SHEPPARD v. AVersuslawI

384 F.Supp.2d 478 (2005) | Cited 2 times | D. Massachusetts | August 11, 2005


This civil rights action arises out of the arrest, imprisonmentand indictment of the plaintiff, Stanley Sheppard ("Sheppard"),for armed robbery and assault and battery with a dangerousweapon. His criminal case was dismissed by a MassachusettsSuperior Court Judge who concluded that relevant evidence had notbeen presented to the grand jury. Thereafter, Sheppard sued theTown of Burlington, Massachusetts ("Burlington" or the "Town"),and two of its police officers, Robert Aloisi ("Aloisi") andWilliam R. Soda ("Soda"), alleging violations of hisconstitutional rights and intentional infliction of emotionaldistress.

The matter is presently before the court on the defendants'motion for summary judgment (Docket No. 27), by which thedefendants are seeking summary judgment in their favor on all ofthe plaintiff's claims. The Amended Complaint alleges five causesof action, including claims for false arrest and imprisonment (FirstCause of Action), malicious prosecution (Second Cause of Action),municipal liability (Third Cause of Action), violations of theMassachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11("MCRA") (Fourth Cause of Action), and intentional infliction ofemotional distress (Fifth Cause of Action). In addition, Sheppardalleges that the defendants unconstitutionally searched andseized his motor vehicle and stole his personal property.

The plaintiff has agreed, both in pleadings filed with thecourt and at oral argument, that all of his claims against Sodaand his emotional distress claim against Burlington should bedismissed. For the reasons detailed herein, the defendants'motion for summary judgment as to the remaining claims isALLOWED. II. STATEMENT OF FACTS1

The following facts relevant to the defendants' motion areundisputed unless otherwise indicated.2

The Robbery — An Overview

At approximately 12:30 a.m. on October 29, 2000, two armed andmasked men robbed the Rainforest Café restaurant at theBurlington Mall in Burlington, Massachusetts. Sheppard wasworking as the assistant kitchen manager at the Café at thetime. It is undisputed that Sheppard had gone outside when he wasapproached by the two men. He let them in to the restaurant, andled them to the office where the cash was kept. Two co-workerswere in the office at the time. The robbers were armed and masked by the time they entered theoffice. In the office, Sheppard was told by one of the robbers toget down on the ground, and his hands were duct-taped behind hisback. A co-worker, Tracey Stallworth ("Stallworth"), who had beenhiding underneath an office desk, became hysterical, and therobbers discovered her presence and hit her over the head.Gregory Potesta ("Potesta"), the assistant manager, was also inthe office. He opened the safe. The robbers took the money, hitPotesta over the head, and fled. Potesta, who was injured but notunconscious, called 911. Sheppard freed himself from the ducttape, went outside to look for the police, returned, and thencalled 911 again. Four police officers, including the defendantAloisi, Lieutenant Bevis, Officer Priest and Officer Kirchner,arrived at the scene. Stallworth and Potesta were taken to theLahey Clinic for treatment.

As detailed below, the police believed that Sheppardparticipated in the robbery voluntarily, and was working with themasked robbers. For his part, Sheppard contends that the policefocused on him only because he is black. He contends that he wasforced to let the robbers in because they were armed with guns. ASuperior Court judge concluded that a surveillance tape could beviewed as showing that Sheppard never had the opportunity to seethe robbers unmasked, and that a robber held a gun to his backwhen he entered the office.3 Since neither the tape, northis potential description of events, was presented to the grandjury, the court dismissed the indictments. The Investigation

After arriving at the Rainforest Café, Officer Priestinterviewed Sheppard. (DF ¶¶ 17, 48). According to OfficerPriest, but denied by Sheppard, during the interview Sheppard wasreluctant to give his address and stated that he was having ahard time paying his bills as he had no money. (Defs.' Ex. 3 at9; PF ¶¶ 49-51). Officer Priest contends that he began to suspectthat Sheppard had been involved in the armed robbery based onSheppard's passive and unexcited demeanor during the interviewand on the fact that the duct tape, which the robbers had used totie Sheppard's hands during the robbery, had been loose . (DF ¶18; Defs.' Ex. 3 at 31). Officer Priest testified that he relayedall of his suspicions to Aloisi. (DF ¶ 19; Defs.' Ex. 3 at 30-32;PF ¶ 19).

