Rivera v. Worcester et al

Filing 102

District Judge Timothy S Hillman: ORDER entered Memorandum and Order granting 86 Motion for Summary Judgment. (Burgos, Sandra)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
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Plaintiff,
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v.
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CITY OF WORCESTER, RICHARD BURGOS,)
individually and in his official capacity as a
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police officer in the City of Worcester, JAMES )
O’ROURKE, individually and in his official
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capacity as a police officer in the City of
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Worcester, FRANCIS BARTLEY, individually )
and in his official capacity as a police officer in )
the City of Worcester, and GARY J. GEMME, )
individually and in his official capacity as the
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Police Chief in the City of Worcester,
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Defendants.
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___________________________
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PABLO RIVERA

CIVIL ACTION
NO. 12-40066-TSH

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (Docket No. 86)
February 18, 2015
This action arises out of the arrest and nine-month imprisonment of Plaintiff Pablo Rivera
(“Plaintiff”) for the armed robbery of a convenience store in Worcester, Massachusetts. The
Worcester County District Attorney’s office ultimately chose not to prosecute Plaintiff for the
crime. Upon his release, Plaintiff filed this civil action, alleging that he was falsely arrested by
the Worcester police. The complaint asserts claims for false imprisonment against Officers
Richard Burgos, James O’Rourke, and Francis Bartley (Count I), negligence against the City of
Worcester (Count II), failure to supervise and/or failure to train against the City of Worcester and
Police Chief Gary J. Gemme (Count III), and deprivations of Plaintiff’s constitutional rights

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under 42 U.S.C. § 1983 against all defendants. Defendants have moved for summary judgment
on all counts. For the reasons set forth below, Defendants’ motion for summary judgment is
granted.
Background
In the early morning hours of May 8, 2010, an individual entered the Honey Farms
convenience store located at 64 Vernon Street in Worcester, Massachusetts. Wielding a knife, he
confronted the store clerk and took everything from the store’s cash drawer. The store clerk,
Donald Sutton Jr., reported the armed robbery to the police and initially described the individual
as wearing a black hooded sweatshirt and 4’11” tall. Officer Jesus Candelaria was dispatched to
the scene around 4:50 am. Based on Sutton’s statements and review of the store’s surveillance
video, Candelaria developed a description of the perpetrator to be sent out over police radio. The
suspect was a Hispanic male in his thirties with a medium complexion and chin-strap beard, was
wearing a black hooded sweater, black baseball hat, black peacoat-like jacket, and was carrying a
folding knife approximately four inches long. Candelaria sent the description out over the police
dispatch system as a “be on the lookout” (“BOLO”) announcement, but did not include Sutton’s
original estimate that the perpetrator was only 4’11” tall.
The perpetrator was not apprehended that day, and the case was assigned to Defendant
Francis Bartley, a detective with the Worcester Police Department (WPD). Bartley sent an email
through the WPD system with still pictures of the perpetrator taken from the surveillance video,
asking for assistance in identifying the individual. Defendant Burgos and his partner Defendant
O’Rourke—also detectives with the WPD—reviewed the photos and, on May 20, 2010,
positively identified Plaintiff Pablo Rivera as the individual in the surveillance video. The
identification was based on their familiarity with Plaintiff over several years of work with him as
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a confidential informant. Burgos and O’Rourke first met the Plaintiff over ten years ago when
the Plaintiff had agreed to provide them with information. Officer Burgos came to know Plaintiff
on a personal level, spoke with Plaintiff about his family and drug habits, and tried to help
Plaintiff “get away from the criminal life.” Burgos Dep. 7:22-8:2.
Bartley then compared the surveillance stills with WPD file photos of Plaintiff to confirm
Burgos and O’Rourke’s identification. Upon review, Bartley was positive that Plaintiff was the
individual in the surveillance video. Based on the statements of Officers Burgos and O’Rourke,
as well as his own identification, Bartley applied for an arrest warrant. A neutral clerk-magistrate
in Worcester District Court found probable cause for the warrant to issue on June 3, 2010.
Plaintiff was arrested on June 7, 2010.
The Plaintiff is 5’8” tall. He told the arresting officers that he was innocent and had not
committed any crimes on May 8, 2010. After being held on a high bail, he appeared in Worcester
Superior Court on June 16, 2010 for a bail review hearing arguing that he was not the person
depicted in the surveillance video. The Superior Court judge was shown a still photo from the
video, remarked “[l]ooks like a pretty good picture to me,” and increased Plaintiff’s bail from
$2,500 to $10,000. Plaintiff was indicted on August 20, 2010. In November 2010, Plaintiff filed
a motion to dismiss the indictment; the Superior Court denied the motion, concluding that
sufficient evidence supported the indictment. However, on the eve of trial, the Assistant District
Attorney in charge of the prosecution chose not to proceed with the case, and filed a nolle
prosequi on March 11, 2011.
Upon his release, Plaintiff filed this action against Defendants Bartley, Burgos,
O’Rourke, Gemme and the City of Worcester. Plaintiff asserts that the officers should have
investigated certain discrepancies between his physical features and those of the perpetrator.

