Gold v. Poccia et al
Filing
64
MEMORANDUM AND ORDER adopting Report and Recommendations re 45 Report and Recommendations.; granting in part and denying in part 56 Motion to Vacate ; denying 14 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 9/21/2018. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
ANDREW GOLD,
)
)
Plaintiff,
)
)
v.
)
)
JAMES POCCIA, Alias, Personally,
)
and in His Official Capacity as a )
Police Officer for the Town of
)
Coventry, RI; BENJAMIN SEDAM,
)
Alias, Personally, and in Official )
Capacity as a Police Officer for
)
the Town of Coventry, RI;
)
DAVID NELSON, Alias, Personally,
)
and in Official Capacity as a
)
Police Officer for the Town of
)
Coventry, RI; RANDY POLION, Alias, )
Personally, and in Official
)
Capacity as a Police Officer for
)
The Town of Coventry, RI; and
)
THE TOWN OF COVENTRY, RI, Through )
Its Finance Director,
)
ROBERT THIBEAULT,
)
)
Defendants.
)
___________________________________)
C.A. No. 17-104 WES
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Magistrate Judge Patricia A. Sullivan’s
Report and Recommendation (“R&R”) (ECF No. 45), which recommends
that Defendants’ Motion for Summary Judgment (ECF No. 14) be
granted in part and denied in part.
In light of the R&R’s split
recommendations (with aspects adverse to both parties), Plaintiff
and Defendants both objected (ECF Nos. 50, 51). Additionally
Plaintiff has filed a Motion to Vacate the Magistrate Judge’s Order
Denying his Motion In Limine (“Motion to Vacate”) (ECF No. 56).
After careful review of the R&R and the relevant papers1, the Court
accepts
the
R&R,
over
both
parties’
objections,
and
denies
Plaintiff’s Motion to Vacate.
At
the
outset,
Plaintiff
concedes
that
summary
judgment
should enter for Defendants the Town of Coventry, David Nelson,
and Randy Polion.
(Pl.’s Mem. in Supp. Obj. to R. & R. (“Pl.’s
Mem.”) 3, ECF No. 52.)
He also admits that summary judgment should
enter for Defendants with respect to his state law claims for
larceny, computer theft, tampering, conspiracy, and extortion.
(Id.)
Thus,
these
need
no
discussion.
The
remainder
Plaintiff’s objection proffers several attacks on the R&R.
of
None
has merit.
First, Plaintiff spends nearly twenty-seven pages of his
forty-one-page memorandum challenging Magistrate Judge Sullivan’s
denial of his Motion in Limine (ECF No. 20) — a denial that occurred
by text order on June 13, 2018.
Putting aside the merits of
Plaintiff’s motion in limine, the window of time for Plaintiff to
challenge Magistrate Judge Sullivan’s order on this nondispositive
Where an objection has been properly filed, the Court
reviews de novo an R&R addressing a dispositive motion.
See
Emissive Energy Corp. v. SPA-Simrad, Inc., 788 F. Supp. 2d 40, 42
(D.R.I. 2011); Fed. R. Civ. P. 72(b)(3).
1
2
motion has passed.
See DRI LR Cv 72 (“An objection to an order or
other ruling by a magistrate judge in a nondispositive matter
. . . shall be filed and served within 14 days after such order or
ruling is served.”).
Plaintiff had until June 27, 2018, to object
to Magistrate Judge Sullivan’s denial of his motion in limine.
He
waited until a month later on July 27, 2018, raising the issue in
his supporting memorandum to his objection to the R&R. (See Pl.’s
Mem. in Supp. of Obj. to R&R, ECF No. 52).
He belatedly raised
the issue again in his Motion to Vacate filed on August 14, 2018.
(See Pl.’s Mot. to Vacate Order on Mot. in Lim., ECF No. 56).
such,
Plaintiff
has
waived
the
issue,
and
Magistrate
As
Judge
Sullivan’s text order of June 13, 2018, stands. Moreover, this
Court reviews a magistrate judge’s order on a nondispositive
motion, like a motion in limine, for clear error.
See Fed. R.
Civ. P. 72(a). Even if Plaintiff had timely and properly objected,
Magistrate
Judge
Sullivan’s
text
erroneous” or “contrary to law.”
order
is
neither
“clearly
See id.
Next, Plaintiff objects to the recommendation that summary
judgment enter as to Plaintiff’s federal and state law false arrest
claims.
(Pl.’s Mem. 27.)
He suggests that Magistrate Judge
Sullivan erred because the R&R “failed to recount and closely
consider all relevant evidence he adduced showing his seizure/de
facto arrest, and made an erroneous determination of law that he
3
was not seized/arrested de facto because he simply could have left
the
scene,
at
Defendants.”
the
price
(Id. at 28.)
of
surrendering
his
cellphone
to
Plaintiff also complains about the
R&R’s alternative holding that disposes of his claims on the basis
of qualified immunity.
