Morrissey v. Town of Agawam et al

Filing 45

Magistrate Judge Kenneth P. Neiman: MEMORANDUM AND ORDER entered with regard to Defendants' Motion for Summary Judgment, cc:cl. "For the reasons stated, Defendants' motion for summary judgment is ALLOWED in its entirety." (Healy, Bethaney) (Main Document 45 replaced on 7/12/2012 with correct main document - initial Memorandum and Order was a duplicate copy containing the Memorandum and Order twice) (Finn, Mary). Modified on 7/12/2012 (Finn, Mary).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TIMOTHY MORRISSEY,

)
)
)
)
v.
)
)
)
TOWN OF AGAWAM, AGAWAM
)
POLICE DEPARTMENT, PATROLMAN )
EDWARD B. CONNOR, PATROLMAN )
MARK CECCARINI and UNKNOWN
)
PATROLMEN
)
Defendants )
Plaintiff

Civil Action No. 10-30052-KPN

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (Document No. 33)
July 12, 2012
NEIMAN, U.S.M.J.
The present action arises out of an incident of alleged police misconduct which
occurred on March 15, 2007. Timothy Morrissey (“Plaintiff”), a diabetic, has filed an
action asserting claims pursuant to 42 U.S.C. § 1983, the Massachusetts Civil Rights
Act (“MCRA”), MASS. GEN. L. ch. 12 § 11I, and state common law. Plaintiff alleges that
Patrolmen Edward B. Connor (“Connor”) and Mark Ceccarini (“Ceccarini”) used
excessive force to apprehend him while he was suffering from a diabetic episode,
subsequently fabricated criminal charges to cover up their physical abuse of him, and
intentionally inflicted him with emotional distress. Plaintiff further alleges, pursuant to
section 1983 and the MCRA, that the Agawam Police Department (“APD”) and the
Town of Agawam (“Agawam”) (together with Connor and Ceccarini, “Defendants”)

maintain a policy, custom or practice that permits such behavior. Defendants deny
Plaintiff’s claims and, with regard to the section 1983 and MCRA claims against Connor
and Ceccarini, assert that they are entitled to qualified immunity.1
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties have
consented to the jurisdiction of this court. Presently, Defendants seek summary
judgment on all of Plaintiff’s claims. For the reasons that follow, the court will allow
Defendants’ motion.
I. BACKGROUND
The parties do not dispute the following facts, which are construed in a light
most favorable to Plaintiff, the non-moving party. In 1986, Plaintiff was diagnosed with
Diabetes Mellitus Type I. (Defendants’ Statement of Facts (“Defs. SOF”) ¶ 7.) As a
result, Plaintiff takes a form of insulin called Humalog on a daily basis. (Id. ¶ 9.) Prior
to March 15, 2007, Plaintiff had suffered from hypoglycemia, or low blood sugar. On
such occasions, Plaintiff typically felt “confused” and sometimes “sweaty.” (Id. ¶ 10.)
Normally, Plaintiff tested his blood sugar prior to eating and before going to bed. On
the day of the incident, however, Plaintiff had not tested his blood sugar since before
dinner on the previous day. (Id. ¶ 13.)
It is undisputed that Plaintiff has only a “limited” recollection of the incident. (Id.
¶ 41.) As a result, the court credits Plaintiff’s version of events only where he has a

1

In addition to Connor and Ceccarini, Plaintiff’s complaint names “unknown
patrolmen.” However, as the complaint has not been further amended and no other
patrolmen have been identified, the court assumes that Plaintiff’s allegations pertain
only to the identified defendants listed as parties in Plaintiff’s first amended complaint.
2

specific recollection; all other facts are derived from the version of the incident provided
by the police officers. Plaintiff left his house at approximately 7:00 a.m. in a Dodge
Caravan minivan, at which time he “felt fine.” (Id. ¶ 14.) Plaintiff was not wearing any
identification that would alert anyone to the fact that he was diabetic. (Id. ¶ 38.)
Plaintiff does not recall driving erratically. (Id. ¶ 24.) At around 8:43 a.m., Connor
received a call from dispatch ordering him to report to Route 57 in response to a call
complaining of an “erratic driver” traveling eastbound. (Id. ¶ 43.) Upon his arrival,
Connor observed Plaintiff’s van crossing into the west bound lane, thereby causing
vehicles traveling west to swerve to the right to avoid a collision with Plaintiff’s vehicle.
(Id. ¶ 45.) Plaintiff recalls seeing the car behind him turn on its lights but does not
recall where he was at the time. (Id. ¶ 24.) Plaintiff recalls thinking the car behind him
wanted to pass him and so he pulled over to the side of the road. (Id. ¶¶ 25, 46.)
Connor pulled his cruiser in front of Plaintiff’s van. (Id. ¶ 47.)2
Plaintiff remembers someone coming over to his driver-side window and asking
him to roll it down but that “he could not figure out how to do it.” (Id. ¶ 27.) Plaintiff
also remembers someone saying to him, “Roll down your window[ ] . . . If not, we’ll
break it.” (Id. ¶ 28.) Plaintiff recalls that, while looking down in his van with the
windows closed, he stated, possibly more than once, “I’m fucking diabetic.” (Id. ¶¶ 2829; Plaintiff’s Statement of Facts (“Pl. SOF”) ¶¶ 28-29.) Connor states that he did not