According to Sheppard, the police focused on him almostimmediately. (See PF ¶ 57; Pl.'s Ex. 2 at 143). He contendsthat "Officer Priest, who was the first officer to questionShephard [sic] after learning the robbers were black andHispanic, almost immediately thereafter accused Shephard [sic] ofbeing involved in the robbery." (Pl.'s Mem. (Docket No. 32) at15). In support of his claim of racial animus, Sheppard contendsthat he was one of only three black individuals employed at therestaurant, that only 1.36% of the Town's population was AfricanAmerican, that there was only one African American police officerand that the officer had filed complaints of discriminationagainst the Police Department. (PF ¶¶ 52-54).

The defendant Aloisi has been employed by the Burlington PoliceDepartment since 1970, and has been an Inspector since 1975. (DF¶¶ 3-4). Aloisi also interviewed Sheppard on the night of the robbery. (DF ¶ 26). He incorporatedthe results of this interview and other information he hadgathered from various sources in an incident report datedNovember 3, 2000. (Pl.'s Ex. 5).

According to Aloisi, Sheppard reported that he had been robbedby two gunmen in the presence of Greg Potesta, the store managerof the Rainforest Café, and Tracey Stallworth, an employee. (DF¶ 27; Pl.'s Ex. 5 at 2). Sheppard said that he had been takingout the trash/laundry at the rear of the Rainforest Café, andhad been approached by two gunmen when he returned to go backinto the restaurant. (DF ¶ 28). According to Aloisi's report,Sheppard had told Officer Priest that he was taking out trash,but had told Lieutenant Bevis that he was taking out laundry.(Pl.'s Ex. 5 at 2). Sheppard also told Aloisi that one of thegunmen stated twice, "we want the money." (Id.). Aloisi thenasked Sheppard how he knew that the gunmen wanted therestaurant's money and not his money. (Id.). "Sheppardresponded by saying that one of the gunmen put a gun in his backand he was so nervous that he immediately took them to the officewhere the cash was." (DF ¶ 31; see also Pl.'s Ex. 5 at 2).Sheppard also stated that inside the manager's office, the gunmentold him to get down on the ground and then duct-taped his hands.(DF ¶ 32; Pl.'s Ex. 5 at 2). He was never physically harmed.(Pl.'s Ex. 5 at 5).

After interviewing Sheppard, Aloisi met with Potesta andStallworth at the Lahey Clinic, where they had been taken afterbeing struck by the gunmen. (DF ¶¶ 25, 34). According to Aloisi'sincident report, Potesta told Aloisi, among other things, thatthe robbers had told him to open the safe, which he did. (Pl.'sEx. 5 at 2). The report further states, "Greg [Potesta] didn't understand why they asked onlyhim, as if they knew he was the only one that could open thesafe." (Id.).

Following his meeting with Potesta and Stallworth, Aloisireturned to the Rainforest Café, where he met the restaurant'sGeneral Manager, Thomas Stohr ("Stohr"). (DF ¶ 36; Defs.' Ex. 5at 7). Stohr had the video taping system for the restaurant'ssecurity cameras available in his office. (DF ¶¶ 37-39). Thevideo system operated seven days a week, twenty-four hours a day,and recorded images from nine different camera locationsthroughout the Rainforest Café. (Id.; Defs.' Ex. 5 at 24-25).Stohr, Aloisi, Officer Kirchner and the restaurant's Director ofRestaurant Services viewed the surveillance videotape of thearmed robbery. (DF ¶ 40; PF ¶ 59; Pl.'s Ex. 5 at 3). According toStohr, Sheppard knew of the existence of the security camerasprior to the robbery. (PF ¶ 60; Pl.'s Ex. 1 at 82-83).

