Sirois v. L'Heureux et al

Filing 20

MEMORANDUM AND ORDER granting in part and denying in part 11 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 12/21/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
JOANNA L’HEUREUX, et al.
)
)
Defendants.
)
___________________________________)
DAVID SIROIS,

C.A. No. 14-472 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before

this

Court

is

Defendants’

Motion

for

Summary

Judgment. (ECF No. 11.) Plaintiff has filed a Response (ECF No.
17) and Defendants have filed a Reply (ECF No. 18). For the
reasons set forth below, Defendants’ Motion is GRANTED in part
and DENIED in part.
I. Summary Judgment Standard
Summary

judgment

is

appropriate

where

“the

movant

shows

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). This includes situations where a party “fails to make
a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In determining whether there exists a
genuine issue of material fact, this Court must review the facts
“in the light most favorable to the non-moving party.” ZambranaMarrero

v.

Suarez-Cruz,

172

F.3d

122,

125

(1st

Cir.

1999).

However, neither party may rely solely on allegations made in
the complaint or their briefs, and must instead supply specific
facts “citing to particular parts of materials in the record . .
. .” Fed. R. Civ. P. 56(c)(1)(A).
II.

Background
On October 24, 2011, a young girl was riding her bike to

school

through

the

public

parking

lot

adjacent

to

the

Hank

Soures Complex. (Defs.’ Statement of Undisputed Facts ¶ 1, ECF
No.

12. 1)

The

girl

reported

that,

while

riding

through

the

parking lot, a man “drove up to her in his van, got out and
asked her to come over to him.” (Id. ¶ 2.) Specifically, the man
said “hey, come here.” (Detective Rosciti Statement, ECF No. 113.) Frightened by the encounter, the girl went home and told her
mother what had happened. (Id.) The mother called the police,
1

Defendants filed a Statement of Undisputed Facts (ECF No.
12) which the Plaintiff has not contested. Therefore, while the
Court views the facts in the light most favorable to the
Plaintiff, the facts set forth in Defendants’ Statement of
Undisputed Facts are deemed admitted. See LR Cv 56(a)(3) (“For
purposes of a motion for summary judgment, any fact alleged in
the movant’s Statement of Undisputed Facts shall be deemed
admitted unless expressly denied or otherwise controverted by a
party objecting to the motion.”).
2

and

several

officers,

including

Detective

Donti

Rosciti

(“Detective Rosciti”), responded to the parking lot.
After arriving in the parking lot, the officers found David
Sirois (“Sirois”). (Defs.’ Statement of Undisputed Facts ¶ 3,
ECF No. 12.) Both the girl and her mother came to the parking
lot, where the girl identified Sirois as the individual who had
approached her. (Id. ¶ 4.) The officers then took Sirois to the
police station for questioning and later charged him with child
enticement. (Id. ¶¶ 6-11; Police Record, ECF No. 17-2.) While
the

charges

Record,

ECF

against
No.

Sirois

17-2),

the

were
fact

eventually
of

Sirois’

dropped
arrest

(Police
was

made

public by The Times newspaper. (ECF No. 17-7.)
Sirois has brought suit against the City of Pawtucket and
various

Pawtucket

Police

officers

for

unlawful

arrest

(Claim

(I), false imprisonment (Claim II), malicious prosecution (Claim
III), intentional infliction of emotional distress (Claim IV),
negligent infliction of emotional distress (Claim V), defamation
(Claim VI), and a violation of the Fourth Amendment under 42
U.S.C. § 1983 (Claim VII). (Complaint, ECF No. 1-2.) Defendants
have brought a motion for summary judgment for all of Sirois’
claims. Each claim is addressed below.

3

III. Discussion
A. Intentional Infliction of Emotional Distress (Claim IV)
and Negligent Infliction of Emotional Distress (Claim V)
Sirois’

intentional

infliction

of

emotional

distress

(“IIED”) and negligent infliction of emotional distress (“NIED”)
claims

require

resulting

from

DiSandro,

688

Sirois
the

A.2d

to

“prove

alleged
830,

physical

improper

838

(R.I.

conduct.”