2

Connor asserts that he pulled behind Plaintiff while driving and turned on his
lights and his siren. When Plaintiff failed to pull over, Connor passed Plaintiff’s vehicle
and cut him off to stop him. (Defs. SOF ¶¶ 44-45.) However, for present purposes, this
memorandum will credit Plaintiff’s version of events.
3

hear Plaintiff say he was diabetic and believes that, when asked to roll down his
window, Plaintiff responded, “fuck you hold on.” (Id. ¶¶ 46, 48.)
While Connor was at Plaintiff’s driver-side window, Ceccarini arrived on the
scene, also in response to the dispatch call regarding an erratic driver. (Id. ¶ 47.)
Ceccarini saw Connor’s cruiser stopped in front of Plaintiff’s van and he pulled up
behind Plaintiff’s vehicle. (Id. ¶¶ 47, 48.) Ceccarini confirmed that Connor was giving
commands to Plaintiff and ordering him to put his vehicle in park and, further, asserts
that Plaintiff responded, “No, I’m not going to fucking put the car in park.” (Id. ¶ 50.)
Ceccarini also recalls that Connor ordered Plaintiff to unlock his door and roll down his
window and that Plaintiff refused to comply. (Id. ¶ 51.)
After asking Plaintiff to open his window several times, Connor asked Ceccarini
to retrieve his nightstick. Connor again asked Plaintiff to open his window. Both
Connor and Ceccarini assert that, rather than comply, Plaintiff grabbed the steering
wheel while attempting to use his right hand to put the vehicle into drive. (Id. ¶¶ 52,
54.) At that point, Connor broke Plaintiff’s driver-side window with Ceccarini’s night
stick, opened the car door, and grabbed Plaintiff who, according to Connor, “was still
struggling to put the vehicle in gear.” (Id. ¶ 53.)3 Plaintiff has no memory of any of
these events, except that he remembers seeing glass on his lap while he was still
seated in the van. (Id. ¶ 34.)

3

Plaintiff disputes that he was trying to drive away. (Pl. SOF ¶¶ 52-54.)
However, Plaintiff does not refer to any evidence in the record to refute the police
officers’ recollection of events and, as indicated, Plaintiff himself has no memory of this
portion of the incident.
4

According to Connor and Ceccarini, Plaintiff then began to struggle with them as
they attempted to get him out of the vehicle. (Id. ¶ 57.) It is unclear if Connor opened
the door to force Plaintiff out of the car or if he pulled Plaintiff through the shattered
window. Plaintiff has no memory of exiting the vehicle. (Id. ¶ 34.) In any event, the
officers assert that Plaintiff was kicking and screaming and refused to comply with
verbal commands that he stop resisting. Moreover, once outside the vehicle, Plaintiff
continued to struggle with Connor and Ceccarini, who forced him to the ground. (Id.)
Once on the ground, Plaintiff continued to resist and refused to follow orders to put his
hands behind his back; rather, he attempted to get up off the ground several times. (Id.
¶ 59.) At that point, Connor warned Plaintiff that if he continued to resist he would be
sprayed with mace. Plaintiff again attempted to get off the ground and Connor sprayed
mace at Plaintiff. (Id. ¶ 60.) Plaintiff has no memory of any of these events, except that
he recalls sitting on the ground at one point and being accused of carrying mace.
Plaintiff believes he responded, “I ain’t got no fucking mace.” (Id. ¶ 35.)
As for the mace, Connor sprayed Plaintiff and says he aimed for his chest,
although Plaintiff later complained that his eyes were burning. (Id. ¶¶ 60, 69.) At the
time, the spray appeared to have no effect on Plaintiff who continued to struggle with
the officers. As Plaintiff punched Connor, Ceccarini hit Plaintiff on his upper left arm
with his baton. (Id. ¶¶ 61, 62.) Ceccarini also hit Plaintiff with his baton on his right
thigh as Plaintiff kicked him. (Id.) During this time, Connor called for further

5

assistance. (Id. ¶ 63.)4 Officer Richard A. Riccio (“Riccio”) responded to Connor’s call
and stopped his vehicle in the middle of the intersection “so nobody would run anybody
over.” (Id. ¶¶ 64-65.) Riccio saw Connor, Ceccarini and Plaintiff rolling on the ground.
(Id. ¶ 66.) Riccio joined the fray and, together with Connor and Ceccarini, was able to
pin Plaintiff to the ground. (Id. ¶ 67.) Plaintiff, who continued to struggle against the
officers, was eventually handcuffed with his hands behind his back. (Id.) Plaintiff was
charged with five misdemeanor violations, including: (1) marked lanes violation; (2)
failure to stop for a police officer; (3) negligent operation of a motor vehicle; (4)
disorderly conduct; and (5) resisting arrest. (Id. ¶ 68.)
Andrew Reardon (“Reardon”), an eyewitness to the scene, confirms salient
aspects of the police officers’ testimony. Reardon stated that he observed Plaintiff’s
van “weaving back and forth across double yellow,” fully crossing the double yellow
lines four times. (Id. ¶ 107.) Reardon testified that he saw Plaintiff’s van pulled over on
the side of the street and that his van “was blocked in by the first cruiser in front and
the second cruiser behind.” (Id. ¶ 109; Ex. 19 (Attached to Defs. SOF) at 32.)
Reardon, who parked his car in a church parking lot facing Plaintiff’s van, heard police
officers repeatedly yelling at Plaintiff to unlock his door, open the door, open his
window, and turn off the engine. Reardon confirmed that the police officers were not
getting any response from Plaintiff. (Defs. SOF ¶ 110.) In a written statement,

4

Plaintiff disputes fighting with the police officers. (Pl. SOF ¶¶ 59-62.)
However, Plaintiff does not refer to any evidence in the record to refute the police
officers’ recollection of events and, as indicated, Plaintiff himself has no memory of this
portion of the incident.
6