The Surveillance Videotape

The parties have filed copies of two surveillance videotapeswith the court, and all parties agree that the court may rely onthe tapes in addition to their documentary submissions. Thevideotapes show Sheppard walking through a hallway and out adoorway at the Rainforest Café. (Defs.' Ex. 6; FrisoliVideotape).4 In one hand he is carrying a bag thatappears to contain white material, which is consistent witheither linen or trash. (Id.). Some minutes later, Sheppard canbe seen returning to the restaurant through the door and entering the hallway without the bag. (Id.). Twoindividuals enter the hallway behind Sheppard. (Id.). It is notapparent to this court whether their faces are covered orexposed, but their movements later in the videotape adjustingtheir masks suggest that their faces were uncovered initially.(Id.). One of the individuals appears to be holding something,but it is unclear whether it is a gun. (Id.). As Sheppard movesthrough the hallway with his back to the robbers, his arms areraised part way. (Id.; Frisoli Ltr., Ex. 1D). At one point,Sheppard turns his head part way to his left, but it is unclearwhether he is able to view the robbers' faces. (Defs.' Ex. 6;Frisoli Videotape). When Sheppard reaches the end of the hallway,he turns and continues down another hallway, out of the camera'ssight. (Id.).

After Sheppard disappears from view, the robbers remain in thehallway. (Id.). Their movements are consistent with putting onor adjusting face covers, but this court is not able to interprettheir actions with certainty. (Id.). Sheppard then returns tothe robbers in the hallway, and stands facing them with his backtoward the camera. (Id.; Frisoli Ltr., Ex. 1E).5 Itappears that one of the assailants is still adjusting his facecover. (Defs.' Ex. 6; Frisoli Videotape). Sheppard then turns,walks around the corner into the other hallway, and moves out ofsight. (Id.). The robbers follow Sheppard, and one of themappears to stay close to Sheppard's back. (Id.). Thereafter, the videotape shows Sheppard approach theaccounting office and begin to open it with what is apparently akey. (Id.). The robbers appear to be right behind him, andthere is a dark shape against Sheppard's lower back which isconsistent with a gun, but also could be a shadow or a hand.(Id.; Frisoli Ltr., Ex. 1F).6 The videotape furthershows the robbery taking place inside the accounting office.Sheppard and Stallworth can be seen lying on the floor of theoffice. (Defs.' Ex. 6; Frisoli Videotape). Potesta and the tworobbers can be seen moving around inside the office. (Id.).

After the robbery is completed, the robbers leave through thesame door that they used to enter the restaurant. (Id.; seealso PF ¶ 55). Sheppard can be seen sitting up and assistingStallworth. (Defs. Ex. 6; Frisoli Videotape; see also PF ¶56). Subsequently, Sheppard walks through the hallway and out thesame door that was used by the robbers, apparently to see whetherthe police had arrived in response to Potesta's call. (Id.). Hethen returns to the restaurant, leaving the outside door open,and goes back to the accounting office where he appears to usethe telephone. (Id.). There is no dispute that Sheppard usedthe telephone to make a call to 911. (PF ¶ 56; Pl.'s Ex. 2 at93). Finally, Potesta can be seen opening the outside door and allowing thepolice into the restaurant. (Defs. Ex. 6; Frisoli Videotape).

The Café's General Manager, Stohr, after viewing thevideotape, told the police officers that the incident andSheppard's behavior looked "weird." (DF ¶¶ 41, 44). Inparticular, Stohr told Aloisi that he found it odd that Shepparddid not check to make sure that the door was locked when hereturned to the restaurant after going outside following therobbery. (DF ¶ 42; Defs.' Ex. 5 at 85-86). In his view, ifSheppard was afraid of the gunmen, he would have made sure thedoor was locked. (Id.). Stohr also thought it suspicious thatSheppard was the only employee present during the armed robberywho had not been injured. (DF ¶ 47).

At some point, Stohr also informed Aloisi that, according toStallworth, the kitchen door had been closed at the time of therobbery, blocking the view of those working in the kitchen. (DF ¶45). In addition, she reported that Sheppard had received atelephone call just prior to the incident. (Id.). Stohr saidthat he found it unusual for the kitchen door to be closed atthat time of night, and advised Aloisi that someone at therestaurant had reportedly seen Sheppard close the door. (DF ¶ 46;Defs.' Ex. 5 at 62-63). He also stated that it was unusual forrestaurant employees to receive telephone calls late at nightbecause the calls ordinarily go directly into the voicemailsystem. (DF ¶ 46; Defs.' Ex. 5 at 62). Sheppard does not disputethe substance of these facts (although he challenges the negativeinferences), but he has presented evidence that Aloisi did not receive the information from Stohr until after Sheppard had beenarrested. (PF ¶¶ 45, 46; see also Pl.'s Ex. 8 and 15).