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Specifically, Plaintiff cites the officers’ failure to credit Sutton’s statement that the perpetrator
was only 4’11,” notice a tattoo on the perpetrator’s hand in the surveillance video, test for
fingerprints and conduct a lineup or photo array. According to Plaintiff, the failure to take these
steps led to Plaintiff’s false arrest and nine-month imprisonment, and amounts to actionable torts
and violations of Plaintiff’s constitutional rights. Defendants have moved for summary judgment
on all counts.
Discussion
Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that a district court shall grant summary
judgment if the moving party shows, based on the materials in the record, “that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). A factual dispute precludes summary judgment if it is both “genuine” and
“material.” See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). An
issue is “genuine” when the evidence is such that a reasonable factfinder could resolve the point
in favor of the non-moving party. Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). A
fact is “material” when it might affect the outcome of the suit under the applicable law. Id.
The moving party is responsible for “identifying those portions [of the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548 (1968). It can meet its burden either by “offering evidence to
disprove an element of the plaintiff’s case or by demonstrating an ‘absence of evidence to
support the non-moving party’s case.’” Rakes v. U.S., 352 F. Supp. 2d 47, 52 (D. Mass. 2005)
(quoting Celotex, 477 U.S. at 4). Once the moving party shows the absence of any disputed
material fact, the burden shifts to the non-moving party to place at least one material fact into

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dispute. See Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (discussing Celotex, 477
U.S. at 325). When ruling on a motion for summary judgment, “the court must view the facts in
the light most favorable to the non-moving party, drawing all reasonable inferences in that
party’s favor.” Scanlon v. Dep’t of Army, 277 F.3d 598, 600 (1st Cir. 2002). However, the court
should not “credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective.”
Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007).
Counts III and IV: § 1983 Claims against all Defendants
Counts III and IV assert claims against all defendants for violations of Plaintiff’s
constitutional rights under 42 U.S.C. § 1983. Count III alleges that the City of Worcester and
Police Chief Gary Gemme failed to supervise and/or train the city’s police officers.1 Count IV
asserts that Officers Bartley, Burgos, and O’Rourke are individually liable for damages relating
to Plaintiff’s arrest, and that the City of Worcester and Chief Gemme are municipally liable. A
valid § 1983 claim has two essential elements: “the defendant must have acted under color of
state law, and his or her conduct must have deprived the plaintiff of rights secured by the
Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). There
is no dispute that the officers in this case acted under the color of state law. Instead, the § 1983
claims hinge on Plaintiff’s assertion that his arrest was an unreasonable seizure in violation of his
rights secured by the Fourth Amendment of the U.S. Constitution, as applied to the states
through the Fourteenth Amendment.2

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Count III does not specify a cause of action or allege a common law tort, but is simply styled as “Failure to
Supervise and/or Failure to Train by City of Worcester and Police Chief Gary J. Gemme.” The Court interprets this
count as a claim brought under 42 U.S.C. 1983. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct.1197 (1989)
(holding that a failure to train police officers can give rise to municipal liability under § 1983 where the failure to
train amounts to deliberate indifference to the rights of citizens).
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The complaint asserts that the Defendants are liable under § 1983 for violating Plaintiff’s “right under the Fourth
Amendment of the United State [sic] Constitution to be free from unreasonable arrest and his right under the
Fourteenth Amendment of the United States Constitution to due process of law.” Pl.’s Second Am. Compl. ¶ 49.