Reardon indicated that he saw a police officer smash Plaintiff’s driver side window and
remove him from the vehicle, while the two officers and Plaintiff “struggled quite a bit.”
(Id. ¶ 111; Ex. 31 (Attached to Defs. SOF).) Reardon stated that the struggle ended
when a third police officer joined the effort. (Defs. SOF ¶ 111.)5
Once Plaintiff had been subdued, Connor called for an ambulance because
Plaintiff had blood on his left hand and appeared to have an injury to his head, where
his head hit the pavement. (Id. ¶ 71.) After Plaintiff was handcuffed, Riccio asked him
if he was injured. Plaintiff stated only that his eyes were burning. (Id. ¶ 69.) Riccio
noted that Plaintiff, who was no longer combative, “had a weird look on him” and did not
smell of any alcohol. (Id.) Riccio asked Plaintiff if he was diabetic, to which Plaintiff
responded, “Yeah.” (Id.) Riccio also asked Plaintiff if he had eaten that day and taken
his medication, to which questions Plaintiff answered “No.” (Id.) Riccio also asked
Plaintiff if he had his diabetes medication with him, and Plaintiff responded that it was
in his vehicle. (Id. ¶ 72.) When the ambulance arrived on the scene with two
emergency medical technicians (“EMTs”), Michael Pietrano (“Pietrano”) and Mark
Theroux (“Theroux”), Riccio informed them that Plaintiff was diabetic and his
medication was in his vehicle. (Id. ¶¶ 72, 95.) Ceccarini asserts that he did not know
Plaintiff was suffering from diabetic shock until he was told by a paramedic as Plaintiff
was being placed in the ambulance. (Id. ¶ 81.) Similarly, Connor asserts that he did

5

A second eyewitness, David Davenport (“Davenport”) also observed the
incident. However, Plaintiff has moved to strike his testimony, which the court has
granted, and the court has not considered it for purposes of deciding Defendants’
motion for summary judgment.
7

not learn that Plaintiff was suffering from diabetic shock until later that afternoon after
he had filed his written report of the incident at the police station. (Id. ¶ 82.)
Pietrano and Theroux arrived at the scene at approximately 8:45 a.m. (Id. ¶ 95.)6
As Pietrano and Theroux were putting Plaintiff in the ambulance, Riccio approached
Theroux and said that he found Plaintiff’s bag of diabetic materials. (Id. ¶ 101.)7
Plaintiff has no memory of any of these events, except that he recalls being in an
ambulance. (Id. 35.) Theroux tested Plaintiff’s blood sugar in the ambulance and
noted it was low. (Id. ¶ 102.) In the ambulance, Plaintiff complained that he had pain
in his left shoulder and left arm or lower left elbow. (Id. ¶ 105.) Theroux examined
Plaintiff but found no bruising, deformity, or abrasions and did not note any injury. (Id.)
It is, however, undisputed that both Plaintiff and Connor sustained injuries during
the incident. Plaintiff suffered burning eyes, a sore left elbow and a scrape on his
forehead (which did not require stitches). (Id. ¶ 85.) Connor suffered a laceration to his
hand and cuts to both of his knees. (Id. ¶ 86.) As to the charges against Plaintiff, a
state court judge found Plaintiff “not responsible” as to the charge of crossing marked
lanes. On the remaining four counts, the judge placed Plaintiff on pre-trial probation
pursuant to Mass. Gen. L. ch. 276, § 87. (Id. ¶ 83; Ex. 15 (Attached to Defs. SOF).)
II. STANDARD OF REVIEW
6

The time appears incorrect, as Connor stated he first got the call about
Plaintiff’s erratic driving at 8:43 a.m. which would mean that the entire incident would
have spanned two minutes. The exact timing is not material to the present motion.
7

Although Theroux does not identify the police officer who approached him,
Riccio testified that it was he who informed the EMTs that Plaintiff was diabetic and his
medication was in his vehicle. (Defs. SOF ¶¶ 72, 95.)
8

When ruling on a motion for summary judgment, the court must construe the
facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331
F.3d 166, 173 (1st Cir. 2003). Summary judgment is appropriate when “there is no
genuine issue as to any material fact” and “the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” when the evidence is such
that a reasonable fact-finder could resolve the point in favor of the non-moving party,
and a fact is “material” when it might affect the outcome of the suit under the applicable
law. Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). The non-moving
party bears the burden of placing at least one material fact into dispute after the moving
party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18
F.3d 13, 15 (1st Cir. 1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).
III. DISCUSSION
A. Claims Against Connor and Ceccarini
In their motion for summary judgment, Connor and Ceccarini seek to shield
themselves from liability by invoking the protection of qualified immunity. The qualified
immunity inquiry comprises a two part test. A court must determine whether (1) the
plaintiff’s allegations, if true, establish a constitutional violation and, if so, (2) whether
the constitutional right at issue was clearly established at the time of the putative
violation. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). Although the
Supreme Court has indicated that the inquiry need not be taken sequentially, see
Pearson v. Callahan, 555 U.S. 223, 236 (2009), if a court finds that “no constitutional
9

right would have been violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201
(2001). Put another way, if a plaintiff fails to establish a constitutional violation, the
court need not decide whether the defendant would nonetheless be entitled to qualified
immunity.
In any event, plaintiffs bear the burden of proof as to whether a constitutional
violation occurred and defendants bear the burden of proof as to whether they are
entitled to qualified immunity. See Gelinas v. Boisselle, 2011 WL 5041497, at *5 (D.
Mass. Oct. 17, 2011). The same qualified immunity standard that applies under section
1983 applies to claims under the MCRA. See Howcroft v. City of Peabody, 747 N.E.2d
729, 746 (Mass. App. Ct. 2001); Duarte v. Healy, 537 N.E.2d 1230, 1232 (Mass. 1989)
(“We conclude it to be consistent with the intent of the Legislature in enacting the Civil
Rights Act to adopt thereunder the standard of immunity for public officials developed
under § 1983.”).
a. Section 1983 Claim of Excessive Force against Connor and Ceccarini
(Count I)
“Where an excessive force claim arises in the context of an arrest, the claim
must be analyzed in light of the Fourth Amendment's prohibition of unreasonable
searches and seizures.” LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 137-38 (D. Mass.
2007) (internal quotation marks omitted). The United States Supreme Court
established a balancing test to determine the constitutionality of a particular use of
force. Without excluding the importance of other factors, the Court focused the