1997)

symptomatology
Vallinoto

(discussing

an

v.
IIED

claim); Clift v. Narragansett Television L.P., 688 A.2d 805, 813
(R.I. 1996) (“[I]n Rhode Island no difference exists between
negligent

and

intentional

infliction

of

emotional

distress

claims in respect to the need for physical symptomatology.”).
This requires “evidence of the requisite physical manifestations
of [his] alleged emotional distress.” DiBattista v. State, 808
A.2d 1081, 1089 (R.I. 2002). In addition, Sirois must provide
some evidence that establishes causation. Vallinoto, 688 A.2d at
838.
To prove causation under Rhode Island law, expert testimony
is required. In the past, the First Circuit has held that the
expert

testimony

requirement

was

an

open

question

in

Rhode

Island:
Rhode Island case law is silent on the question of the
necessity of expert testimony to prove the causation
element of IIED. Section 46 of the Restatement
4

(Second) of Torts, on which Rhode Island's IIED claim
is patterned, also fails to provide any clues; nowhere
in § 46 is the introduction of expert medical
testimony required or even mentioned. Despite this
silence, however, we find that under the particular
facts of this case expert medical testimony was
indispensable to the proof of causation.
Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1187 (1st Cir.
1996).
However, the Rhode Island Supreme Court has subsequently
made clear that claims of “intentional infliction of emotional
distress . . . require . . . competent expert medical opinion
regarding origin, existence, and causation.” Vallinoto, 688 A.2d
at 839. In the Vallinoto case, the Rhode Island Supreme Court
held that a directed verdict was appropriate where plaintiff
failed “to produce at trial any admissible competent medical
evidence showing objective physical manifestation of her alleged
psychic

injuries

[defendant’s]

that

actions.”

proximately
Id.

at

838.

resulted
The

to

Court

her

from

found

that

plaintiff’s testimony was insufficient:
Although [plaintiff] was competent to testify that she
suffered psychic problems and allegedly experienced
physical symptomatology therefrom, she was, however .
. . not qualified to testify that those specifically
alleged psychic and physical ills were proximately
caused by [defendant’s] actions. The origin and the
causal connection of those psychic and physical
complaints . . . required expert medical opinion.

5

Id.

Additionally,

the

Court

found

that

the

testimony

of

plaintiff’s social worker was insufficient for the same reason:
Her social worker's testimony . . . was inherently
insufficient by reason of its lack of medical-expert
competence and qualification to legally establish the
necessary causal relationship for any of [plaintiff’s]
complaints
of
psychic
injury
and
physical
ills
allegedly resulting from [defendant’s] actions.
Id.
Sirois’ claims suffer from a similar deficiency. The only
evidence Sirois has provided regarding physical symptomology and
causation for his IIED and NIED claims is his own affidavit.
(See Sirois Aff. ¶ 17, ECF No. 17-3.) Sirois explains that after
being “arrested and charged with the crime of child enticement
[he]

began

to

experience

depression

like

symptoms,

anxiety

attacks and had difficulty sleeping.” (Id.) However, as in the
Vallinoto case, Sirois is “not qualified to testify that those
specifically alleged psychic and physical ills were proximately
caused

by

[defendant’s]

actions.”

688

A.2d

at

838;

see

also

Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 356 (R.I. 1986)
(medical evidence must “exclude other unrelated potential causes
of plaintiff’s . . . injury”).
In his brief, Sirois responds to this deficiency by noting
that he was “seen by Dr. Marsha Wold on November 17, 2014 and
was diagnosed with a major depressive disorder, PTSD, as well as
6

a panic disorder with agoraphobia.” (Pl.’s Resp. 15, ECF No. 171.) But in making this assertion, Sirois cites only his own
affidavit.
Sirois’

This

is

affidavit

inadequate

does

not

for

even

several

mention

reasons.

Dr.

Wold,

First,

let

alone

describe her diagnosis. (See Sirois Aff., ECF No. 17-3.) Second,
while

Sirois

symptoms,

claims

there

is

that
no

Dr.

Wold

suggestion

has

that

identified

Dr.

Wold

certain

has

made

a

determination regarding the cause of those symptoms.
Lastly,

even

if

Dr.

Wold

had

made

a

causation

determination, and even if that fact was properly documented in
Sirois’ affidavit, any statement by Sirois describing Dr. Wold’s
conclusions

constitutes

inadmissible

hearsay.

