Noka v. Charlestown et al

Filing 29

MEMORANDUM AND ORDER: The Court GRANTS the Defendants' Motion for Summary Judgment. (ECF No. 15 .) So Ordered by District Judge Mary S. McElroy on 3/8/2021. (Urizandi, Nisshy)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
BELLA NOKA,
Plaintiff,
v.
TOWN OF CHARLESTOWN;
CHARLESTOWN POLICE
DEPARTMENT; AND JEFFREY S.
ALLEN, individually and in his

Official Capacity as Chief of the
Charlestown Police Department,
Defendants.

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C.A. No. 18-040-MSM-LDA

MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
Before the Court is the Defendants’ Motion for Summary Judgment. (ECF No.
15.) The Plaintiff, Bella Noka, filed a Complaint alleging several equal protection
claims and a claim for negligent infliction of emotional distress against the Town of
Charlestown (the “Town”), the Charlestown Police Department (the “Charlestown
Police”), and the former Chief of the Charlestown Police, Officer Jeffrey Allen
(collectively, the “Defendants”).1 Ms. Noka alleges that the Defendants arbitrarily
denied her police services based on her status as a member of the Narragansett
Indian Tribe (the “Tribe”). (ECF No. 1.)

Ms. Noka also sued Officer Kevin Ryan but moved to dismiss these claims pursuant
to F. R. Civ. P. 41(a)(2). (ECF No. 20.) The parties agreed to a stipulation for partial
dismissal, dismissing all claims against Officer Ryan. (ECF No. 24.) 

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For the reasons stated below, the Court GRANTS the Defendants’ Motion for
Summary Judgment. (ECF No. 15.)
I.

STANDARD OF REVIEW

When making a summary judgment determination, the Court must review the
entire record and consider the facts and inferences in the light most favorable to the
nonmoving party. Cont’l Cas. Co. v. Canadian Univ. Ins. Co., 924 F.2d 370, 373 (1st
Cir. 1991). Federal Rule of Civil Procedure 56(a) dictates that summary judgment
should be granted if “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.” A genuine
dispute of material fact is an issue that “may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
“Genuine issues of material fact are not the stuff of an opposing party’s dreams.
On issues where the nonmovant bears the ultimate burden of proof, [the nonmovant]
must present definite, competent evidence to rebut the motion.” Mesnick v. Gen.

Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (citing Anderson, 477 U.S. at 256–
57; Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). Summary judgment
evidence “cannot be conjectural or problematic; it must have substance in the sense
that it limns differing versions of the truth which a factfinder must resolve at an
ensuing trial.” Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).

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II.

BACKGROUND

Ms. Noka brought this action seeking a declaratory judgment, injunctive relief,
and compensatory and punitive damages.

(ECF No. 1 at 10.) The following

allegations are derived from the Complaint. Id. at 8-10.
In Count I, Ms. Noka alleges that the Defendants violated her right to equal
protection under the Rhode Island Constitution by arbitrarily denying her a public
service based on her status as a Narragansett Indian. Id. at 9 ¶ 57. In Count II, Ms.
Noka alleges that Officer Allen violated her right to equal protection by arbitrarily
denying her a public service based on her racial and ethnic identity as a Narragansett
Indian in violation of the Fourteenth Amendment of the United States Constitution,
under 42 U.S.C. § 1983. Id. at ¶ 58. In Count III, Ms. Noka alleges that the Town
had a discriminatory policy or custom in providing public safety services to
Narragansett Indian people in violation of the right to equal protection under the
Fourteenth Amendment of the United States Constitution. Id. at ¶ 59. And in Count
IV, Ms. Noka alleges that the Defendants’ actions negligently caused her emotional
distress. Id. at ¶ 60.
III.

