer their questions so I asked Harrison to give them a call.
Lennon:

Ok, they’re calling Lopes now and he’s calling me. I was curious
how he got involved. According to the GPS data, Wynn was in
Cohasset but was not in front of 27 Hill St. Cohasset, at the time
alleged – 3:00 – 3:10 P.M.

Williams: Yeah that’s what I told them
Williams: Not sure what their issue is
Lennon:

Lennon:

Ok. With regard to the accuracy of the GPS, the State of California
found reported locations were off by as much as three miles with
3M’s devices and declared 3M’s devices so faulty that the state
rejected the company’s bid
(http://articles.latimes.com/2013/mar/30/local/la-me-ff-gpsmonitors-20130331) so I wouldn’t automatically assume that this
product is 100% accurate because it has been proven not to be. Pls
pass that along.
Are you still at court?

Williams: Yes
Williams: I passed that info along to the ADA
Lennon:

Ok thx. As I mentioned, I’d prefer they not dismiss it outright today

Williams: ADA is telling me Patriot ledger is reporting he wasn’t wearing his
GPS bracelet when arrested is that true?
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Lennon:

That’s not true

Williams: Okay
Williams: ADA asked if we could try to get reports from the child porn and
rape incidents on his III… Do you want me to handle that?
Lennon:

I have them. I’ll email to you in a minute.

Williams: Ok great thanks
Lennon:

Sent

Williams: Got it thanks
Lennon:

Any decisions made yet on him?

Williams: Note (sic) they were waiting for defense attorney to arrive
Lennon:

Ok. Let me know. Thx

Defs. Ex. 13 at Bates Nos. 000073-76; see also DF ¶¶ 59-60. When counsel arrived, Williams
was arraigned and a Dangerousness Hearing was scheduled for later that week, on April 2,
2015. DF ¶ 62.
Det. Lt. Lennon had spoken to Wynn’s probation officer, Virginia Allen, on Sunday,
before the arraignment, and they continued their conversation by email the day of the
arraignment and thereafter. PR ¶ 71. In those communications, the probation officer
confirmed that Wynn had not been convicted of rape in Connecticut, see note 2, supra, and
that Wynn had, in fact, properly registered as a sex offender. Pl. Ex. 26 at 2/12. In their (at
times testy) communications, Det. Lt. Lennon repeatedly expressed his concern about the
accuracy of the GPS monitoring report, and the probation officer repeatedly took the position
that the GPS information was accurate, and used in court all the time to both exonerate and
convict people. See Pl. Ex. 26. Det. Lt. Lennon’s concern was based on his own internet
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research, which consisted of a general “Google” search that revealed the California article he
had sent to Officer Williams in the text exchange quoted above. See PR ¶¶ 74, 76. According
to that article, written in 2013, officials in California had identified problems with the GPS
tracking device, including a failure to trigger tampering alerts and errors with the accuracy of
reported locations. PF ¶ 30; Pl. Ex. 31 (article entitled “Tests found major flaws in parolee GPS
monitoring devices”). According to the plaintiff, Det. Lt. Lennon did not take any steps to
determine whether there were inaccuracies with the GPS devices used in Massachusetts, or
whether the device discussed in the California article was the same product that Wynn wore.
See PR ¶¶ 75-76.5 Nevertheless, despite the probation officer’s insistence on the accuracy of
the GPS monitor, Det. Lt. Lennon did not concede the point and wrote to her, “With regard to
the accuracy of the GPS, that issue will have to be resolved by the court.” Pl. Ex. 26 at 1/12.
Post Arraignment Events
ADA Lelle sent Wynn’s attorney the GPS screenshots the day after the arraignment, on
March 31, 2015. Pl. Ex. 30 (Fournier Aff.) at ¶ 10. There is no evidence that defense counsel
took any steps to have Wynn released based on that data. Nevertheless, after the arraignment,
ADA Lelle continued to pursue information about the accuracy of the GPS data. See PR ¶ 84.
Det. Schmidt allegedly told ADA Lelle that “people from the Cohasset Police Department”
thought that the GPS data was inaccurate. PR ¶¶ 80-81. According to the plaintiff, ADA Lelle

5

The parties dispute whether there is evidence that a GPS is not always accurate. Thus, the defendants
cite to concerns expressed by others, including a judge, as to a GPS’ reliability, while the plaintiff argues
that while there are locations where a GPS may not have reception, there is no evidence that location
data that is actually recorded is unreliable. See, e.g., DF ¶¶ 78-79; PR ¶¶ 78-79. The parties agree,
however, that the defendants did not have any other support for their concern other than the California
article.

