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Civil rights - Excessive force - Conspiracy.

Byline: Mass. Lawyers Weekly Staff

Where plaintiff alleged facts that make it plausible that police officer defendants could have intervened to prevent the use of excessive force, defendants' 12(b)(6) motion to dismiss claims for excessive force and intentional infliction of emotional distress are denied, but a motion to dismiss the conspiracy claim is allowed because plaintiff failed to claim any constitutional deprivation resulted from the alleged conspiracy.

"On March 6, 2015, Plaintiff began to experience a hypoglycemic event as he was leaving a business establishment in Worcester. In a confused and impaired condition, he began to operate his vehicle and backed into a parked car. Officer Michael Spalatro witnessed the event and attempted to stop Plaintiff. Plaintiff, however, did not heed Officer Spalatro's instructions and drove off. As he did, his rear-view mirror made contact with Officer Spalatro's hip. Officer Spalatro called the police dispatcher and a BOLO was called for Plaintiff's vehicle. A few blocks from this scene, Plaintiff was stopped without incident by Officer LaFleche. LaFleche then radioed Spalatro that Plaintiff was in custody and asked him to come to the scene to identify Plaintiff. Officer Spalatro arrived soon after and approached Plaintiff who was handcuffed and, without warning, punched him in the face. Officer Spalatro failed to document his use of force in violation of the Worcester Police Department's policies. Similarly, none of the other officers reported Spalatro's actions in written reports to any of their superiors.

"The Fourth Amendment not only protects individuals from excessive force, it also imposes an affirmative duty on police officers to intervene to prevent it. See Gaudreault v. Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990). Therefore, an officer present at the scene of a stop or arrest who observes the use of excessive force, but fails to intervene, violates the Fourth Amendment if he had the means and opportunity to prevent or mitigate the harm to the victim. Id.

"Here, Plaintiff has plead facts that make it plausible that Officers Cyr and Watkins could have intervened. Whether discovery will reveal Officers Cyr and Watkin's awareness of the impending assault remains to be seen. This is a case where the information needed is within Defendants' control and discovery may, or may not, establish the knowledge requirement.

"In order to maintain a cause of action for intentional infliction of emotional distress under Massachusetts law, the plaintiff must establish that (1) the individual defendant intended to inflict emotional distress or that they knew or should have known that emotional distress was the likely result of their conduct; (2) the conduct of the defendant was 'extreme and outrageous' and 'beyond all possible bounds of decency and was utterly intolerable in a civilized community;' (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was 'severe' and of such a nature 'that no reasonable person could be expected to endure it.' Agis v. Howard Johnson Co., 371 Mass. 140, 144-45, 355 N.E.2d 315 (1976). Much like the case above, if Officers Watkins and Cyr were aware that Officer Spalatro was planning to assault Plaintiff, then Plaintiff may have a cognizable claim for intentional infliction of emotional distress against all three officers. However, this information is in the sole possession of the Defendants and therefore allowing discovery is appropriate.

"In order to make out an actionable conspiracy under section 1983, a plaintiff has to prove not only a conspiratorial agreement but also an actual abridgment of some federally-secured right. Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001).

"Here, Plaintiff has not claimed that any constitutional deprivation resulted from the alleged conspiracy. As a result, it is not sufficiently pled."

Jellyman v. City of Worcester, et al. (Lawyers Weekly No. 02-044-19) (7 pages) (Hillman, J.) (Civil Action No. 18-40030-TSH) (Jan. 22, 2019).

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Title Annotation:Jellyman v. City of Worcester, U.S. District Court for the District of Massachusetts
Publication:Massachusetts Lawyers Weekly
Date:Jan 28, 2019
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