FACTS

The facts relevant to deciding this Motion for Summary Judgment are largely
undisputed.
Ms. Noka, a member of the Tribe, served as the Chair of the Tribal Election
Committee (“TEC”) in 2013 and 2014. (ECF No. 16 at 1, ¶¶ 1-2.) In this role, she
oversaw the election of the Tribal Council. Id. at ¶ 3. As TEC Chair, Ms. Noka
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received threats from other members of the Tribe before its 2014 election. (ECF No.
16 at 1, ¶ 4.) One member threatened to burn down her home and another threw a
bottle at her during the election. Id. at ¶ 5.2 The results of the 2014 election
disappointed several members of the Tribe who filed grievances which were found to
lack merit. Id. at ¶ 6. The TEC certified the election results, and the elected members
took office in August 2014. Id. at ¶ 7.
Chief Sachem Matthew Thomas of the Tribe requested Ms. Noka attend a
Tribal meeting on January 31, 2015 at the Four Winds Community Center to discuss
the 2014 election. (ECF No. 16 at 2, ¶ 8.) He assured Ms. Noka that Tribal Police
would be at the meeting, but they were not. Id. at ¶ 17. Ms. Noka attended the
meeting, along with Tribal members who were angry about the election results. Id.
at ¶ 9. Several of these Tribal members attacked Ms. Noka, beating her, pulling her
hair, spitting on her, kicking her, and throwing “ice bricks” at her. (ECF No. 23 at 2,
¶¶ 43-45.) Using pepper spray, Ms. Noka escaped the building. Id. at ¶ 46. Outside,
Ms. Noka called 911 and requested that the Rhode Island State Police (the “State
Police”) respond to the incident. (ECF No. 16 at 2, ¶¶ 11, 13.) The 911 dispatcher
notified the Charlestown Police and the State Police. (ECF No. 23 at 2, ¶ 47.) The
Charlestown dispatcher also notified the State Police and the Tribal Police. Id. at ¶¶

Ms. Noka claims she alerted the Charlestown Police of these threats and the bottlethrowing incident, but the Defendants dispute this. (ECF No. 27 at 2, ¶¶ 39, 41.) The
Defendants also argue that any claim from 2014 is outside the statute of limitations.
(ECF No. 15-1 at 7-9.) Ms. Noka does not dispute that these alleged incidents are
outside of the statute of limitations but she proffers them solely as background. (ECF
No. 21-1 at 18-19.) While the Court recognizes them as background, the alleged 2014
claims are not part of its analysis of Ms. Noka’s claims for relief.

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47-48. The State Police did not respond. Id. at ¶ 48. Charlestown Police Officers
Lance Bennett and Thomas Piccirilli arrived on the scene and, at her request,
transported Ms. Noka to the Charlestown Town Hall, where an ambulance was
waiting to take her to the hospital. (ECF No. 16 at 3, ¶¶ 18-20.)3 Ms. Noka suffered
lower limb contusions and a head injury. Id. at ¶ 29. She continued to experience a
frontal headache and vomiting for two weeks following the incident. Id.
Charlestown Police Officer Kevin Ryan arrived at the Four Winds Community
Center and informed Tribal members that they could make a statement or file a
complaint with Charlestown Police, the Tribal Police, or the State Police. (ECF No.
16 at 3, ¶¶ 21-23.) Sometime after Officer Ryan arrived on the scene, a member of
the Tribal Environmental Police, Lt. Spears, arrived to investigate the incident,
purportedly at the request of a member of the Tribal Police. (ECF No. 16 at 3, ¶24;
ECF No. 23 at 3, ¶ 50.) Lt. Spears thanked the Charlestown Police for their presence
and, after a political opponent of Ms. Noka requested that Charlestown Police leave,
Lt. Spears told the Charlestown officers that he “had the situation under control,”
and that they were “free to go.” (ECF No. 23 at 3, ¶¶ 51, 52.) At the time of the
incident, the Charlestown Police held concurrent jurisdiction with both the Tribal
Police and the State Police on Tribal lands. (ECF No. 16 at 5, ¶ 34.)