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had no independent concerns about the accuracy of the GPS, and she only questioned the GPS
data due to Det. Schmidt’s repeated warning that the data was inaccurate. See PR ¶ 81. It is
undisputed that in light of the uncertainty of the situation, ADA Lelle decided to withdraw the
Commonwealth’s motion for a dangerousness hearing while the investigation continued. DF ¶
81; PR ¶¶ 81-82.
ADA Lelle tried to set up a meeting with the operators of the ELMO GPS system. See DF
¶ 84. In addition, the DA’s office set up a SAIN (Sexual Assault Intervention Network) interview,
with the victim on April 7, 2015. DF ¶¶ 85, 88. At the interview, the victim described the male
as operating a small red sedan, and stated that he had dark gray hair and a beard which was
lighter gray in the front and around the chin and dark on the sides near the sideburns. DF ¶ 89;
PR ¶ 89; Defs. Ex. 16. She also described the man as wearing a dark, long sleeve shirt and black
pants. Defs. Ex. 16. She now described the iPhone as gray and not gold. Id.
Following the interview the defendants obtained a search warrant to search Wynn’s
apartment. DF ¶ 91; PR ¶ 91. They were searching for a gold iPhone, a watch cap and dark
clothing that the victim had described in her interviews. See DF ¶ 92. The landlord had
removed Wynn’s possessions from the apartment after learning of the arrest, and given them
to Wynn’s aunt, who allowed the police to search Wynn’s belongings. DF ¶ 94; PR ¶ 94. A
watch cap was seized, but the other subject items of the search were not found. DF ¶ 94.
The defendants and another ADA, Anne Yas, met with someone from the ELMO GPS
program at the Canton Police Department so that they could see the monitoring program live,
as opposed to just the screen shots. DF ¶ 97. The GPS data showed that Wynn had stopped in
the area of the Fiori’s Gulf Station on Chief Justice Cushing Highway at the relevant time. DF
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¶¶ 98-99. On April 8, 2015, Det. Schmidt went to the Gulf Station and viewed the video data
from that location. DF ¶¶ 100, 102. He also verified the time stamp on the store’s video
recording. DF ¶ 101. Based on this view, Det. Schmidt determined that Wynn was at the store
at the relevant time, and that Wynn was not the person who had approached the victim. Defs.
Ex. 18; DF ¶ 102. On the same day, ADA Lelle filed a Pre-trial Probation form with the District
Court in Wynn’s criminal matter requesting that Wynn be released on probation with special
conditions. DF ¶ 103.
On April 14, 2015, ADA Lelle filed an entry of Nolle Prosequi in Wynn’s case. PR ¶ 106.6
Therein the Commonwealth reported that since the arraignment, “the investigation has
continued regarding whether the defendant was at a different location at the reported time of
the incident.” Defs. Ex. 15. As the Commonwealth wrote further:
GPS records obtained in the course of the investigation do not place the
Defendant in the location. Additionally, there have been conflicts in the
identification of the defendant as well as regarding clothing and the motor
vehicle used in connection with the crime.
Therefore the District Attorney’s Office is unable to proceed with this case,
at this time. Wherefore, the Commonwealth respectfully submits this
Nolle Prosequi in the interest of justice.
Id. Wynn was not released on April 14th because the charges had triggered a probation
violation. PF ¶ 65. Wynn was held in custody until April 17, 2015, when the probation violation
was withdrawn. Id.
Additional facts will be provided below where appropriate.

6

The delay in filing the nolle prosequi is not explained in the record, but it is not attributed to any
actions on the part of the defendants.

[13]

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III. ANALYSIS
A.