(Id. at 33.)
Plaintiff’s arguments fail.
At the outset, Plaintiff grounds
his challenge to the R&R on a flawed premise that a seizure always
constitutes a de facto arrest.
(See id. 28-29 (using “seizure”
interchangeably with “de facto arrest”).)
Not so.
The law, of
course, also contemplates “lesser seizures generally known as
investigative or Terry stops, which require a lesser reasonable
suspicion.” United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997).
However,
if
a
seizure
occurred
here
at
all,
how
the
Court
classifies it (whether a Terry stop or otherwise) is of no moment
because the record supports a finding of probable cause.
“[P]olice officers can justifiably rely upon the credible
complaint by a victim to support a finding of probable cause.”
Forest v. Pawtucket Police Dep’t, 377 F.3d 52, 57 (1st Cir. 2004).
Indeed, the First Circuit has articulated:
Victims’ complaints are a prime source of investigatory
information for police officers.
In the absence of
circumstances that would raise a reasonably prudent
officer’s antennae, there is no requirement that the
officer corroborate every aspect of every complaint with
extrinsic information. The uncorroborated testimony of
a victim or other percipient witness, standing alone,
4
ordinarily can support a finding of probable cause.
Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 10 (1st Cir. 2004).
And, in this context, the critical point in time for inquiring
what officers knew is “the moment of the arrest.”
Fernández-
Salicrup v. Figueroa-Sancha, 790 F.3d 312, 324 (1st Cir. 2015)
(quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249,
254 (1st Cir. 1996)).
Here, it is not disputed that Officer Poccia
arrived at the scene in response to the employer’s complaint that
Plaintiff had attempted to keep company property after being fired.
(R. & R. 5 ECF No. 45; Exh. In Supp. of Mem. In Opp. To Def’s Mot.
Summ. J. 5, ECF No. 33.)
This suffices to support probable cause.
Even if there was no probable cause, the R&R nevertheless
correctly recommends that the officers’ alleged conduct is covered
by
qualified
immunity.
Officers
“are
entitled
to
qualified
immunity [if] they ‘reasonably but mistakenly conclude[d] that
probable cause [wa]s present.’”
District of Columbia v. Wesby,
138 S. Ct. 577, 591 (2018) (second and third alterations in
original)(quoting
(1987)).
Anderson
v.
Creighton,
483
U.S.
635,
641
The Court is satisfied, then, that “a reasonable police
officer under the same or similar circumstances,”—e.g., responding
to a complaint that an employee was refusing to give back company
property—would not have “understood the challenged act or omission
to contravene the discerned constitutional right.”
5
Burke v. Town
of Walpole, 405 F.3d 66, 77 (1st Cir. 2005) (quoting Limone v.
Condon, 372 F.3d 39, 44 (1st Cir. 2004)).
Defendants’ objection asks the Court to reject the R&R’s
recommendation that summary judgment be denied as to Plaintiff’s
42 U.S.C. § 1983 claim for the alleged seizure of the cell phone.
First, Defendants contest Magistrate Judge Sullivan’s conclusion
that Plaintiff’s cell phone seizure claim is not time barred.
(Defs.’ Mem. in Supp. Obj. to R. & R. (“Defs.’ Mem.”) 2-4. ECF No.
51; see also R. & R. 17-18.)
Defendants also challenge Magistrate
Judge Sullivan’s recommendation that trial-worthy factual issues
remain, both with respect to the merits of the Fourth Amendment
claim and qualified immunity.
(Defs.’ Mem. at 5-10.)
Defendants’ argument that Plaintiff’s claim is time-barred
attempts to inject a heightened standard onto Rule 15’s relationback requirement.
(Id. at 1-5.)
As Magistrate Judge Sullivan
noted, an amended pleading “relates back” when “the amendment
asserts
a
claim
or
defense
that
arose
out
of
the
conduct,
transaction, or occurrence set out — or attempted to be set out —
in the original pleading.” (R. & R. 18, ECF No. 45 (quoting Fed.
R. Civ. P. 15(c)(1)(B))).
liberal thrust.
Courts have afforded Rule 15(c) a
See, e.g., Clipper Exxpress v. Rocky Mountain
Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259 n.29 (9th Cir. 1982)
(“We are mindful that the relation back doctrine of Rule 15(c) is
6
to be liberally applied.”); Tri-Ex Enter. Inc. v. Morgan Guar.
Trust Co. of New
York, 586 F. Supp. 930, 932 (S.D.N.Y. 1984)
(describing Rule 15(c) as a “very liberal standard”).
