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
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