Standard of Review – Summary Judgment

“The role of summary judgment is ‘to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.’” PC Interiors, Ltd. v. J. Tucci Constr. Co.,
794 F. Supp. 2d 274, 275 (D. Mass. 2011) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991)) (additional citation omitted). The burden is upon the moving party to show,
based upon the discovery and disclosed materials on file, and any affidavits, “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor of
either party.’” Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (quoting Garside v. Osco
Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). “A fact is ‘material’ only if it possesses the capacity
to sway the outcome of the litigation under the applicable law.” Id. (quotations, punctuation
and citations omitted).
“Once the moving party has satisfied its burden, the burden shifts to the non-moving
party to set forth specific facts showing that there is a genuine, triable issue.” PC Interiors, Ltd.,
794 F. Supp. 2d at 275. The opposing party can avoid summary judgment only by providing
properly supported evidence of disputed material facts. LeBlanc v. Great Am. Ins. Co., 6 F.3d
836, 841-42 (1st Cir. 1993). Accordingly, “the nonmoving party ‘may not rest upon mere
allegation or denials of his pleading[,]’” but must set forth specific facts showing that there is a
genuine issue for trial. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct.
2505, 2514, 91 L. Ed. 2d 202 (1986)). The court affords “no evidentiary weight to conclusory
allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is
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less than significantly probative.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters at
Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (internal quotation marks and citation
omitted). Rather, “[w]here, as here, the nonmovant bears the burden of proof on the dispositive issue, it must point to ‘competent evidence’ and ‘specific facts’ to stave off summary
judgment.” Id. (citation omitted).
Applying these principles to the instant case compels the conclusion that the
defendants’ motion for summary judgment must be allowed.
B.

Standard of Review - Qualified Immunity

“Qualified immunity, which is a question of law, is an issue that is appropriately decided
by the court during the early stages of the proceedings[.]” Tatro v. Kervin, 41 F.3d 9, 15 (1st Cir.
1994). See also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed.2d 411
(1985) (recognizing that issue of qualified immunity may be appropriately decided at the
summary judgment stage to avoid subjecting government officials to the costs and burdens of
trial). In the instant case, the plaintiff contends that the defendant officers should have
stopped the criminal proceedings upon obtaining the GPS data that showed that Wynn was not
on Hill Street at the time of the incident. The defendants contend that even if their decision to
proceed was in error, which they do not concede, they are entitled to qualified immunity. As
detailed below, this court agrees.
“Qualified immunity ‘gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.’” Lane v. Franks, 134 S. Ct. 2369, 2381, 189 L.
Ed. 2d 312 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 2084-85, 179
L. Ed. 2d 1149 (2011)). It “is a prophylactic doctrine” that “shields government officials ‘from
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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.’” Morse v. Cloutier, -- F.3d ---, Nos. 15-2043, 15-2053, 2017 WL 3667648, at *4 (1st Cir. Aug. 25, 2017) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed.2d 396 (1982)).
“[Q]ualified immunity gives an officer the benefit of a margin of error.” Morelli v. Webster, 552
F. 3d 12, 24 (1st Cir. 2009). “When properly applied,” the doctrine of qualified immunity
protects “‘all but the plainly incompetent or those who knowingly violate the law.’” Morse,
2017 WL 3667648, at *4 (quoting White v. Pauly, 137 S. Ct. 548, 551, 196 L. Ed.2d 463 (2017)
(per curiam) (additional citations omitted)).
In order “to determine whether qualified immunity applies in a given case, [the court]
must determine: (1) whether a public official has violated a plaintiff’s constitutionally protected
right; and (2) whether the particular right that the official has violated was clearly established at
the time of the violation.” Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010) (citing Estrada v.
Rhode Island, 594 F.3d 56, 62-63 (1st Cir. 2010)). “These two prongs of the analysis need not be
considered in any particular order, and both prongs must be satisfied for a plaintiff to overcome
a qualified immunity defense.” Id. (citing Maldonado v. Fontanes, 568 F.3d 263, 269-70 (1st Cir.
2009)). See also Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017) (court may proceed directly to
the second step and defer an analysis of the first step if more efficient).
As the First Circuit has explained further:
The second step of this inquiry is itself divisible into two sub-parts. First, the
plaintiff must identify either “controlling authority” or a “consensus of cases of
persuasive authority” sufficient to signal to a reasonable officer that particular
conduct would violate a constitutional right. Wilson v. Layne, 526 U.S. 603, 617,
119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). This inquiry “must be undertaken in light
of the specific context of the case, not as a broad general proposition.” Brosseau
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v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)
(quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001)). The aim is to ensure that the state of the law is sufficiently specific to
give fair and clear warning to government officials. See United States v. Lanier,
520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). The second subpart asks whether a reasonable officer in the defendant's position would have
known that his conduct violated the established rule. See Wilson v. City of
Boston, 421 F.3d 45, 57-58 (1st Cir. 2005).
Morse, 2017 WL 3667648, at *4. Finally, “[i]n conducting the whole analysis, [the court] must
take care ‘to avoid the chilling effect of second-guessing where the officer, acting in the heat of
events, made a defensible (albeit imperfect) judgment.’” Raiche, 623 F.3d at 36 (quoting
Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010)). As detailed herein, this court finds that
Wynn has failed to meet the requirements of either prong of the analysis.
C.