As

the

First

Circuit has made clear,
the [Plaintiff’s] account of what [he] think[s] (or
hope[s]) that [a doctor’s] testimony might be—amounts
to inadmissible hearsay. It is crystal clear that
[Plaintiff]
had
no
scientific
knowledge
as
to
causation and was incompetent to testify to any of the
matters stated. Hearsay evidence, inadmissible at
trial, cannot be considered on a motion for summary
judgment.
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990); see
also Fed. R. Civ. P. 56(c)(4). Therefore, as Sirois has provided
insufficient evidence with regards to physical symptomology and
causation,

summary

judgment

in

favor

appropriate for the IIED and NIED claims.
7

of

Defendants

is

B. Defamation (Claim VI)
A

defamation

claim

requires

proof

of

the

following

elements: “(1) the utterance of a false and defamatory statement
concerning another; (2) an unprivileged communication to a third
party;

(3)

damages,

fault

unless

amounting
the

to

least

is

statement

at

negligence;

actionable

and

irrespective

(4)
of

special harm.” Nassa v. Hook-SupeRx, Inc., 790 A.2d 368, 373
n.10 (R.I. 2002). In this case, after Sirois’ arrest, The Times
published the following in its “Police Blotter” section:
David Sirois . . . was arrested on charges of
enticement of children – first offense, following an
incident in which he allegedly tried to lure several
children into his truck . . , police said. Police say
they are investigating whether or not there is a link
between this suspect, who drove a silver truck, and
other recent incidents involving a male trying to lure
children into a red truck that occurred in Pawtucket
and Cumberland.
(Pl.’s Resp. Ex. F, ECF No. 17-7.) Sirois alleges that, because
he had only been arrested for attempting to lure a single child,
and

not

“several

children,”

the

statement

is

false

and

defamatory.
Problematically, the only evidence that any member of the
police department actually provided a statement to The Times is
the newspaper article itself. That newspaper article is hearsay
and cannot be considered as competent evidence at the summary
judgment stage. See, e.g., Horta v. Sullivan, 4 F.3d 2, 9 (1st
8

Cir.

1993)

(“[T]he

newspaper

article

may

not

be

regarded

in

determining whether a genuine issue of material fact exists.”).
Specifically in the context of a defamation claim, courts have
held

that

the

newspaper

article

that

is

the

subject

of

the

defamation lawsuit is, by itself, insufficient evidence that a
defendant

made

an

allegedly

defamatory

statement.

See,

e.g.,

Fitzgerald v. Town of Kingston, 13 F. Supp. 2d 119, 123 (D.
Mass. 1998) (“The article is inadmissible hearsay . . . and thus
meaningless on a motion for summary judgment, see Fed. R. Civ.
P.

56(e).”).

Summary

judgment

in

favor

of

Defendants

is

therefore appropriate for Sirois’ defamation claim.
C.
II),

Unlawful

Malicious

Arrest

(Claim

Prosecution

I),

(Claim

False
III),

Imprisonment
and

Violation

(Claim
of

42

U.S.C. § 1983 (Claim VII).
Sirois

has

imprisonment,

brought

malicious

claims

for

prosecution,

unlawful
and

a

arrest,

violation

false
of

the

Fourth Amendment under 42 U.S.C. § 1983. All of these claims
hinge on whether the officers who arrested Sirois had probable
cause to make that arrest. See Mann v. Cannon, 731 F.2d 54, 62
(1st Cir. 1984) (to prove a Fourth Amendment violation pursuant
to

§

1983,

a

“plaintiff

must

show

at

a

minimum

that

the

arresting officers acted without probable cause”); Beaudoin v.
Levesque, 697 A.2d 1065, 1067 (R.I. 1997) (“Probable cause in
9

[Rhode Island] law is a necessary element in false arrest, false
imprisonment, and malicious prosecution claims.”).
In

making

this

establish

whether

occurred.

The

“whether

a

determination,

Sirois

test

for

reasonable

was

the

arrested

whether
person

an

in

Court

and

“arrest”
the

first

when

that

has

suspect’s

must
arrest

occurred
shoes

is

would

understand herself to be subject to restraints comparable to
those associated with an arrest.” Morelli v. Webster, 552 F.3d
12, 20 (1st Cir. 2009). Neither party has provided the Court
with deposition testimony of the individuals involved in this
case. Therefore, to determine whether an arrest took place, and
the exact moment when that arrest occurred, the Court is left
only with Sirois’ Affidavit (ECF No. 17-3), Detective Rosciti’s
Witness Statement (ECF No. 11-3), and Defendants’ Statement of
Undisputed Facts (ECF No. 12).
Detective

Rosciti’s

Witness

Statement

and

Defendants’

Statement of Undisputed Facts provide essentially no explanation
of

whether

or

when

Sirois

was

formally

placed

under

arrest.