10

reasonableness inquiry on three factors in particular: 1) whether the suspect is actively
resisting arrest or attempting to evade arrest by flight, 2) whether the suspect poses an
immediate threat to the safety of the officers or others, and 3) the severity of the crime
at issue. Graham v. Connor, 490 U.S. 386, 396 (1989).
The court finds that the undisputed facts demonstrate that Connor and
Ceccarini’s use of force here was reasonable. First, Plaintiff actively resisted arrest
and attempted to flee the scene. To be sure, Plaintiff now asserts that Connor and
Ceccarini’s cruisers were blocking his van, such that it was impossible for him to drive
away. (Pl. SOF ¶¶ 52-54.) In this regard, Plaintiff cites Reardon’s statement that
Plaintiff’s car was blocked in by the cruisers. (Ex. 19 (Attached to Defs. SOF) at 32.)
However, Reardon’s statement that Plaintiff’s van “was blocked in by the first cruiser in
front and the second cruiser behind” does not equate to Plaintiff’s extrapolation that he
was unable to escape. It is undisputed that there were no vehicles on either side of
Plaintiff’s van, making it possible that Plaintiff would have been able to flee as Connor
and Ceccarini feared.
Nonetheless, Plaintiff denies trying to drive away or fighting with the officers.
(Pl. SOF ¶¶ 59-62.) But, as Plaintiff concedes, he has little memory of the events and
proffers no evidence to contradict the police officers’ recollection of events, as
confirmed by Reardon. Simply put, Plaintiff’s bald assertions are insufficient to place
Connor’s and Ceccarini’s versions of these events in dispute. See LaFrenier, 478 F.
Supp. 2d at 130, 134 (noting that the plaintiff had “no recollection of the events, [and
had] offered no affirmative evidence as to the encounter by the side of the road,” and
11

that, as a result, “any discrepancies between the deposition testimony and the police
report will be resolved in [the plaintiff’s] favor. In all other respects, however, the Court
will accept the officers’ version of the roadside encounter.”). By all accounts, then,
Plaintiff struggled with the police officers and continued to do so even after a third
police officer arrived on the scene.
Second, it is undisputed that Plaintiff’s behavior posed an immediate threat not
only to the officers but to others as well. The incident occurred on the side of the road,
prompting Riccio, when he arrived on the scene, to position his cruiser in the middle of
the intersection in an attempt to lessen the inherent danger arising from the proximity of
the event. Moreover, the fact that Plaintiff injured Connor suggests that he posed a
danger to the officers. Finally, several of the crimes at issue here -- resisting arrest
and disorderly conduct -- were “sufficiently serious to warrant the exercise of force.” Id.
at 138.
Plaintiff’s argument is not aided by his reliance on the Seventh Circuit’s decision
in McAllister v. Price, 615 F.3d 877, 882-83 (7th Cir. 2010). Unlike Plaintiff, the plaintiff
in McAllister was described by the police officer as “lethargic and nonresponsive,” and
the court found that his condition rendered him “unable to flee or resist arrest” and
demonstrated that he did not pose an immediate threat to the officer or public at large.
Id. at 883. Thus, two of the three Graham factors which this court finds here weigh in
favor of the police officers weighed in the opposite direction in McAllister.
In contrast, the district court’s decision in LaFrenier is quite instructive. There,
similar to the situation at bar, a police officer was dispatched in response to calls from
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individuals who had observed the plaintiff pull his car over to the side of the road. The
eyewitnesses described the plaintiff as looking ill and “not feeling well.” LaFrenier, 478
F. Supp. 2d at 129-130. When the officer arrived at the scene, she twice asked the
plaintiff to shut off his car engine and step to the rear of the vehicle. Based on the
plaintiff’s responses, the officer testified that she thought he might be either suffering
from a medical condition or be under the influence of alcohol. Id. at 130-32. After
exiting the vehicle, the plaintiff became angry and began to push the officer, indicating
that he wanted to get back in the car. A struggle ensued. The officer, joined by a
colleague, pushed the plaintiff into his vehicle several times and struck him in his left
upper leg. With assistance from the second officer, the plaintiff was eventually
subdued, handcuffed, and arrested. As a result of the incident, the plaintiff suffered
bruising and soreness. The officer was not injured. Id. at 132, 133. It was later
determined that the plaintiff’s condition was likely caused by his having taken cold
medicine containing pseudoephedrine. Id. at 133.
Applying the balancing test articulated in Graham, the district court in LaFrenier
concluded that “no genuine dispute exists as to the objective reasonableness of
defendants’ use of force” and allowed the defendant’s motion for summary judgment on
the excessive force claim. Id. at 138. More specifically, the court found as follows:
As to the first factor, it is undisputed that [plaintiff] actively
resisted arrest and attempted to flee the scene throughout
the encounter. Indeed, plaintiff continued resisting, even
after the officers managed to get handcuffs on him and
attempted to place him into the cruiser. Second, plaintiff's
violent behavior clearly posed an immediate threat to
himself and the officers, particularly given the fact that the
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incident took place on the side of the road, thereby creating
the risk that [plaintiff] or defendants would be hit by
oncoming traffic. And finally, the record shows that the
crimes at issue here -- assault and battery on a police
officer, resisting arrest, and disorderly conduct -- are
sufficiently serious to warrant the exercise of force.
Id. As described, this is very much what occurred here as well.
Plaintiff’s attempt to distinguish LaFrenier is unpersuasive. He argues that,
unlike the situation there, his illness was the result of an easily identifiable medical
condition; accordingly, Connor and Ceccarini, Plaintiff maintains, should have been
aware that he was in diabetic shock based on his behavior and conduct. However, as
Plaintiff’s own expert Glenn B. Coffin (“Coffin”), noted, it is not possible to determine,
simply by “[l]ooking at someone alone,” whether he is suffering from low blood sugar or
is under the influence of drugs and alcohol, and that a glucometer must be used to test
blood sugar levels to make a determination of hypoglycemia. (Defs. SOF ¶¶ 153-54.)
Moreover, as Coffin explained, a determination about whether an individual is
hypoglycemic as opposed to intoxicated varies from person to person and requires
making a distinction that is nearly impossible for an observer to judge. (Ex. 1 (Attached
to Pl. SOF) at 176.) Granted, Coffin testified at his deposition that someone properly
trained approaching a situation with an open mind can usually tell the difference
between intoxication and diabetes. (Ex. 1 (Attached to Pl. SOF at 176). However, he
also conceded that “[i]t would have been difficult” for Connor and Ceccarini to discern
whether Plaintiff was suffering from hypoglycemia as opposed to intoxication, drug use,
or some other condition at the time they were talking to Plaintiff through his van