The Alleged Constitutional Violation

Wynn has brought a claim under 42 U.S.C. § 1983 alleging a violation of his Fourth
Amendment rights based on a claim of malicious prosecution. In Hernandez-Cuevas v. Taylor,
723 F.3d 91 (1st Cir. 2013) (“Hernandez-Cuevas I”), the First Circuit expressly recognized for the
first time “that the Fourth Amendment encompasses a malicious prosecution claim.” See Id. at
97, 99-100 (1st Cir. 2013). Thus, “the Fourth Amendment protection against seizure but upon
probable cause does not end when an arrestee becomes held pursuant to legal process.” Id. at
99-100. As the Court explained:
Though the Fifth and Sixth Amendments generally control events following the
arrest and arraignment of an individual accused of committing a crime, we are
convinced that an individual does not lose his Fourth Amendment right to be
free from unreasonable seizure when he becomes detained pursuant to judicial
process. Certainly, in most cases, the neutral magistrate's determination that
probable cause exists for the individual's arrest is an intervening act that could
disrupt any argument that the defendant officer had caused the continued
unlawful seizure. See Sanchez v. Pereira–Castillo, 590 F.3d 31, 50 (1st Cir.2009)
(“We employ common law tort principles when conducting ‘inquiries into
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causation under § 1983.’ ” (quoting Gutierrez–Rodriguez v. Cartagena, 882 F.2d
553, 561 (1st Cir.1989))). But, if a plaintiff can overcome this causation problem
and demonstrate that law enforcement officers were responsible for his
continued, unreasonable pretrial detention, the plaintiff has stated a
constitutional injury that may be vindicated through a § 1983 action. See Evans,
703 F.3d at 647 (“[E]ven where ... a prosecutor retains all discretion to seek an
indictment, police officers may have caused the seizure and remain liable to a
wrongfully indicted defendant[.]”). For example, officers may be liable for
unlawful pretrial detention when they have (1) “lied to or misled the
prosecutors”; (2) “failed to disclose exculpatory evidence”; or (3) “unduly
pressured the prosecutor to seek the indictment.” Id. at 647–48; see also Sykes,
625 F.3d at 308–309 (requiring plaintiff to demonstrate that the defendant
officer “made, influenced, or participated in the decision to prosecute” (quoting
Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.2007)) (internal quotation marks and
alterations omitted)).
Hernandez-Cuevas I, 723 F.3d at 100 (emphasis added). For the reasons detailed herein, this
court finds that Wynn has failed to establish a violation of his Fourth Amendment rights.
Significance of Magistrate’s Determination
As an initial matter, the defendants argue that the fact that there was probable cause
for Wynn’s arrest precludes the claim against them, since the magistrate’s issuance of the
arrest warrant was “an intervening act” that negates the argument that “the defendant officers
[had] caused the continued unlawful seizure.” Id.; Defs. Mem. (Docket No. 35) at 4. Moreover,
according to the defendants, having established probable cause for the arrest, they had no
obligation to continue their investigation. Id. at 4-5. See Holder v. Town of Sandown, 585 F.3d
500, 505 (1st Cir. 2009) (“We have made it clear that an officer normally may terminate his
investigation when he accumulates facts that demonstrate sufficient probable cause.”) (internal
punctuation and citation omitted).
For his part, Wynn points to the fact that the police obtained a criminal complaint
against him after learning that the GPS data did not put him at the scene of the incident at the