Aloisi took the surveillance videotape to the Burlington PoliceDepartment. (PF ¶ 62; Pl.'s Ex. 7 at 22). Subsequently, he viewedthe videotape again, along with his supervisor, LieutenantSciuto, and Lieutenant Sciuto made photographs from the tape. (PF¶¶ 62, 63; Pl.'s Ex. 7 at 22-23; DF ¶ 8).

The Arrest

Aloisi returned to the Rainforest Café on the afternoon ofOctober 29, 2000 and met with Sheppard. (See PF ¶ 64; Pl.'s Ex.5 at 1-3). Aloisi read Sheppard his Miranda rights and askedSheppard to write an account of what had happened, which he did.(PF ¶ 64; Pl.'s Ex. 5 at 3-4). Aloisi advised Sheppard that basedon his viewing of the surveillance videotape, he disagreed withSheppard's version of events. (Id.). He also asked Sheppard ifhe was willing to take a polygraph test, and Sheppard answeredaffirmatively.7 (PF ¶ 65; Pl.'s Ex. 2 at 108). Aloisithen arrested Sheppard for armed robbery while masked and for twocounts of assault and battery with guns. (PF ¶ 65; Pl.'s Ex. 5).

Following Sheppard's arrest, the police had the plaintiff's cartowed from the Burlington Mall parking lot to the BurlingtonPolice Department without a warrant. (PF ¶ 66; Pl.'s Ex. 6 at 14;Pl.'s Supp. Mem., Ex. 5 at 8). Lieutenant Bevis authorized the impoundment of the vehicle in order to maintain its security andin order to investigate its contents. (See Pl.'s Supp. Mem.,Ex. 2 at 23-24).

When Sheppard's vehicle was towed from the parking lot, OfficerKirchner prepared an inventory form on which he noted that thetires were in good condition. (PF ¶ 66; Pl.'s Ex. 6 at 14-15 andExhibit attached thereto). Officer Kirchner also wrote that thecar contained personal property, including a Sony Play Stationand VCR. (Id.). The towing company records indicate thatneither the Sony Play Station nor the VCR was in the car when itwas later towed from the Burlington Police Station to a tow lot.(PF ¶ 68). However, according to the plaintiff, the items wouldhave been in the trunk. (See Defs.' Reply Mem. (Docket No. 38),Ex. C at 131-32). Sheppard also contends that a leather coat andcellular phone, which he had in the police cruiser when he wasarrested, were never returned to him. (PF ¶ 69; Pl.'s Ex. 2 at111-12). The value of the allegedly missing items seems to beless than $1,000. (Defs.' Reply Mem., Ex. C at 132).

The Criminal Proceedings

On November 1, 2000, Aloisi testified on behalf of theCommonwealth of Massachusetts in a state district court hearingto determine, pursuant to Mass. Gen. Laws ch. 276, § 58A, whetherSheppard should be released on bail or detained pending hiscriminal trial. (PF ¶ 70; Pl.'s Ex. 10). In his testimony, Aloisidescribed what he had seen on the surveillance videotape from theRainforest Café. (Id.). His statements, in substance, werethat the robbers did not hold a gun to Sheppard's back, thatSheppard had to have known the robbers because they were notmasked when they first approached Sheppard, and that Sheppard had an opportunity to escape, butinstead returned to the hallway where the robbers were waiting.(PF ¶ 70; Pl.'s Ex. 10 at 20-23, 27-32, 39-40). At the conclusionof the hearing, the court ordered that Sheppard be held withoutbail. (Pl.'s Ex. 10 at 63). After Aloisi left the courtroom, theReverend Bishop Miles, a friend of Sheppard's family,8allegedly heard Aloisi state, "the nigger's guilty." (PF ¶ 71;Pl.'s Ex. 11 at 6-11).