Ms. Noka claims that she asked a Charlestown Police Officer at the hospital to take
her statement, but he refused. (ECF No. 23 at 3, ¶ 49.) The Defendants dispute this
claim, noting that there is no record of any Charlestown Police Officer being at the
hospital and, although Ms. Noka initially stated that that officer was Officer Ryan,
she has since withdrawn that claim. (ECF No. 27 at 3, ¶ 49.)
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The Charlestown Police then referred all complaints related to the incident to
the Tribal Police. (ECF No. 16 at 3, ¶ 25.) Two days after the incident, Ms. Noka
contacted the Tribal Police to report the incident, and later followed up multiple times
that week. (Id. at ¶¶ 26-27.) Tribal Police never interviewed Ms. Noka about the
incident but the Chief of the Tribal Police obtained a written statement from Ms.
Noka. (ECF No. 16 at 4, ¶ 28; ECF No. 23 at 3, ¶ 55.)
Exactly when the Charlestown Police took over the investigation again is
disputed. But sometime after the incident, Charlestown Police Detective Ryan
Gwaltney was assigned to investigate “the incident involving the spraying of pepper
spray/mace involving Ms. Noka.” (ECF No. 23 at 5, ¶ 63.) After reviewing statements
from witnesses, the Charlestown Police submitted a criminal information package to
the Department of Attorney General (the “Attorney General”). (ECF No. 16 at 4, ¶¶
31-32; ECF No. 23 at 4-5, ¶¶ 61-62.) The Charlestown Police and the Attorney
General determined that criminal charges were not appropriate. (ECF No. 16 at 5, ¶
33.)4
Following the attack, Ms. Noka requested compensation from the Crime
Victims Compensation Fund. (ECF No. 23 at 4, ¶ 58.) In a letter dated March 17,
2015, her claim was denied because “[a]ccording to the Charlestown Police
Department, [she was] not a victim of a crime . . .”. In addition, the letter reported

Ms. Noka claims the Charlestown Police never interviewed her about the incident.
(ECF No. 23 at 3, ¶ 56.) But the Defendants dispute this claim, noting that Ms. Noka,
in her answers to interrogatories, revealed that she exchanged emails with Detective
Gwaltney of the Charlestown Police and had in-person and phone conversations.
(ECF No. 27 at 4, ¶ 56.)

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that the Fund was unsuccessful in obtaining a police report from the Tribal police.

Id. Three months later, after Ms. Noka had insisted that there had been an incident
that the Charlestown Police responded to, that decision was reversed. Id. at ¶ 60.
IV.
A.

DISCUSSION

Equal Protection Claims

Under the Fourteenth Amendment of the United States Constitution, no state
actor can “deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. It is “clearly establishe[d] that the state does not have
a constitutional duty to protect its citizens from private violence.” Soto v. Flores, 103
F.3d 1056, 1063 (1st Cir. 1997) (citing DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 197 (1989)). The State, however, cannot “deny its protective
services to certain disfavored minorities without violating the Equal Protection
Clause.” DeShaney, 489 U.S. at 197, n. 3. Law enforcement officials therefore may
not selectively deny protective services based on “invidious classifications such as
race, gender, and religion.” Pariseau v. City of Brockton, 135 F. Supp. 2d 257, 262–
63 (D. Mass. 2001) (citing Hayden v. Grayson, 134 F.3d 449, 452, 453 n. 3 (1st
Cir.1998)).
Ms. Noka argues that the Defendants violated the Equal Protection Clause by
refusing to investigate the January 2015 incident at the Tribal meeting because of
her status as a member of the Tribe. (ECF No. 21 at 14).5 Invoking a standard

Ms. Noka specifically notes that her claim is not a claim of failure to charge,
susceptible to the doctrine of prosecutorial immunity, but a claim for failure to
investigate. (ECF No. 21 at 19.)