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relevant time. See Pl. Mem. (Docket No. 39) at 14. While there is no evidence in the record
that the issuance of a criminal complaint involved a new assessment of probable cause by a
judicial officer, it is clear from the record that the police had control over whether to seek a
complaint and pursue the claims against Wynn even after his arrest. For example, the police
did not seek a complaint against him for failing to register as a sex offender, although that was
a charge stated in the original arrest affidavit and warrant. “Pretrial detention can violate the
Fourth Amendment not only when it precedes, but also when it follows, the start of legal
process in a criminal case.” Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 918, 197 L. Ed.2d 312
(2017). Moreover, “[p]robable cause to arrest does not suspend an officer’s continuing
obligation to act ‘reasonably’” and he may not “close his eyes to all subsequent developments.”
Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986). The issue in this case “is whether the
defendants had probable cause to initiate the criminal charge against [Wynn], not whether they
had probable cause to arrest him.” Meehan v. Town of Plymouth, 167 F.3d 85, 89 (1st Cir.
1999). Therefore, this court concludes that the issuance of the arrest warrant does not shield
the defendants from potential liability.
Elements of a § 1983 Malicious Prosecution Claim7
In order to establish his claim of malicious prosecution under § 1983, Wynn must
establish that the police (1) caused (2) his seizure pursuant to legal process unsupported by
probable cause, and (3) the criminal proceedings terminated in his favor. Hernandez-Cuevas I,
723 F.3d at 101. For the reasons detailed herein, although this court has found that the

7

As detailed infra, a § 1983 claim based on malicious prosecution differs from the state law claim in that
the constitutional claim does not expressly require malice. See Hernandez-Cuevas I, 723 F.3d at 99-101
(discussing differences).

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issuance of the arrest warrant does not preclude a finding that the officers caused Wynn’s
continued detention, this court finds that Wynn has failed to otherwise establish either
causation, or that he was detained without probable cause.8
Causation
“To satisfy the first element, causation, [Wynn is] required to demonstrate that law
enforcement officers were responsible for his continued, unreasonable pretrial detention.”
Hernandez-Cuevas v. Taylor, 836 F.3d 116, 125 (1st Cir. 2016) (“Hernandez-Cuevas II”)
(punctuation and citation omitted). As Wynn argues:
Detectives Lennon and Schmidt caused Mr. Wynn’s prosecution in two
ways. First, they prepared an intentionally vague police report that omitted any
mention that the GPS did not place Mr. Wynn at the scene. By concealing this
information from the court and Mr. Wynn’s defense attorney, Defendants
ensured that Mr. Wynn would be charged and arraigned. Second, Defendants
repeatedly told prosecutors that Mr. Wynn’s GPS data was inaccurate, despite
having been told by Probation Department officials that this was not true. By
repeating their claim of inaccuracy despite obvious reason to know it was wrong,
Defendants acted with reckless disregard for the truth and caused prosecutors to
continue moving forward with baseless charges against Mr. Wynn.
Pl. Mem. (Docket No. 39) at 9. However, the undisputed facts fail to support Wynn’s claim.
It has “long been clearly established law that the Fourth Amendment prohibits a police
officer from manufacturing probable cause by knowingly including false statements in a
warrant affidavit.” Hernandez-Cuevas I, 723 F.3d at 96. Similarly, it is undeniable that “if any
concept is fundamental to our American system of justice, it is that those charged with
upholding the law are prohibited from deliberately fabricating evidence and framing individuals

8

As detailed infra, even if this court were to find that there are disputed facts which preclude the entry
of summary judgment on the issue of whether there was a constitutional violation, this court would still
find that the defendants are entitled to summary judgment on the basis of qualified immunity.