Sirois’ Affidavit, on the other hand, describes his encounter
with the Pawtucket Police as follows:
I was asked if I would voluntarily report to the
Pawtucket Police Department. I agreed. It then became
clear to me that the Patrol Officers wanted me to ride
with them to the police station. . . . I was escorted
by a patrol officer into my place of employment. At
10

that time, it became clear to me that I was no longer
able to refuse to appear at the police department. . .
. [A]fter I exited my place of employment, I was
frisked, handcuffed and placed in the back of the
police vehicle.

(Sirois Aff. ¶¶ 9-12, ECF No. 17-3.) Viewing the evidence in the
light

most

favorable

to

Sirois

for

the

purposes

of

summary

judgment, the Court will assume that Sirois was placed under
arrest at the moment he felt that he “was no longer able to
refuse to appear at the police department.” (Id.)
The

question

becomes

whether

the

arresting

officers

had

probable cause to believe Sirois had committed a crime at the
time of his arrest. There is probable cause if, at the time of
arrest, “the facts and circumstances within the relevant actors’
knowledge and of which they had reasonably reliable information
were adequate to warrant a prudent person in believing that the
object

of

his

suspicions

had

perpetrated

or

was

poised

to

perpetrate an offense. Roche v. John Hancock Mut. Life Ins. Co.,
81 F.3d 249, 254 (1st Cir. 1996). While this requires more than
“inarticulate hunches,” Terry v. Ohio, 392 U.S. 1, 22 (1968),
“the

determination

does

not

require

scientific

certainty.”

Roche, 81 F.3d at 254. “The preferred approach is pragmatic; it
focuses on the ‘factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians,
11

act.’”

Id.

(quoting

Illinois

v.

Gates,

462

U.S.

213,

231

(1983)).
In the context of a civil lawsuit against state officials,
the probable cause determination is “inextricably linked” with
the doctrine of qualified immunity. Menebhi v. Mattos, 183 F.
Supp. 2d 490, 500 (D.R.I. 2002). Qualified immunity “protects
government officials from 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.”
(D.R.I.

Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 211
2009),

aff'd

640

F.3d

388

(1st

Cir.

2011)

(quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Courts address
qualified immunity claims as follows:
Determining whether a public official is entitled to
qualified immunity is a two-step inquiry. Under this
test, a court must decide: (1) whether the facts
alleged or shown by the plaintiff make out a violation
of a constitutional right; and (2) if so, whether the
right was clearly established at the time of the
defendant’s alleged violation. The clearly established
prong has two aspects: (1) the clarity of the law at
the time of the alleged civil rights violation and (2)
whether given the facts of the particular case a
reasonable defendant would have understood that his
conduct
violated
the
plaintiffs'
constitutional
rights. A negative answer to either question results
in a finding of qualified immunity for the official
asserting the defense.
Id.

at

211–12

(internal

quotations,

citations

and

brackets

omitted); see also Estrada v. Rhode Island, 594 F.3d 56, 63 (1st
12

Cir. 2010) (“If an officer is found to be deserving of qualified
immunity under federal law, he will also be granted qualified
immunity

for

the

same

claim

under

Rhode

Island

law.”).

As

qualified immunity is not a defense at trial, but rather an
assertion of immunity from the lawsuit altogether, the Supreme
Court has “repeatedly . . . stressed the importance of resolving
immunity

questions

at

the

earliest

possible

stage

in

litigation.” Callahan, 555 U.S. at 232. Therefore, the objective
reasonableness

of

an

officer’s

conduct

for

the

purposes

of

qualified immunity is appropriately resolved by the Court at the
summary judgment stage. See id. at 231-32.
In this case, the Court first addresses whether the right
at issue was “clearly established.” See Lopera, 652 F. Supp. 2d
at 212 (“A judge may skip ahead and decide whether the right at
issue

was

clearly

established

without

deciding

whether

that

right was violated.”). The parties do not dispute that there was
clarity
under

regarding

the

Fourth

the

probable

Amendment

at

cause
the

requirement

time

of

for

Sirois’

arrest
arrest.

Therefore, this Court need only determine whether an objectively
reasonable

officer

would

have

known

that

arresting

Sirois

violated the probable cause requirement. Menebhi, 183 F. Supp.
2d

at

499

(“[L]aw

enforcement

officers

who

reasonably

but

mistakenly conclude that probable cause is present are entitled
13

to

immunity.”)