14

window. (Defs. SOF ¶ 155.) In short, Plaintiff has not established that Connor and
Ceccarini should have, or even could have, known that he was diabetic, such that their
conduct could be considered unreasonable.
Even if Connor and Ceccarini were somehow able to recognize that Plaintiff was
ill, a point which is in no way conceded by Defendants, that fact would be of little help
to Plaintiff. As in LaFrenier, where the responding officer was called in response to
reports that the driver was ill, the reason why Plaintiff was combative does not control
the court’s analysis as to whether the force employed by the police officers and the
ensuing arrest were reasonable. See LaFrenier, 478 F. Supp. 2d at 138. Connor and
Ceccarini, in fact, had no indication that Plaintiff was either ill or intoxicated and,
further, had to employ force only when Plaintiff refused to open the door, attempted to
flee, and became violent when the officers tried to remove him from the van. It is
understandable that Plaintiff views the situation differently, given his stance that it was
his diabetic shock which caused him to behave in this manner. But in light of Plaintiff’s
undisputed erratic driving, his refusal to exit the van, and his violent behavior towards
Connor and Ceccarini, their use of force was both warranted and reasonable.
In sum, Plaintiff has failed to establish a Fourth Amendment violation based on
Connor and Ceccarini’s use of force and summary judgment is appropriate on that
claim. The court therefore need not address whether Connor and Ceccarini are entitled
to qualified immunity, although it is likely under these circumstances that they are.
Defendants’ motion for summary judgment as to Count I will therefore be allowed.

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b. Section 1983 Claim of False Arrest/Malicious Prosecution Against
Connor and Ceccarini (Count II)
i. False Arrest
“The Fourth Amendment requires arrests be based on probable cause.” Sietins
v. Joseph, 238 F. Supp. 2d 366, 375 (D. Mass. 2003). “If probable cause exists to
arrest, then there has not been a constitutional deprivation.” Id. The probable cause
standard is a "relatively low threshold" for police officers to establish. Id. (quoting
White v. Town of Marblehead, 989 F. Supp. 345, 349 (D. Mass. 1997)). "Probable
cause will be found if 'the facts and circumstances within [the officer's] knowledge and
of which [he] had reasonably trustworthy information were sufficient to warrant a
prudent [person] in believing that the [defendant] had committed or was committing an
offense.'" Id. Moreover, “probable cause need only exist as to any offense that could
be charged under the circumstance.” LaFrenier, 478 F. Supp. 2d at 136 (citing United
States v. Bizier, 111 F.3d 214, 219 (1st Cir. 1997) (emphasis in original)).
Here, Defendants argue that, at the moment of arrest and under the facts and
circumstances known to the police officers at the time, a reasonable police officer
would have believed that there was a probability that Plaintiff was committing at least
one of the offenses with which he was charged. The court agrees. Connor observed
Plaintiff driving erratically, specifically that his van crossed into the west bound travel
lane, causing vehicles traveling west to swerve to the right to avoid a collision. (Id. ¶
45.) In addition, as described, the court credits Connor’s and Ceccarini’s
uncontroverted statements that Plaintiff struggled against them and resisted arrest.