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for crimes they did not commit.” Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004). Thus, if
the record supported Wynn’s argument that the officers intentionally withheld information
from prosecutors to pursue the claims against Wynn, he might have stated a viable claim. The
problem with Wynn’s argument is that it simply ignores the undisputed fact that the officers
shared the information that the GPS data did not put Wynn at the scene with the District
Attorney’s office before the arraignment. This irrefutable fact negates his theory that the
police were hiding this information. Similarly, the evidence is clear that the police disclosed
these facts to Wynn’s probation officer before the arraignment, and to his attorney by the day
after the arraignment at the latest. The record simply does not support the conclusion that the
police officers lied to or misled the prosecutors, or failed to disclose exculpatory evidence.
Moreover, the fact that ADA Lelle had the GPS data by the day after the arraignment at
the latest, negates Wynn’s contention that the police caused his detention. The District
Attorney’s Office had the authority to nolle prosse the charges against Wynn the day after the
arraignment. Thus, unless the police wrongfully prevented the prosecutor from dismissing the
charges (which they did not, as discussed below), there is no evidence from which a reasonable
jury could conclude that the police caused Wynn’s detention by failing to disclose the GPS data.
The record also does not support Wynn’s contention that the police unduly pressured
the prosecutor by challenging the GPS data without support. Again, Wynn ignores the fact that
Det. Lt. Lennon did, in fact, have an article that called the accuracy of the GPS device into
question. There is no evidence in the record that the defendants lied about the source of their
information, or fabricated evidence about the reliability of GPS devices. While the plaintiff
argues that GPS data is used in courts to convict and exonerate, he certainly does not claim that
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there have never been any challenges to the reliability of GPS data. The plaintiff has not
pointed to any evidence conclusively establishing that in all instances GPS location data is
always accurate. The record does not support Wynn’s argument that it was inappropriate for
the officers to question the GPS data.
Similarly, there is no evidence that the officers put any untoward pressure on the ADA
to accept their concerns about the reliability of the GPS data. In fact, the evidence is that the
District Attorney’s Office was free to disregard the officers’ concerns, and did, in fact, conduct
its own analysis. In addition, the police participated in the continued investigation into the
accuracy of the monitor by going and reviewing the video tapes. Based on the undisputed
facts, no reasonable jury could conclude that the defendants wrongfully caused Wynn’s
detention by lying, misleading or otherwise wrongfully pressuring the prosecutor. See
Hernandez-Cuevas I, 723 F.3d at 100.
Probable Cause
Although a closer question, Wynn’s claim of malicious prosecution must fail for the
additional reason that he cannot establish that there was no probable cause for his detention
before the tapes were located and viewed. The fact that there was exculpatory evidence
weighing in Wynn’s favor does not preclude a finding of probable cause. See Acosta v. Ames
Dep’t Stores, Inc., 386 F.3d 5, 9-10 (1st Cir. 2004). Here there was evidence that Wynn had
previously been convicted of enticement of a child in Connecticut. He admitted to being
familiar with the neighborhood and delivering newspapers there during the general time period
in question. Wynn’s car was positively identified by the victim as being the car driven by the
perpetrator, and discrepancies between her original description and the actual vehicle were
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explained. The officers had evidence that GPS monitors were not always accurate. Under such
circumstances, there was probable cause for Wynn’s continued detention, at least pending
confirmation of the GPS data. See Forest v. Pawtucket Police Dep’t, 377 F.3d 52, 57 (1st Cir.
2004) (“This court has affirmed that police officers can justifiably rely upon the credible
complaint by a victim to support a finding of probable cause.”) (citing B.C.R. Transport Co., Inc.
v. Fontaine, 727 F.2d 7, 10 (1st Cir. 1984) for the proposition that “although not a per se rule, a
probable cause determination predicated on information furnished by the victim is generally
considered reliable”).