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An arrest does not run afoul of the Fourth Amendment’s prohibition on unreasonable
seizures as long as it is supported by probable cause. U.S. v. McFarlane, 491 F.3d 53, 56 (1st
Cir. 2007). “Probable cause exists when police officers, relying on reasonably trustworthy facts
and circumstances, have information upon which a reasonably prudent person would believe the
suspect had committed or was committing a crime.” U.S. v. Burhoe, 409 F.3d 5, 10 (1st Cir.
2005) (quoting U.S. v. Young, 105 F.3d 1, 6 (1st Cir. 1997)). It is a “commonsense, nontechnical
conception[] that deal[s] with the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Burhoe, 409 F.3d at 10 (alterations in
original) (quoting Ornelas v. U.S., 517 U.S. 690, 699, 116 S.Ct. 1657 (1996)). The probable
cause inquiry is “based on the facts and circumstances known at the time of arrest rather than in
hindsight.” Burke v. Town of Walpole, 405 F.3d 66, 80 (1st Cir. 2005). An officer “who asserts
the existence of probable cause is not a guarantor either of the accuracy of the information upon
which he has reasonably relied or of the ultimate conclusion that he reasonably drew therefrom.”
Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 255 (1st Cir. 1996).
In cases where, as here, officers obtained a warrant based on probable cause prior to
arresting the suspect, “[a] Fourth Amendment violation may be established if [the plaintiff] can
show that officers acted in reckless disregard, with a ‘high degree of awareness of [the] probable
falsity’” of statements made in support of an arrest warrant. Forest v. Pawtucket Police Dep’t,
377 F.3d 52, 58 (1st Cir. 2004) (citation omitted), cert. denied, 543 U.S. 1149, 125 S.Ct. 1315,
(2005). The reckless disregard standard includes “the intentional or reckless omission of material

However, the complaint does not allege, nor does the record reveal, facts giving rise to a due process claim
independent of the Fourth Amendment claim. Therefore, the Court interprets the complaint’s reference to the
Fourteenth Amendment merely as the vehicle by which Plaintiff asserts his Fourth Amendment rights against state
officials. See Ringuette v. City of Fall River, 146 F.3d 1, 4 (1st Cir. 1998) (observing that the Fourth Amendment
constrains state officers “only by ‘incorporation’ of Fourth Amendment standards into the Fourteenth Amendment”).

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exculpatory facts from information presented to a magistrate.” Burke v. Town of Walpole, 405
F.3d 66, 81 (1st Cir. 2005). To establish that officers submitted a warrant application with
reckless disregard for the truth, the Plaintiff must show that the officers “in fact entertained
serious doubts as to the truth of the allegations” or that the “circumstances evinc[ed] obvious
reasons to doubt the veracity of the allegations” in the application. U.S. v. Ranney, 298 F.3d 74,
78 (1st Cir. 2002) (internal quotations omitted). For omissions of exculpatory evidence,
“recklessness may be inferred where the omitted information was critical to the probable cause
determination.” Golino v. New Haven, 950 F.2d 864, 871 (2d Cir. 1991).
Applying these principles to the present case, the record simply does not contain evidence
from which a reasonable factfinder could conclude that the officers violated Plaintiff’s Fourth
Amendment rights. There is no evidence that the officers entertained serious doubt as to the
identity of the perpetrator at the time of the warrant application. Indeed, the officers each insist
that they were—and still are—certain that Plaintiff was the perpetrator of the Honey Farms
robbery. See, e.g., Burgos Dep. 10:16-17:9; Bartley Dep. 24:5-14, 25:23-26:7; O’Rourke Dep.
6:16-20. Nor do the circumstances suggest obvious reasons to doubt the veracity of the officers’
allegations. Their conclusion that Plaintiff is depicted in the surveillance video has a reasonably
trustworthy basis: Officers Burgos and O’Rourke had worked with Plaintiff for several years and
knew him well, see Burgos Dep. 6:19-8:9, O’Rourke Dep. 9:19-10:17, and Officer Bartley
compared the surveillance video stills to WPD file photographs of Plaintiff and found them to
match. See Bartley Dep. 23:18-24. Although the surveillance stills are somewhat grainy, they
provide a clear enough picture of the perpetrator’s face for a reasonable person to conclude that
the robber bears a strong resemblance to the WPD file photos of Plaintiff. See Docket No. 88,
Exh. 4; Docket No. 88, Exh. 8. This resemblance was affirmed not only by the officers, but by