16

Thus, Connor and Ceccarini have satisfied the “relatively low threshold” required by the
Fourth Amendment that probable cause existed regarding Plaintiff’s arrest. Moreover,
as Connor’s and Ceccarini’s conduct comports with the Fourth Amendment, the court
need not address their remaining arguments regarding qualified immunity. Defendants’
motion for summary judgment on Count II will therefore be allowed to the extent it
claims an unlawful arrest.
ii. Malicious prosecution
To establish a claim of malicious prosecution, a plaintiff must show: "(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."
Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) (citing Correllas v. Viveiros, 572
N.E.2d 7 (Mass. 1991)). To transform a malicious prosecution into a claim cognizable
under section 1983, the plaintiff must also demonstrate a constitutional deprivation. Id.;
Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1402 (1st Cir. 1991) (“All federal claims
for malicious prosecution are borrowed from the common law tort . . . [which] imposes
liability on a private person who institutes criminal proceedings against an innocent
person without probable cause for an improper purpose. The federal claim under [42
U.S.C.] section 1983 for malicious prosecution differs from the state civil suit in that it
requires that state officials acting ‘under color of law’ institute the criminal proceedings
against the plaintiff and thereby deprive him of rights secured under the Constitution.”).
Because, as indicated, Connor and Ceccarini had probable cause to arrest Plaintiff for
17

the crimes alleged, Plaintiff cannot bear his burden with regard to the third prong, see
Nieves, 241 F.3d at 53, and his claim for malicious prosecution necessarily fails. See
id. at 53; Sheppard v. Aloisi, 384 F. Supp. 2d 478, 491 (D. Mass. 2005) (“Obviously, if
there was probable cause for the arrest, the claim of malicious prosecution would fail.”).
Even in the absence of probable cause, Plaintiff’s claim for malicious
prosecution fails. First, Plaintiff does not dispute that Ceccarini had no role in the
process of charging Plaintiff and ascribes no wrongdoing to him (Pl. SOF ¶ 80); thus,
the court will allow Defendants’ motion for summary judgment as to him. Second, as to
Connor, Plaintiff concedes that he had no formal role in the prosecutorial process and
acknowledges that “there is no evidence of affirmative pressure [by Connor] in this
case.” (Pl. Opp. at 13.) In fact, as Defendants assert, Connor’s role was limited to
completing the arrest report. Plaintiff also acknowledges that, as described by Chief of
Police Robert D. Campbell, the arresting officer simply writes the charges which must
be approved by a supervisor; the supervisor then brings the charges to the clerk
magistrate to determine if there are sufficient grounds in support, and, if the clerk
magistrate determines that sufficient grounds do not exist, no complaint is issued.
(Defs. SOF ¶ 77.)
Plaintiff disputes these facts only to the extent he claims that “Connor was the
precipitating force behind the filing of the [criminal] complaint” as well as the charges.
(Pl. SOF ¶¶ 76-78.) In this vein, Plaintiff argues that “it is obvious that [Connor]
withheld the evidence that [Plaintiff] suffered from a common diabetic induced ailment.
It is never mentioned in his report, which served as the charging document.” (Pl. Opp.
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at 13.) As for Connor’s testimony that he did not learn that Plaintiff was suffering from
diabetic shock until after he had written and filed his report (Defs. SOF ¶ 82), Plaintiff
asserts that “Connor’s self-serving testimony [ ] may not be credible; and is belied by all
of the credible information obtained from the scene of the accident.” (Pl. SOF ¶ 82.)
All this is more argument than substance. Plaintiff points to no evidence in the
record to demonstrate that Connor knew that Plaintiff was diabetic before he filed his
report. Plaintiff admits that he was not wearing any identification that would indicate he
was diabetic (Defs. SOF ¶ 38) and, although the court credits Plaintiff’s testimony that
he stated he was diabetic, he acknowledges that at the time he was sitting in his van,
looking down, with the windows closed, and, most importantly, that he is not sure if
Connor heard him. (Id. ¶ 29; Pl. SOF ¶¶ 28-29.) In short, Plaintiff proffers no material
evidence to contradict Connor’s testimony that he did not hear Plaintiff state he was
diabetic. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 600 (1988) (noting that “if the
[defendant] has made a properly supported [summary judgment] motion, the plaintiff
may not respond simply with general attacks upon the defendant's credibility, but rather
must identify affirmative evidence from which a jury could find that the plaintiff has
carried his or her burden. ”) (footnote omitted).
Plaintiff’s reliance on Burke v. Walpole, 405 F.3d 66 (2005), is unavailing. In
Burke, there was evidence that directly contradicted the officer’s testimony that he was
unaware of exculpatory information when he filed his report, namely, contemporaneous
notes by an individual who claimed she called the police officer to report such
evidence; construing the facts in a light most favorable to the plaintiff, the First Circuit
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remanded the case to the district court. Here, in contrast, there is no evidence in the
record to contradict Connor’s testimony that he was unaware that Plaintiff was diabetic
until after he filed his report.
Persevering, Plaintiff nonetheless asks the court to infer that Connor had to have
known of Plaintiff’s diabetes but still declined to include the information in his report.
Unfortunately for his cause, this request is based on an array of supposition and
conjecture, including Plaintiff’s conclusory argument that it is simply inconceivable that
Connor did not learn that Plaintiff was diabetic at the scene of the incident when Riccio
and Ceccarini themselves learned of it. Again, such speculation, in the court’s view, is
both unpersuasive and insufficient. See Brown v. Latin Am. Music Co., Inc., 498 F.3d
18, 24 (1st Cir. 2007) (“In opposing a motion for dismissal for failure to state a claim, as
in opposing a motion for summary judgment, general denials are insufficient and the
court is not required to credit bald assertions, unsupportable conclusions, periphrastic
circumlocutions, and the like.”) (internal citation and quotation marks omitted). The
record before the court is devoid of any indication that Connor knew that Plaintiff was
suffering from diabetes and/or diabetic shock such that he should have included it in
his report. More importantly perhaps, Plaintiff has failed to point to any evidence that
the “omission” resulted from any actual malice on Connor’s part. Count II, after all,
asserts a claim of malicious prosecution.
Given that Plaintiff has not established several of the essential elements of his
malicious prosecution claim, he cannot demonstrate that his prosecution comprised a
constitutional violation under section 1983. See Smith, 936 F.2d at 1402. Accordingly,
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the court need not decide whether Connor and Ceccarini may also be entitled to
qualified immunity -- although, again, that is likely -- and will allow Defendants’ motion
for summary judgment as to Count II to the extent it claims malicious prosecution.