This having been said, there is support for the proposition that “[i]n the civil context,
probable cause is a matter for the jury if the facts are disputed.” Gutierrez v. MBTA, 437 Mass.
396, 405 n. 10, 772 N.E.2d 552, 561 n. 10 (2002). See also Lewis v. Kendrick, 944 F.2d 949, 952
(1st Cir. 1991) (in § 1983 case, “a jury could find that to accept a hitherto unknown alleged
victim’s uncorroborated account without question, where there was ample opportunity to
question it, was a circumstance that weighed against probable cause.”). Assuming, arguendo,
that the addition of the GPS data was sufficient to raise a question for the jury, the next inquiry
is whether the defendants are entitled to qualified immunity. See Soto v. Bzdel, 214 F. Supp. 2d
69, 75 (D. Mass. 2002) (even though “a plaintiff may state a constitutional claim if, while a
police officer is making an arrest pursuant to a warrant, the officer fails to release the plaintiff
after the officer receives information upon which to reasonably conclude that the warrant had
been recalled[,]” officers nonetheless are entitled to qualified immunity). As detailed below,
this court finds that the defendants in the instant case are entitled to qualified immunity.
D. The Defendants Are Entitled to Qualified Immunity
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Assuming that Wynn has stated a claim that his constitutional rights were violated, the
court must consider “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
then consider whether in the particular factual context of the case, a reasonable officer would
have understood that his conduct violated the right.” Stamps v. Town of Framingham, 813 F.3d
27, 39 (1st Cir. 2016) (internal quotations and citations omitted). Courts are “not to define
clearly established law at a high level of generality.” Mullenix v. Luna, 136 S. Ct. 305, 308, 193
L. Ed. 2d 255 (2015) (internal quotation and citation omitted). Thus, the “correct inquiry” “is
whether it was clearly established that the Fourth Amendment prohibited the [officers’]
conduct in the situation [they] confronted.” Id. at 309 (internal punctuation and citation
omitted). “Moreover, to prove that an asserted right is ‘clearly established,’ a plaintiff must
cite ‘cases of controlling authority in [his] jurisdiction at the time of the incident which clearly
established the rule on which [he] seek[s] to rely’ or identify ‘a consensus of cases of persuasive
authority such that a reasonable officer could not have believed that his actions were lawful.’”
Soto v. Bzdel, 214 F. Supp. 2d at 75 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692,
1700, 143 L. Ed.2d 818 (1999)). “Simply put, Plaintiff fails to make such a showing here.” Id.
In the instant case, Wynn argues that “[t]he legal issue for purposes of qualified
immunity is whether it was clearly established in March 2015 that police officers violated the
Fourth Amendment by seeking criminal charges without probable cause.” Pl. Mem. (Docket
No. 39) at 16-17. This principle, while true, presents the issue at too high a level of generality.
Rather, the issue is whether a police officer, when faced with GPS data showing that the
suspect was not present at the crime scene, was obligated to accept that information without
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question. Wynn has cited no Supreme Court, First Circuit or Massachusetts cases on point, and
none have been found. He has not established that the defendants should have known that
taking the time to confirm the accuracy of GPS data would have violated Wynn’s Fourth
Amendment rights. See also Mullenix, 136 S. Ct. at 308 (“specificity is especially important in
the Fourth Amendment context, where the Court has recognized that it is sometimes difficult
for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation
the officer confronts.”) (internal quotation and citation omitted). Moreover, in light of the
California article, the evidence does not establish that any reasonable officer, in the
defendants’ position, would have known that their conduct was violating Wynn’s constitutional
rights.
Finally, Wynn’s argument must fail for the additional reason that in the qualified
immunity context, “[o]fficers are entitled to qualified immunity so long as the presence of
probable cause is at least arguable.” Glik v. Cunniffe, 655 F.3d 78, 88 (1st Cir. 2011) (internal
quotation and citation omitted). For the reasons discussed more fully above, the defendants
could reasonably have concluded that there was probable cause for the charges brought
against Wynn even in light of the GPS data. For all these reasons, the defendants are entitled
to qualified immunity.
E.