Unfortunately,
information

any

officers

who

Defendants’

the

on

provided

(internal

quotations

evidence

that

topic.

deposition
arrested

Statement

in

the

Again,

of

the

emphasis

record

omitted).

provides

little

as

Defendants

have

not

or

testimony

Sirois,

and

affidavits

from

the

Court

Undisputed

Facts

is

left

(ECF

only

No.

with

12)

and

Detective Rosciti’s Witness Statement (ECF No. 11-3).
Both of those statements establish that: (1) the alleged
victim was a young girl (under the age of sixteen); (2) she was
approached by a man she did not know who asked her to come over
to his car; and (3) she later identified Sirois for the police.
(Detective Rosciti Statement, ECF No. 11-3; Defs.’ Statement of
Undisputed Facts ¶¶ 1-4, ECF No. 12.) Under these undisputed
facts, there is little doubt that the arresting officers had
reason

to

believe

that

the

alleged

victim

had

some

sort

of

encounter with Sirois. See, e.g., B.C.R. Transp. Co. Inc. v.
Fontaine,

727

F.2d

7,

10

(1st

Cir.

1984)

(“[P]robable

cause

determinations predicated on information furnished by a victim
are generally considered to be reliable . . . .”). However, what
is

much

less

clear

is

whether

the

arresting

officers

had

probable cause to believe that Sirois had committed the crime
for which he was arrested (child enticement).

14

In Rhode Island, a person is guilty of child enticement if
they “persuade . . . a minor child under the age of sixteen (16)
years, . . to [e]nter a vehicle . . . with [the] intent to
engage in felonious conduct against that child . . . .” R.I.G.L.
§ 11-26-1.5(a). Therefore, to arrest Sirois under this statute,
the arresting officers must have had probable cause to believe
that Sirois, when talking to the alleged victim, had the “intent
to

engage

discussed

in

above,

determination
solely

on

felonious

as

in
to

the

Defendants’

conduct

against

reviewing
intent

that

the

arresting

element,

Statement

of

child.”

the

Court

Undisputed

As

was

officer’s
must

rely

Facts

and

Detective Rosciti’s Witness Statement. Neither of those pieces
of evidence provide any details with regard to the facts known
to, or the thought processes of, the arresting officers at the
time of Sirois’ arrest.
For example, with respect to Detective Rosciti 2, this Court
does not know what Detective Rosciti was told by the girl and
her mother (beyond simply identifying Sirois), the substance of

2

Of note, the evidence provided by Defendants does not even
clearly establish which officers formally placed Sirois under
arrest. This makes the Court’s review of the arresting officers’
probable cause determination particularly difficult. However, as
Detective Rosciti was one of the responding officers, and
because Defendants have provided Detective Rosciti’s statement
as evidence, the Court will consider what evidence was known to
Detective Rosciti at the moment of arrest.
15

the conversation between Detective Rosciti and Sirois, or the
basis

of

regards

Detective
both

Sirois

Defendants

while

to

Rosciti’s

point

and
to

credibility

the
the

alleged
fact

determinations
victim.

that

In

Sirois

with

addition,

matched

the

description of a man who had recently attempted to entice other
children in the Pawtucket area, here again, the Court does not
have evidence that this fact was known to the arresting officers
at

the

time

judgment

of

stage

Sirois’
where

all

arrest. 3
facts

Particularly
are

taken

in

at

the

the

summary

light

most

favorable to the non-moving party, the Court will not presume
that

the

arresting

officers

were

aware

of

certain

pieces

of

evidence, or acted reasonably on the basis of that evidence,
without a more clearly developed record.
IV.

Conclusion
For

the

reasons

described

above,

Defendants’

Motion

for

Summary Judgment (ECF No. 11) is GRANTED as to Claim IV (IIED),
Claim V (NIED), and Claim VI (defamation), and DENIED as to
Claim I (unlawful arrest), Claim II (false imprisonment), Claim
3

Detective Rosciti’s statement does note that Sirois’
“description is the same description offered in numerous other
enticements over the past several weeks in Pawtucket.” However,
that statement, which is dated a full two months after Sirois’
arrest, does not make clear whether Detective Rosciti – or any
other arresting officer – was aware of this information at the
time of the arrest, or whether this fact was uncovered after the
arrest took place. (See Detective Rosciti Witness Statement, ECF
No. 11-3.)
16

III

(malicious

prosecution),

and

U.S.C. § 1983).

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: December 21, 2016

17

Claim

VII

(violation

of

42