Subsequently, on December 5, 2000, Aloisi testified as the onlywitness before a grand jury in the criminal proceedings againstSheppard. (PF ¶ 72; Pl.'s Ex. 12). Aloisi testified as to what hehad observed on the surveillance videotape from the RainforestCafé, but the videotape was not played for the grand jury.(Pl.'s Ex. 12). Thereafter, the grand jury indicted Sheppard.(See Attachment to Pl.'s Ex. 13).

On June 18, 2001, the Massachusetts Superior Court held ahearing on Sheppard's motion to dismiss the criminal case againsthim. (PF ¶ 73; Pl.'s Ex. 13). The presiding judge conducted aframe-by-frame review of the surveillance videotape from theRainforest Café. (Id.). Following the hearing, the SuperiorCourt allowed Sheppard's motion, thereby dismissing all of theindictments against him. (PF ¶ 73). In its Findings of Fact andConclusions of Law on the motion to dismiss, the Superior Courtruled in relevant part: At no point is there any evidence that Mr. Shephard (sic) viewed the assailants face to face in any circumstance other than they, the assailants, being masked.

Also, there is evidence that at the time that Mr. Shephard (sic) entered the accounting room, a gun was in his back. This gun can be seen clearly in a video frame. And it consists of a black cylinder object pointed in the back of Mr. Shephard (sic), and is consistent with a gun generally and with one of the two guns that were described by other employees as being held and used by the assailants. This material evidence, that is the lack of opportunity for Mr. Shephard (sic) to view face to face the assailants, and the fact that Mr. Shephard (sic) had a gun in his back, was not properly presented to the Grand Jury. In point of fact, the claim by the defendant that the integrity of the Grand Jury proceeding was impaired because the Commonwealth failed to present exculpatory evidence and misrepresented facts to the Grand Jury on the indictment in this case is supported.(PF ¶ 73).

Burlington's Handling of Complaints Against Aloisi

In or about August 2001, Sheppard served Burlington a notice ofthe allegations that are the subject of this lawsuit. (Pl.'s Ex.14 at 23). The Burlington Police Department's policies andprocedures provide, inter alia, that serious charges ofpolice misconduct will be handled and investigated by an internalaffairs officer who is the lieutenant in charge of the DetectivesDivision. (Pl.'s Ex. 3 at 20-22). Pursuant to the policies andprocedures that have been in place since 2000, the Department'sinternal affairs personnel are responsible for recording,registering and controlling the investigation of complaintsagainst employees, and for supervising and controlling the investigation of alleged misconduct within the Department. ( 21-22). Moreover, the Police Department's policies requirethat all alleged or suspected violations of laws, ordinances,bylaws, department rules, regulations, policies and procedures,and verbal or written orders be investigated according to certainprocedures. (Id. at 22). Allegations of racial discriminationand violations of civil rights are deemed severe enough towarrant consideration by internal affairs. (Id. at 34-35).Nevertheless, there has been no investigation by the PoliceDepartment's internal affairs personnel regarding Sheppard'sarrest or the events that occurred subsequent to his arrest.(Id. at 20).

The plaintiff has presented evidence of prior complaintsconcerning Aloisi's conduct. For instance, in May 1979, aBurlington police officer, Sergeant Knowles, threatened to suethe Town on the grounds that Aloisi allegedly had beaten his son.(Pl.'s Ex. 18). Witness statements that were submitted to thePolice Department regarding that incident described how Aloisiallegedly had beaten both Sergeant Knowles' son and a black youthwho had been suspected of stealing a car. (Id.). As punishmentfor his "over reaction in dealing with citizens at the incident,"the Police Department transferred Aloisi to its Uniform Division.(Id.).

Years later, in 1984, a woman filed a written complaint againstAloisi with the Burlington Police Department in which she claimedthat Aloisi had wrongly initiated criminal proceedings againsther. (Pl.'s Ex. 19). Following an investigation of the complaint,the Chief of Police found no fault with Aloisi's handling of thecase. (Id.). Finally, in 1998, Aloisi was named as a defendant in a case inwhich the plaintiff alleged that Aloisi had deliberatelyfalsified one or more witness statements. (Pl.'s Ex. 20). Thedocket sheet for the case indicates that the court awardedjudgment in Aloisi's favor on Aloisi's motion for a directedverdict. (Id.).


