Harper v. Massachusetts State Police et al

Filing 76

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, defendants motion for summary judgment (Docket No. 56 ) is DENIED. So ordered. (Vieira, Leonardo)

Case 1:17-cv-10252-NMG Document 76 Filed 05/23/19 Page 1 of 11

United States District Court
District of Massachusetts

Mark Harper,
Plaintiff,
v.
Christopher Booth,
Defendant.

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Civil Action No.
17-cv-10252-NMG

MEMORANDUM & ORDER
GORTON, J.
This suit arises out of claim that a police officer
violated plaintiff’s constitutional rights by unlawfully
stopping the driver and towing his car, all while plaintiff was
suffering from a serious medical condition.
I.

Background
Mark Harper (“Harper” or “plaintiff”), who is African

American, was driving in Attleboro, Massachusetts when he was
pulled over by Officer Christopher Booth (“Booth” or
“defendant”).

Booth, who was driving a marked police car, had

conducted a random query of plaintiff’s license plate which
reported that the vehicle’s license plate was cancelled and last
registered to a different vehicle.

The attached license plate

was also issued to a person with a suspended license.

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During the stop, Booth notified plaintiff that the
vehicle’s license plate was cancelled and registered to another
vehicle, which plaintiff did not dispute.
however, have a valid license at that time.

Plaintiff did,
Following this

colloquy, Booth ordered Harper out of the vehicle and informed
him that he would be towing it.

At some point during this

interaction, Harper allegedly told Booth that he was on the way
to the hospital because he was having a heart attack.

Although

it is unclear if Booth indicated that he or the tow truck driver
would transport plaintiff to the hospital, the tow truck driver,
who eventually towed the vehicle, dropped Harper off at a nearby
gas station.

From there, plaintiff called 911 and an ambulance

transported him to an emergency medical center.
Subsequently, plaintiff filed suit, pursuant to 42 U.S.C. §
1983, alleging that Officer Booth committed constitutional
violations by interfering with his right to travel, racially
profiling him and denying him of his property and medical care.
The defendant has filed a motion for summary judgment in
response to which plaintiff has filed a hand-written opposition
pro se.

A hearing on the motion for summary judgment was held

on April 22, 2019.

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II.

Legal Analysis
A. Legal Standard
The role of summary judgment is to assess the proof in

order to see whether there is a genuine need for trial. Mesnick
v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).

The

burden is on the moving party to show, through the pleadings,
discovery and affidavits, that there is “no genuine dispute as
to any material fact and that the movant is entitled to judgment
as a matter of law”. Fed. R. Civ. P. 56(a).

A fact is material

if it “might affect the outcome of the suit under the governing
law”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material fact exists where the evidence with
respect to the material fact in dispute “is such that a
reasonable jury could return a verdict for the nonmoving party”.
Id.
If the moving party has satisfied its burden, the burden
shifts to the nonmoving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).

The Court must view the

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

Summary

judgment is appropriate if, after viewing the record in the
nonmoving party’s favor, the Court determines that no genuine
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issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Celotex Corp., 477 U.S.
at 322–23.
B. Defendant’s Motion for Summary Judgment
1. Freedom to Travel
Plaintiff argues that the vehicle stop violated his
fundamental right to travel, which defendant does not address.
The constitutional right to travel refers to interstate travel,
as opposed to intrastate travel, and thus is not applicable
here.

Nevertheless, the Court will briefly address the issue.

The “right to travel” under federal law protects the right
of 1) a citizen of one State to enter and to leave another
State, 2) a citizen to be treated as a welcome visitor when
temporarily present in the second State and 3) permanent
residents to be treated like other citizens of that State. Saenz
v. Roe, 526 U.S. 489, 500 (1999).

The fundamental right to

travel is not, however, an absolute privilege and citizens are,
in any event, required to comply with federal and state laws.
Thus, plaintiff cannot claim that his right to travel was
violated because 1) he was traveling within the state and 2)
that right does not preclude him from being stopped by a police
officer for cause.

The Court now turns to plaintiff’s argument

that he was unlawfully stopped.

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2. Equal Protection
Plaintiff argues that there were other Caucasian drivers
who were speeding excessively but that Booth pulled him over
because he was African American.
Under the Equal Protection Clause of the Fourteenth
Amendment, persons similarly situated must be accorded similar
governmental treatment. Marrero-Gutierrez v. Molina, 491 F.3d 1,
9 (1st Cir. 2007) (internal citations omitted).

Absent direct

evidence of discriminatory motive, plaintiff must, in the face
of a facially neutral decision, establish both disproportionate
impact and purposeful discrimination. Hayden v. Grayson, 134
F.3d 449, 453 (1st Cir. 1998).

“Purposeful discrimination”

implies that the decisionmaker
selected or reaffirmed a course of action at least in part
“because of” not merely “in spite of” its adverse effects
upon an identifiable group”.
Id. (internal citations and quotations omitted).
Viewing the record in favor of the nonmoving party, this
Court presumes disparate impact, based on the allegation that
Booth pulled over Harper while there were other drivers, of a
different race, who were committing traffic-related offenses.
Plaintiff has provided no evidence, however, that Booth had the
requisite discriminatory purpose for pulling him over.

In fact,

defendant has proffered evidence that he stopped Harper because
Harper was driving a vehicle with an expired license plate that
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was registered to another vehicle.

Thus, there is no evidence

that Harper was stopped “because of” his race.