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the Superior Court judge and Plaintiff’s own criminal defense attorney at Plaintiff’s initial bail
review hearing. See Docket No. 88, Exh. 11, at 2-3.
Plaintiff has not proffered any facts that would lead a reasonable juror to conclude
otherwise. He does not allege that the officers acted with intent or malice in wrongfully accusing
him of the robbery. To be sure, the record suggests that the criminal case against Plaintiff was
dismissed because a video enhancement showed that the perpetrator had a tattoo on his right
hand, a marking Plaintiff does not have. See Bartley Dep. 12:10-13:12. However, Plaintiff has
not produced that video enhancement or any other evidence supporting the veracity of that claim.
Although Plaintiffs’ counsel questioned the officers about whether the perpetrator might have
had a tattoo on his right hand, none of them stated that they saw a tattoo in the surveillance
footage. In fact, Officers Bartley and O’Rourke were adamant that they did not see any tattoo,
see Bartley Dep. 11:11-23, 12:18-13:9, O’Rourke Dep. 12:3-6, 12: 24-13:2, 25:8-15.
Further, although the warrant application did not include the store clerk’s initial height
description of 4’11”, see Docket No. 88, Exh. 9, that fact was not critical to the probable cause
determination because it was overcome by the other circumstances of Officer Bartley’s
investigation. Bartley’s review of the surveillance video allowed him a second estimate at the
perpetrator’s height, see, e.g., Bartley Dep. 10:10-19, and two of his fellow officers positively
identified the perpetrator as Plaintiff, an individual they knew well. See Burgos Dep. 6:19-8:9,
20:7-13; O’Rourke Dep. 9:19-10:17. Officer Bartley then reviewed WPD file photos of Plaintiff
and found them to match the images taken from the surveillance footage. See Bartley Dep.
23:13-24:14, 26:5-7. These circumstances are more than sufficient to establish probable cause.
See, e.g., Kennie v. White Plains Police Depatrment’s Vice Control Unit, 108 F.3d 1369 (2d Cir.
1997) (finding arrest to be “amply supported by probable cause” where officer identified suspect

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from a surveillance photograph); U.S. v. Ramos-Cruz, 667 F.3d 487, 502-03 (4th Cir. 2012)
(affirming finding of probable cause to search home where officer submitted warrant application
based on a fellow officer’s identification of the suspect from a photograph).
Finally, to the extent that Plaintiff offers the affidavit and expert report of Michael
Peddell, it is simply not probative on the question of whether a Fourth Amendment violation
occurred. Peddell opines that the officers should have taken further investigatory steps (such as
taking fingerprints, interviewing witnesses, or conducting a line-up) to identify the perpetrator.
See Docket No. 94, Exh. 8. But even if it is true that the officers could have done their job
differently, that does not establish that they acted with reckless disregard at the time they
submitted the warrant application. The Fourth Amendment analysis must be based on the
circumstances known to the officers at the time, rather than in hindsight. See Burke v. Town of
Walpole, 405 F.3d 66, 80 (1st Cir. 2005).
Viewed in the light most favorable to Plaintiff, the record does not contain evidence from
which a reasonable juror could conclude that the officers acted with reckless disregard for the
truth. Therefore, Plaintiff cannot establish a Fourth Amendment violation, and there is no
material fact dispute that would preclude summary judgment on Plaintiff’s § 1983 claim against
the officers. Further, as Plaintiff has not raised a genuine and material fact dispute regarding a
constitutional violation, he cannot succeed on the municipal liability claims against the City of
Worcester and Police Chief Gemme. See Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir. 1996)
(holding that a municipality cannot be held liable under § 1983 for failure to train absent an
underlying constitutional violation by one of its officers). Therefore, summary judgment is
appropriate on Counts III and IV.