State Law Claims

The plaintiff has also asserted common law claims for malicious prosecution and
intentional infliction of emotional distress. Assuming the court exercises pendant jurisdiction
over these claims if the federal claim is dismissed, this court finds that these claims also should
be dismissed as they are defeated by the undisputed facts.
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Malicious Prosecution
“The elements of a common-law cause of action for malicious prosecution are ‘(1) the
commencement or continuation of a criminal proceeding against the eventual plaintiff at the
behest of the eventual defendant; (2) the termination of the proceeding in favor of the
accused; (3) an absence of probable cause for the charges; and (4) actual malice.’” Cabot v.
Lewis, No. 13-11903-FDS, 2017 WL 1013742, at *13 (D. Mass. Mar. 15, 2017) (quoting Nieves v.
McSweeney, 241 F.3d 46, 53 (1st Cir. 2001)). For the reasons detailed above, this court finds
that the undisputed facts establish that there was probable cause for the charges brought
against Wynn. Even if the issue of probable cause is left to the jury, however, the plaintiff has
failed to establish that the defendants acted with actual malice. “Wanton or negligent behavior
is insufficient” to establish malice, “without some evidence of an ulterior purpose.” Sklar v.
Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 557, 797 N.E.2d 381, 387 (2003). In
the instant case, the defendants disclosed the GPS data to the District Attorney’s Office prior to
the arraignment, and to the prosecutor and defense attorney a day later, at the latest. The
undisputed facts establish that the police carried out an investigation for the purpose of
locating the individual who tried to entice a minor into his car. They followed leads, obtained
an arrest warrant and search warrant, conducted identification procedures of both Wynn and
his car, and helped obtain the dismissal of the charges when they determined that Wynn was
not the right man. There is no evidence that they acted for any improper purpose.
Intentional Infliction of Emotional Distress
In his final count, Wynn has alleged a claim of intentional infliction of emotional distress.
“The elements of an IIED claim are ‘(i) defendant[s] intended to inflict emotional distress or
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knew or reasonably should have known that emotional distress was likely to result from such
conduct; (ii) the conduct was ‘extreme and outrageous,’ ‘beyond all possible bounds of
decency,’ and ‘utterly intolerable in a civilized community’; (iii) the defendant[s'] conduct
proximately caused plaintiff's emotional distress; and (iv) the distress was so ‘severe that no
reasonable man could be expected to endure it.’” Cabot v. Lewis, 2017 WL 1013742, at *13
(quoting Davignon v. Clemmey, 322 F.3d 1, 8 n.2 (1st Cir. 2003) (additional citations omitted)).
Even assuming, arguendo, that there was no probable cause for Wynn’s continued detention,
his “IIED claim would still fail because the facts as alleged are not sufficiently outrageous to
support such a cause of action.” Godette v. Stanley, 490 F. Supp. 2d 72, 81 (D. Mass. 2007).
There is simply no comparison between the facts of this case and of Limone v. U.S., 579 F.3d 79
(1st Cir. 2009) on which the plaintiff relies. In Limone, the court found that “FBI agents
knowingly participated in the events leading to the wrongful indictment, prosecution,
conviction, and continued incarceration of the scapegoats” and engaged in “egregious
governmental misconduct[.]” Id. at 94, 83. No such extreme behavior occurred in the instant
case.
IV. CONCLUSION
This court in no way intends to minimize the harm caused to Mr. Wynn, who was
incarcerated for 21 days for a crime that he did not commit. Nevertheless, a careful review of
the record in this case establishes that his constitutional rights were not violated, and/or the
defendants are entitled to qualified immunity. Moreover, Mr. Wynn’s state law claims fail on
the merits.

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For all the reasons detailed herein, this court recommends to the District Judge to
whom this case is assigned that Defendants’ Motion for Summary Judgment (Docket No. 33) be
ALLOWED.9
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

9

The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72 any party who objects to
these proposed findings and recommendations must file a written objection thereto with the Clerk of
this Court within 14 days of the party’s receipt of this Report and Recommendation. The written
objections must specifically identify the portion of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The parties are further advised that the
United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this
Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d
271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart,
Inc. v. Ford Motor Co., 616 F.2d 603, 604-05 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79
(1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140,
153-54, 106 S. Ct. 466, 474, 88 L. Ed. 2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199
F.3d 1, 3-4 (1st Cir. 1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); Santiago v.
Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).

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