A. Summary Judgment Standard of Review

Summary judgment is appropriate when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). "A genuine issue is one that must be decided at trialbecause the evidence, viewed in the light most flattering to thenon-movant, would permit a rational fact finder to resolve theissue in favor of either party." Medina-Munoz v. R.J. ReynoldsTobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (internalquotations and citations omitted). A material fact is one thathas the "potential to affect the outcome of the suit under theapplicable law." Sanchez v. Alvarado, 101 F.3d 223, 227(1st Cir. 1996) (internal citations and quotation omitted).

The moving party bears the initial burden of establishing thatthere is no genuine issue of material fact. See Celotex Corp.v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553,91 L. Ed. 2d 265 (1986). If that burden is met, the opposing party canavoid summary judgment only by providing properly supportedevidence of disputed material facts that would require trial.See id. at 324, 106 S. Ct. at 2553. In evaluating motions for summary judgment, however, the court will not consider "`mereallegations,' or draw inferences where they are implausible ornot supported by `specific facts.'" Sheinkopf v. Stone,927 F.2d 1259, 1262 (1st Cir. 1991). Nor will the court acceptconclusory assertions in lieu of documented facts. Id.(internal citations omitted).

B. Claims Under 42 U.S.C. § 1983

In his first three causes of action,9 Sheppard isseeking recovery against Aloisi and the Town under42 U.S.C. § 1983 for alleged violations of his constitutional rights.Specifically, in his First Cause of Action, Sheppard claims thatthe defendants violated his constitutional rights by unlawfullyarresting him and imprisoning him without probable cause.Sheppard further claims, in his Second Cause of Action, that thedefendants deprived him of his constitutional rights bymaliciously initiating criminal proceedings against him in statecourt. Additionally, the plaintiff asserts that he is seekingdamages against the defendants, pursuant to 42 U.S.C. § 1983, forthe unconstitutional search and seizure of his motor vehicle,vandalism of his motor vehicle, and theft of his personalproperty. (See Pl.'s Mem. at 10). Sheppard's Third Cause ofAction, entitled 42 U.S.C. § 1983, alleges that the Town failedto properly train, supervise, investigate and discipline thepolice officers. Section 1983 "is not itself a source of substantive rights, butmerely provides a method for vindicating federal rights elsewhereconferred." Graham v. Connor, 490 U.S. 386, 393-94,109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (quotations and citationomitted). It states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983. "A claim under section 1983 has two essentialelements. First, the challenged conduct must be attributable to aperson acting under color of state law [and] second, the conductmust have worked a denial of rights secured by the Constitutionor by federal law." Soto v. Flores, 103 F.3d 1056, 1061(1stCir. 1997), cert. denied, 522 U.S. 819, 118 S. Ct. 71,139 L.Ed. 2d 32 (1997). There is no dispute that Aloisi, the individualdefendant, was acting in his official capacity as a Burlingtonpolice officer at all relevant times and was therefore actingunder color of state law. However, the defendants dispute thatany of their conduct deprived Sheppard of his constitutionalrights. Moreover, Aloisi argues that even if his conduct wasunlawful, he is shielded from liability under the doctrine ofqualified immunity.

As detailed herein, this court finds that Sheppard has failedto present evidence to support any of his claims that the Townviolated his constitutional rights. With respect to Aloisi, whiledisputed facts preclude a finding that probable cause for thearrest existed as a matter of law, the § 1983 claims against Aloisi are barred bythe doctrine of qualified immunity. Finally, Sheppard has notpresented sufficient evidence to support his claim that thedefendants violated his constitutional rights by searching andseizing or vandalizing his automobile, or by stealing hispersonal property.

C. Probable Cause for the Arrest

The defendants contend that Sheppard's claim of false arrestand imprisonment and malicious prosecution must fail becausethere was probable cause for Aloisi's arrest of Sheppard.However, this court finds that there are disputed facts whichpreclude the entry of summary judgment on this point as a matterof law.