Accordingly, as

a matter of law, Booth is entitled to summary judgment with
respect to plaintiff’s claim that he was racially profiled in
violation of the Equal Protection Clause.
3. Procedural Due Process (Property)
Construing plaintiff’s complaint liberally, the Court
concludes that he has sufficiently alleged a procedural due
process violation with respect to the towing of his vehicle.
Booth does not address that argument but generally rejoins that
plaintiff was driving an unregistered and unlicensed vehicle (in
violation of M.G.L. c. 90, §§ 9, 23 and 34J) that could not
lawfully be operated on the roadways of the Commonwealth.

At

oral argument, defense counsel represented that Booth issued
Harper a ticket, although the timing of when that ticket was
issued remains in dispute.
The First Circuit Court of Appeals has not addressed
potential Due Process violations in the car-towing context and
defendant does not cite any Massachusetts statute or caselaw
that authorizes an officer to have a vehicle towed or impounded
without issuing the requisite ticket.

Several courts have,

however, held that
when a car is towed or impounded, some form of fair and
impartial hearing at which an owner is provided an
opportunity to challenge the lawfulness of removing his car
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and assessing charges against him must be provided within a
reasonable time period.
Breath v. Cronvich, 729 F.2d 1006, 1011 (5th Cir. 1984); see
also Huemmer v. Mayor & City Council of Ocean City, 632 F.2d
371, 372 (4th Cir. 1980); Stypmann v. City and County of San
Francisco, 557 F.2d 1338, 1343-44 (9th Cir. 1977).
Because the timing of the issuance of the ticket remains in
dispute, plaintiff has stated a claim for denial of due process
with respect to the towing.

Thus, the Court will deny

defendant’s motion for summary judgment on that claim.
In the absence of argument on the subject, it is worth
noting that Massachusetts courts have held that where a vehicle
is “unregistered, uninsured, and had attached plates belonging
to another vehicle”, officers may impound and inventory the
vehicle if there were “no practical available alternative[s]”.
Com. v. Daley, 672 N.E.2d 101, 103 (Mass. 1996).

The Court

finds, however, that Daley and its progeny of cases are
unpersuasive here.

First, those cases arose out of Fourth

Amendment claims and thus the opinions never considered whether
the Due Process rights of the subject criminal defendants were
violated.

Moreover, in many of those cases, the drivers were

either arrested or found to be without a valid license, thus
leaving the officer with no practical alternative to towing. Cf.
Com v. Figueroa, 592 N.E.2d 1309 (Mass. 1992) (driver was

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arrested and had no valid license); Daley, 672 N.E.2d at 103
(both the driver and passenger lacked valid driver’s licenses).
Because plaintiff had a valid license at the time of the stop,
there was an alternative to towing and thus, the cited
Massachusetts cases are inapposite.
4. Substantive Due Process (Medical Care)
Plaintiff argues that Booth failed to provide medical care
while he was having a heart attack to which defendant responds
that, absent being in custody or incarcerated, a constitutional
claim for failure to provide medical treatment does not exist.
The Eighth Amendment, which proscribes cruel and unusual
punishment (such as the failure to provide medical care),
applies after a formal adjudication of guilt and is thus not
applicable here, where plaintiff was not imprisoned or even
detained. City of Revere v. Massachusetts Gen. Hosp., 463 U.S.
239, 243–44 (1983).
The Due Process Clause does, however, require the
responsible government or governmental agency to
provide medical care to persons . . . who have been injured
while being apprehended by the police.
Id.

While the Supreme Court has declined to define the contours

of that due process right, it held that 1) officers have a due
process obligation to “other persons in [their] care who
require medical attention” and 2) the constitutional obligation
is satisfied if the injured individual is taken “promptly to a
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hospital” that ultimately provides the necessary treatment. Id.
at 244–45.
Here, plaintiff has alleged that prior to the vehicle stop,
he was on his way to the hospital and that during the encounter,
he was short of breath and having a heart attack.

Despite

plaintiff’s purported medical condition, Booth impounded the
vehicle and did not transport plaintiff to the hospital.

In

fact, contrary to plaintiff’s request to be taken to the
hospital, the tow truck driver dropped him off at a nearby gas
station where plaintiff called an ambulance.

Viewing the record

in favor of the nonmoving party, the Court will deny Booth’s
motion for summary judgment with respect to the medical care
claim because, in seizing plaintiff and his property, Booth is
alleged to have failed to provide medical attention to an
individual who was “in [his] care” during the stop.
5. Qualified Immunity
Defendant contends that he is entitled to
qualified immunity, which protects government officials from
trial and monetary liability unless the pleaded facts establish
that 1) the official violated a statutory or constitutional
right and 2) the right was “clearly established” at the time of
the challenged conduct. Ashcroft v. al–Kidd, 563 U.S. 731, 735
(2011).

If the facts do not show a constitutional violation or

that the right in question was not clearly established, the
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officer is immune. Marrero-Mendez v. Calixto-Rodriguez, 830 F.3d
38, 43 (1st Cir. 2016).
The Court concludes that plaintiff has alleged facts
sufficient to support a Due Process claim with respect to the
lack of medical care and the towing of the vehicle.

Under the

second prong of the analysis, the rights in question are
“clearly established” when
[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.
Id. at 45.
Here, the United States Supreme Court has made clear that
individuals have fundamental Due Process rights with respect to
their property and medical care.

Thus, it was unreasonable for

Booth to leave Harper without an option to get to the hospital
after Harper told him he was suffering from a serious medical
condition.

With respect to the towing, the facts as to notice

are not evident in the record and thus the Court reserves its
finding on qualified immunity as applied to that claim.

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ORDER
For the foregoing reasons, defendant’s motion for summary
judgment (Docket No. 56) is DENIED.

So ordered.
_/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated May 23, 2019

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