2. MCRA Claim Against Connor and Ceccarini (Count III)
As an initial matter, the court notes that, in opposition to Defendants’ motion for
summary judgment, Plaintiff does not meaningfully address his MCRA claim against
Connor and Ceccarini. Rather, he merely asserts that his “analysis of the remaining
state counts does not need to be extended” because the “purpose of the MCRA is to
provide a remedy co-extensive with § 1983.” (Pl. Opp. at 16.) Still, because Plaintiff
specifically mentions state law claims, it is not clear if he wishes to pursue these claims
independently, despite the fact that no such independent state law claims are pled in
his complaint, or within the context of the MCRA only. In any event, because the court
has concluded that summary judgment is appropriate as to Plaintiff’s false arrest and
malicious prosecution claims under section 1983, summary judgment as to those
claims, to the extent Plaintiff might wish to pursue them as independent state law
claims, is also appropriate and will be granted to Connor and Ceccarini.
As for the MCRA claim itself, Plaintiff must prove that his exercise or enjoyment
of rights secured by the constitution or laws of either the United States or
Massachusetts has been interfered with, or attempted to be interfered with, by threats,
intimidation or coercion. See MASS. GEN. L. ch. 12, § 11I. Although the MCRA is the
state "counterpart" to section 1983 and is basically "coextensive with" the federal

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statute, there are some differences. For example, to succeed on an MCRA claim, a
plaintiff, unlike with section 1983, must show that the derogation of rights occurred "by
threats, intimidation or coercion." Bally v. Northeastern Univ., 532 N.E.2d 49, 52 (Mass.
1989). “A ‘threat’ means the ‘intentional exertion of pressure to make another fearful or
apprehensive of injury or harm.’” Goddard v. Kelley, 629 F. Supp. 2d 115, 128 (D.
Mass. 2009) (quoting Planned Parenthood League of Massachusetts, Inc. v. Blake, 631
N.E.2d 985 (1994)). "Intimidation" means putting a person in fear for the purpose of
compelling or deterring his or her conduct. Id. "Coercion" means application of
physical or moral force to another to constrain him to do against his will something he
would not otherwise do. Id.
The MCRA contemplates a two-part sequence: liability may be found where
(1) the defendant threatens, intimidates, or coerces the plaintiff in order to (2) cause the
plaintiff to give up something that he has the constitutional right to do. See id. Here,
because Plaintiff has not established that Connor and Ceccarini violated any
constitutional right, his MCRA claim against them must also fail. See MASS. GEN. L. ch.
12, § 11I; see also Parks v. Town of Leicester, Civil Action No. 10-30120-FDS, 2011
WL 864823, at *5 (D. Mass. March 9, 2011) (for purposes of the MCRA, “the element of
‘threats, intimidation, or coercion’ must be separately present in addition to the violation
of rights.”) (emphasis added). The court, therefore, will allow Defendants’ motion for
summary judgment as to Count III.

3. Claim of Intentional Infliction of Emotional Distress Against Connor and
Ceccarini (Count VI)
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In order to establish that Connor and Ceccarini are liable for the tort of
intentional infliction of emotional distress, Plaintiff must prove that: (1) they intended to
cause, or should have known that their conduct would cause emotional distress; (2)
their conduct was extreme and outrageous; (3) their actions caused Plaintiff distress;
and (4) Plaintiff suffered emotional distress. See Fredette v. Allied Van Lines, 66 F.3d
369, 374 (1st Cir. 1995). In the court’s view, no reasonable factfinder could resolve this
claim in Plaintiff’s favor.
At the outset, the court notes that Plaintiff does not address this claim in his
opposition to Defendants’ motion for summary judgment and did not raise it at the
hearing thereon. But even had Plaintiff done so, the court finds that summary judgment
for Connor and Ceccarini is appropriate as to this count as well. As in Sheppard v.
Aloisi, the court concludes that “[w]here probable cause was at least arguable, and a
reasonably objective police officer could have determined, based on the evidence that
was available at the time of the arrest, that [Plaintiff] was guilty of the accused crime,” it
can not conclude that the complained of conduct was “extreme and outrageous.” 384
F. Supp. 2d at 495. To be sure, an arrest “is a traumatic experience, especially if the
charges later prove to be false” but that that “factor alone does not give rise to a claim
for intentional infliction of emotional distress.” Id. Similarly here, because the court
finds that Connor and Ceccarini had probable cause to arrest Plaintiff and that their use
of force was objectively reasonable under the circumstances, their conduct cannot be
said to rise to the level of “extreme or outrageous.”