Supreme
Court
has
interpreted
the
Rule
to
And the
“depend[]
on
the
existence of a common core of operative facts uniting the original
and newly asserted claims.”
(2005).
Mayle v. Felix, 545 U.S. 644, 646
“A common core of operative facts exists if ‘the opposing
party has had fair notice of the general fact situation and legal
theory
upon
which
the
amending
party
proceeds.’”
Tenon
v.
Dreibelbis, 190 F. Supp. 3d 412, 416 (M.D. Pa. 2016) (quoting
Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004)).
“Thus, new claims will relate back if they ‘restate the original
claim
with
greater
particularity
or
amplify
the
factual
circumstances surrounding the pertinent conduct, transaction or
occurrence in the preceding complaint.’”
Id. (quoting Bensel, 387
F.3d at 310).
Comparing Plaintiff’s First Amended Complaint to his original
Complaint makes clear that Plaintiff does precisely that. (Compare
Compl. ¶¶ 5-8 (citing 42 U.S.C. § 1983 and noting that Plaintiff
“was commanded that if he did not immediately relinquish his phone
to the agent of the Coventry Police Department that he would be
arrested and his cell phone confiscated anyway”), with First Am.
Compl.
¶¶
9,
31(a)
(alleging
“[u]nconstitutional
7
search
and
seizure
(false
data...)”)).
arrest
and
seizure
of
private
cellphone
Plaintiff satisfies the relation-back requirement.
And Defendants “had fair notice of the general fact situation and
legal theory upon which the amending party proceeds.”
F.3d at 310.
Bensel, 387
Because Plaintiff “merely expounds upon and further
details the factual scenario and . . . claims that were roughly
sketched in [his] original Complaint,” Defendants’ statute-oflimitations argument fails. Id.
The Court next considers Defendants’ objection to Magistrate
Judge
Sullivan’s
recommendation
that
“there
are
trial
worthy
issues of fact regarding the nature of plaintiff’s interest in the
cell phone and reasonableness of the alleged seizure.”
Mem. 5 (citing R. & R. 14).)
(Defs.’
Defendants try to undercut the
evidence that creates a factual dispute as to who owns the cell
phone, while injecting a hypothetical scenario which asks the Court
to draw inferences for Defendants. Finally, while conceding “there
may be a factual dispute as to plaintiff’s interest in the cell
phone created by plaintiff’s post hoc, cagey and muddled claims of
ownership,” Defendants urge that their conduct is protected by
qualified immunity.
(Def.’s Mem. 10.)
Defendants’ objection to Magistrate Judge Sullivan finding of
a material factual dispute amounts to an improper attack on the
weight or credibility of the evidence.
8
The First Circuit long ago
parted with the type of protest made by Defendants:
[T]he decisive criterion on a summary judgment motion is
not a comparative one. Fed. R. Civ. P. 56 does not ask
which party's evidence is more plentiful, or better
credentialled,
or
stronger. Rather,
the
rule
contemplates an abecedarian, almost one dimensional,
exercise geared to determining whether the nonmovant's
most
favorable evidence and
the
most
flattering
inferences which can reasonably be drawn therefrom are
sufficient to create any authentic question of material
fact. Among other things, apart from that which may be
inherently incredible, the nonmoving party is entitled
“to have the credibility of his evidence as forecast
assumed, his version of all that is in dispute accepted,
[and] all internal conflicts in [the evidence] resolved
favorably to him....”
Greenburg v. P.R. Maritime Shipping Auth., 835 F.2d 932, 935-36
(1st Cir. 1987) (vacating grant of summary judgment despite “rather
frail”
evidence
including
testimony
containing
“flagrant
contradictions”) (quoting Charbonnages de France v. Smith, 597
F.2d 406, 414 (4th Cir. 1979)).
clear,
as
Magistrate
Judge
A review of the evidence makes
Sullivan
found,
that
trial-worthy
factual issues persist, precluding summary judgment as to the
alleged unconstitutional seizure of the cell phone.
Similarly,
for
the
reasons
Magistrate
Judge
Sullivan
articulated, summary judgment should not enter with respect to
qualified immunity on this issue.
(See R. & R. 14-17.)
Although
“the immunity question should be resolved, where possible, in
advance of trial,” this case presents “factual issues, potentially
9
turning on credibility, that must be resolved by the trier of
fact.”
Swain v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997).
Accordingly, this Court ACCEPTS the R&R (ECF No. 45) and
ADOPTS its recommendations and reasoning.
Defendants’ Motion for
Summary Judgment (ECF No. 14) is, therefore, GRANTED in part and
DENIED in part as outlined by the R&R. Additionally, the Court
DENIES Plaintiff’s Motion to Vacate (ECF No. 56).
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date:
September 21, 2018
10
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