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Count I: False Imprisonment against Bartley, Burgos, O’Rourke
Count I asserts a claim against Officers Bartley, Burgos, and O’Rourke for false
imprisonment. Under Massachusetts law, false imprisonment is the unlawful restraint of a
person’s freedom of movement by force or threats. See Wax v. McGrath, 255 Mass. 340, 342,
1151 N.E. 317 (1926). Courts in this District have stated that the tort requires a plaintiff to show
the “(1) intentional and (2) unjustified (3) confinement of a person, (4) directly or indirectly (5)
of which the person confined is conscious or is harmed by such confinement.” Lucia v. City of
Peabody, 971 F. Supp. 2d 153, 170 (D. Mass. 2013). A police officer will not be liable for false
imprisonment if he had a legal justification for the arrest, see Rose v. Town of Concord, 971 F.
Supp. 47, 51 (D. Mass. 1997) (citing Wax, 255 Mass. at 342), and “[s]uch justification exists if
the officer had probable cause to arrest the suspect.” Sietins v. Joseph, 238 F. Supp. 2d 366, 381
(D. Mass. 2003).
It is undisputed that a warrant based on probable cause was issued by a clerk-magistrate
prior to Plaintiff’s arrest. As described above, Officers Bartley, Burgos, and O’Rourke did not
act with reckless disregard for the truth in submitting the warrant application. Therefore, there
was legal justification for Plaintiff’s arrest and the officers cannot be held liable for false
imprisonment. See Sietins, 238 F.3d at 381 (entering summary judgment on false imprisonment
claim where police offers had probable cause to arrest the plaintiff); Rose, 971 F. Supp. at 51-52
(same). Officers Bartley, Burgos and O’Rourke are entitled to summary judgment on Count I.
Count II: Negligence against City of Worcester
Count II asserts that the City of Worcester was negligent by (1) failing to investigate
evidence that suggested Plaintiff was not the perpetrator of the armed robbery, and (2) failing to

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properly supervise the officers responsible for Plaintiff’s arrest. Defendants argue that the
Massachusetts Tort Claims Act (MTCA) prohibits municipal liability in this case.
The MTCA provides that “[p]ublic employers shall be liable for injury or loss of property
or personal injury or death caused by the negligent or wrongful act or omission of any public
employee while acting within the scope of his office or employment.” M.G.L. c. 258, § 2.
However, § 10 of the MTCA sets forth several exceptions to this general rule. Section 10(b) is
the discretionary function exception, and bars liability on:
any claim based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a public employer or public employee, acting
with the scope of his office or employment, whether or not the discretion involved is
abused.
M.G.L. c. 258, § 10(b). In Sena v. Commonwealth, the Massachusetts Supreme Judicial
Court (“SJC”) held that “the conduct of law enforcement officials in investigating potentially
criminal conduct and in seeking warrants for the arrest of those whom they investigate are
discretionary functions and therefore fall within the exception in § 10(b).” 417 Mass. 250, 257,
629 N.E.2d 986 (1994). The SJC noted, in dicta, that § 10(b) may not shield officers who violate
officially established departmental procedures during their investigations, or those who
recklessly misstate or omit relevant information in a warrant application. Id. at 257 n.5.
The Court agrees with Defendants that the MTCA bars Plaintiff’s negligence claim. First,
Plaintiff has not raised a material fact issue on the negligence claim as it pertains to the officers’
investigation. There is no evidence in the record that the officers did not comply with WPD
procedures during the investigation of the Honey Farms robbery. Although the Peddell report
speculates that the conduct of Bartley, Burgos and O’Rourke may have violated proper
investigative protocols, it does not identify a single WPD departmental procedure. In fact, the
report expressly acknowledges that its conclusions are based on standards of other police
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departments, because Peddell lacked access to the relevant WPD policies. See Docket No. 94,
Exh. 8, at 5. The assertion that the officers violated official WPD procedures is the type of
empty, speculative conclusion that courts must not credit. See Medina-Rivera v. MVM, Inc., 713
F.3d 132, 136 (1st Cir. 2013) (observing that the non-moving party “cannot rely on speculation
to avoid summary judgment”). Further, for the reasons stated above, the record is void of
evidence that would establish a reckless omission of relevant information from the warrant
application.
Second, to the extent that Plaintiff’s negligence claim asserts that the City of Worcester
failed to properly supervise the officers, it is also barred by the MTCA. Section 10(j) prohibits
liability on:
any claim based on an act or failure to act to prevent or diminish the harmful
consequences of a condition or situation, including the violent or tortious conduct of a
third person, which is not originally caused by the public employer or any other person
acting on behalf of the public employer.
M.G.L. c. 258 § 10(j). The SJC has made clear that this provision bars negligence actions
based on failure to supervise. See Bonnie W. v. Commonwealth, 419 Mass. 122, 125-26, 643
N.E.2d 424 (1994). Such claims are “based on the failure to prevent or mitigate a harm, rather
than participation in the initial injury-causing circumstance,” and therefore fall within the net
cast by § 10(j). Ward v. City of Boston, 367 F. Supp. 2d 7, 16 (D. Mass. 2005). Consequently,
Plaintiff’s claim for negligent supervision fails, and judgment will enter as a matter of law on
Count II.

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Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Docket No. 86)
is granted.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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