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B. Claims Against Agawam and the APD
1. Section 1983 Claim Against Agawam and the APD (Count IV)
Plaintiff alleges that Agawam and the APD violated section 1983 because they
maintain a policy, custom, practice or pattern of: (1) using excessive force on the
civilian population; (2) failing to provide adequate training to police officers particularly
about the effects of low blood sugar and diabetes; (3) failing to provide adequate
supervision of police officers; (4) failing to discipline police officers who violate the
rights of its citizens; and (5) failing to prevent officers from filing false charges to mask
other misconduct.
“Under Section 1983, it is well established that a municipality is not liable for the
actions of its employees simply by virtue of the employment relationship.” Freeman v.
Town of Hudson, 2012 WL 911430, at *8 (D. Mass. Mar. 15, 2012) (citing Monell v.
Dept. of Social Servs. of City of New York, 436 U.S. 658, 691 (1978)). “Instead, under
Monell and subsequent cases, a plaintiff seeking to prove municipal liability under
Section 1983 must identify a municipal policy or custom that caused the plaintiff's
injury.” Id. at 694. Moreover, “[i]nadequate training rises to the level of municipal
custom or policy only when ‘the need for more or different training is so obvious, and
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been reasonably indifferent to
the need.’” Jackson v. Inhabitants of Town of Sanford, 1994 WL 589617, at *5 (D. Me.
Sept. 23, 1994) (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1159 (1st Cir. 1989)).
Thus, “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious' choice by a
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municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a
failure under § 1983.” Canton v. Harris, 489 U.S. 378, 389 (1989).
The following facts are undisputed:
(1) ) Sergeant Richard J. Niles (“Niles”) is in charge of the training program for
the Department of Police and he ensures that individuals go to the appropriate
training programs that are approved by the Massachusetts Criminal Justice
Training Commission. (Defs. SOF ¶ 130.)
(2) Officers attend in-service training which includes defensive tactics, including
mace and use of force. If an officer is unable to physically control an individual,
the next step is to use a chemical agent such as mace. (Id. ¶ 128.)
(3) Officers receive in-house training which includes: breathalyzer training,
firearms training, first aid, CPR and defibrillator training. Officers also attend
three days of additional training at the Police Academy. (Id. ¶ 129.)
(4) While at the Police Academy, each cadet receives thirty-two hours of first
responder training and eight hours of CPR training. After graduation, the
Department of Police conducts a four hour CPR training course and a four hour
First Responder training course each year. (Id. ¶¶ 133-34.)
(5) In 2006, which was the last First Responder course prior to the March 15,
2007 incident, officers were trained to recognize the signs of insulin shock and
diabetic coma. However, officers are not supposed to diagnose these conditions
as that is beyond their training abilities. (Id. ¶ 136, 137.)
(6) With respect to low blood sugar symptoms, officers were instructed in 2006
that signs include: shallow rapid breathing, rapid full pulse rate, cold clammy
skin, dizziness, confusion, and that an individual may be combative. (Id. ¶ 138.)
(7) Officers are taught that their safety is the primary objective, because if they
are injured, they cannot treat the patient. (Id. ¶ 140.)
(8) Connor and Ceccarini both completed the First Responder course, were
tested on the subject matter, and received scores of 96 percent and 88 percent,
respectively. (Id. ¶ 136.)
(9) The orders and policies of the Police Department are written by the Police
Chief and Lieutenants. They are read aloud at roll call when they are first
enacted. In addition, each officer receives a copy. The rules and regulations of
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the Police Department are written by the Municipal Police Institute, Inc. Each
officer received a copy of them when he or she was hired. (Id. ¶ 145.)
These facts standing unopposed, it becomes clear that Plaintiff’s entire claim
against Agawam and the APD hinges on a statement by Ceccarini at his deposition that
he, personally, would appreciate more training regarding detection of signs of insulin
shock or diabetic shock or symptoms of diabetes. (Ex. 3 (Attached to Pl. SOF) at 78.)
Without more, however, an officer’s indication that he would welcome additional
training is not tantamount to an admission that the training he received was inadequate.
See Santiago v. Fenton, 891 F.2d 373, 381-82 (1st Cir. 1989) (affirming district court’s
denial of summary judgment as to plaintiff’s section 1983 claim against a municipality
because the plaintiff “did not specify how [the police officer] training . . . was
inadequate” nor “suggest that [the] training was inferior by the standards of the
profession.”). As Defendants assert, Plaintiff has proffered no evidence that the
policies and regulations maintained by Agawam and the APD are in any way
insufficient. Nor has Plaintiff argued that Agawam and the APD maintain any custom
that would appear to contradict or undermine any of these policies or regulations.
To the contrary, Plaintiff’s own expert, Glenn Coffin, concedes that the training
materials used by the Department of State Police to train officers “appear to cover
many, if not all, of the various formats that comprise the curriculum of First Responder,”
and, in fact, appear “sufficient.” (Id. ¶ 163.) Moreover, as previously mentioned, Coffin
acknowledged that it is not possible to determine, simply by “[l]ooking at someone
alone,” whether an individual is suffering from low blood sugar or is under the influence

26

of drugs and alcohol and that, a glucometer must be used to test blood sugar levels to
make a determination of hypoglycemia. (Id. ¶¶ 153-54.) Thus, Coffin conceded that
“[i]t would have been difficult” for Connor and Ceccarini to discern whether Plaintiff was
suffering from hypoglycemia as opposed to intoxication, drug use, or some other
condition at the time that they were talking to Plaintiff through his van window. (Id. ¶
155.)
In sum, the court finds that Ceccarini’s solitary statement that he believes
additional training might be useful is insufficient to establish that the need for more
training was “so obvious, and [the] inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have
been reasonably indifferent to the need.’” Jackson, 1994 WL 589617, at *5.
Accordingly, the court will allow Defendants’ motion for summary judgment as to Count
IV.

2. MCRA Claim Against Agawam and the APD (Count V)
Agawam and APD are entitled to summary judgment on the MCRA claim as well
because under Massachusetts law a municipality cannot be sued under the MCRA.
See Kelley v. LaForce, 288 F.3d 1, 11 n.9 (1st Cir. 2002) (citing Howcroft, 747 N.E.2d
at 744) (concluding that, unlike section 1983, a municipality is not a "person" within the
terms of the MCRA). Plaintiff does not mention, much less address, Defendants’
argument in this regard. The court will therefore allow Defendants’ motion for summary
judgment as to Count V.

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IV. CONCLUSION
For the reasons stated, Defendants’ motion for summary judgment is ALLOWED
in its entirety.
IT IS SO ORDERED.
DATED: July 12, 2012
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge

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