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explained in Soto v. Flores, supra, Ms. Noka argues that the Defendants’ Motion for
Summary Judgment must fail because she has put forth “sufficient evidence that
would allow a reasonable jury to infer that it is the policy or custom of the
[Defendants] to provide less protection” to members of the Tribe than to nonmembers. Id. (citing Soto, 103 F.3d at 1066).6 The Court disagrees, finding the record
void of any evidence suggesting that Ms. Noka was selectively denied services based
on her status as a Narragansett Indian. The record instead teems with undisputed
facts detailing how the Charlestown Police provided police services to Ms. Noka both
during and after the January 2015 incident.
After Ms. Noka called 911, two Charlestown Police officers arrived at the Four
Winds Community Center. (ECF No. 16 at 1, ¶ 18.) Ms. Noka asked the officers to
remove her from the scene; the officers agreed and took her to the Charlestown Town
Hall, where an awaiting ambulance took her to the hospital. Id. at ¶¶ 19-20. While
Ms. Noka was being transported to the hospital, another Charlestown Police officer
arrived at the Four Winds Community Center and informed Tribal members that
they could make a statement or file a complaint with the Charlestown Police, the
Tribal Police, or the State Police. Id. at ¶ 23. After the incident, Charlestown
Detective Ryan Gwaltney investigated what happened and reviewed statements from
witnesses. (ECF No. 16 at 4-5, ¶¶ 31-33; ECF No. 23 at 5, ¶ 63.) The Charlestown
Police submitted a criminal information package to the Attorney General. (ECF No.

Because she asserts a facial challenge to an acknowledged policy or custom, Ms.
Noka insists she need not identify a comparator for her equal protection claims. (ECF
No. 28 at 1-4.)
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16 at 5, ¶ 33; ECF No. 23 at 4-5, ¶¶ 61-62.) Both the Charlestown Police and the
Attorney General ultimately determined that criminal charges were not appropriate.
(ECF No. 16 at 5, ¶ 33; ECF No. 23 at 4-5, ¶¶ 61-62.)
From the outset, Ms. Noka received police services from the Charlestown
Police. Her 911 call did not go unanswered; her personal safety was not disregarded;
and an investigation was conducted. Without support in the record for Ms. Noka’s
claim that she was denied protective services, summary judgment for the Defendants
is proper.
B.

Monell Claim

Ms. Noka’s claim of municipal liability likewise fails. Under 42 U.S.C. §1983,
a municipality is liable “when its agents and employees committed constitutional
violations, but not under a theory of respondeat superior.”

Young v. City of

Providence, 404 F.3d 4, 24 (1st Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691-95 (1978)). “[I]t is only when the governmental employees’ execution of
a government’s policy or custom . . . inflicts the injury and is the moving force behind
the constitutional violation that a municipality can be liable.” Young, 404 F.3d at 24
(internal quotation marks omitted). “Assessing liability against the [municipality]
requires two basic elements: first, that [P]laintiff’s harm was caused by a
constitutional violation, and second, that the [municipality] be responsible for that
violation.”

Id. at 25-26.

Because Ms. Noka failed to show an underlying

constitutional harm, this claim fails.

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C.

Qualified Immunity for Officer Allen

As for the individual claims against Officer Allen, the Defendants argue he is
entitled to qualified immunity because Ms. Noka cannot show he violated a clearly
established right under federal law. (ECF No. 15-1 at 11.) Because the facts in the
record do not present a genuine dispute as to whether Ms. Noka’s constitutional
rights were violated, the question of qualified immunity need not be addressed.
D.

Negligent Infliction of Emotional Distress

Under Rhode Island law, “[i]t is well settled that ‘only two classes of persons
may bring claims for negligent infliction of emotional distress: those within the zoneof-danger who are physically endangered by the acts of a negligent defendant, and
bystanders related to a victim whom they witness being injured.’” Shannahan v.

Moreau, 202 A.3d 217, 229–30 (R.I. 2019) (quoting Gross v. Pare, 185 A.3d 1242, 1246
(R.I. 2018)). Ms. Noka’s claim for negligent infliction of emotional distress cannot
move past the summary judgment stage because she has introduced no evidence that
would allow her to invoke either of these recognized theories of liability. There is no
evidence that Ms. Noka was in a zone of physical danger from any of the Defendants’
conduct nor has she produced any evidence of medically established physical
symptomatology caused by the Defendants’ conduct. Summary judgment is therefore
granted in favor of the Defendants.
V.

CONCLUSION

For the reasons stated, the Court GRANTS the Defendants’ Motion for
Summary Judgment. (ECF No. 15.)

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IT IS SO ORDERED:

___________________________
Mary S. McElroy
United States District Judge
Date: March 8, 2021

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