"The Fourth Amendment right to be free from unreasonableseizures of the person demands that an arrest be supported byprobable cause." Santiago v. Fenton, 891 F.2d 373, 383 (1stCir. 1989). Consequently, "[t]he constitutionality of awarrantless arrest `depends . . . upon whether, at the moment thearrest was made, the officer? had probable cause to make it.'"Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1987) (quotingBeck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225,13 L. Ed. 2d 142 (1964)). Probable cause will be found "if — and only if — thefacts and circumstances of which the arresting officer hasknowledge are sufficient to lead an ordinarily prudent officer toconclude that an offense has been, is being, or is about to becommitted, and that the putative arrestee is involved in thecrime's commission." Id. Accordingly, the standard to apply inevaluating the existence of probable cause and the legality ofthe ensuing arrest is an objective one; "as long as thecircumstances surrounding the event warrant the officer's reasonable belief that the action taken is appropriate, thearrest is justified."10 Id. Finally, "though probablecause requires more than mere suspicion, it does not require thesame quantum of proof as is needed to convict." Id.

In the instant case, Aloisi has articulated facts which wouldsupport a finding of probable cause. For example, but withoutlimitation, Aloisi points to the fact that Sheppard was the onlyemployee who was not injured and his arms were tied only loosely,Sheppard provided inconsistent reasons why he was outside,Sheppard received a phone call before the robbery, Sheppardclosed the kitchen door, thereby blocking other employees' viewof the office where the armed robbery occurred, his demeanorafter the robbery was passive rather than excited, he would notprovide his name and address initially, and he stated that heneeded money. In addition, Sheppard did not appear to beparticularly concerned about locking the outside door after therobbery, and Sheppard's co-worker, Potesta, thought it strangethat the robbers seemed to know that he was the only person whocould have opened the restaurant's safe, thereby suggesting thata restaurant employee may have provided information to theassailants. Although Sheppard does not refute these factualassertions entirely, he has presented facts which, when viewed in the light most favorable to him, create a dispute as towhether all of this evidence could have supported probable causefor the arrest

Most important to the defendants' probable cause analysis isAloisi's interpretation of the events depicted on thesurveillance tape, which he reviewed before arresting Sheppard.Aloisi contends that the tape indicated that Sheppard had anopportunity to see the robbers without their masks,11that Sheppard escorted the robbers to the office, despite havingthe chance to lose them in the hall, and that, in his view,Sheppard was not being prodded by a gun when the robbers firstentered.

This court concludes that a jury could find that Aloisi'sinterpretation of the videotape was correct. Nevertheless, aSuperior Court judge found that the tapes could be viewed asshowing that Sheppard did not have an opportunity to see therobbers' faces, and that he was propelled by a gun to his back.Thus, when viewed in the light most favorable to Sheppard, a juryalso could conclude that a reasonable police officer consideringthe surveillance videotape at the time of the arrest would havedetermined that Sheppard's actions were motivated only by thethreat of harm and not by his participation in the crime.

These conflicting versions of the evidence have raised agenuine issue as to whether there was probable cause forSheppard's arrest. See Santiago, 891 F.2d at 384 (differing version of events leading to arrest precludes theentry of summary judgment); Woodley v. Town of Nantucket,645 F. Supp. 1365, 1370 (D. Mass. 1986) (genuine issue of factconcerning probable cause existed where plaintiff's testimony"undercut[s] [defendant police officer's] characterization of theinformation available to him at the time of the arrest.").Therefore, this court cannot conclude, as a matter of law, thatAloisi had probable cause to arrest the plaintiff for armedrobbery and assault and battery. See id. ("the probable causedetermination — i.e., whether the facts and circumstanceswarranted a person of reasonable caution and prudence inbelieving that [the plaintiff] had committed a crime — is leftmore appropriately to the trier of facts.").

D. Qualified Immunity for the Arrest

Where, as here, a jury could reasonably find that Sheppard wasarrested without probable cause and in violation of his FourthAmendment rights, the next inquiry is whether Aloisi is protectedby the doctrine of qualified immunity. Santiago,891 F.2d at 383. This court finds that he is so protected, and that summaryjudgment must therefore enter in Aloisi's favor on the falsearrest claim.

Qualified immunity shields government officials performingdiscretionary functions from liability for civil damages when"their conduct does not violate clearly established statutory orconstitutional rights of which a reasonable person would haveknown." Harlow v. Fitzgerald, 457 U.S. 800, 818,102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). "[W]hether an officialprotected by qualified immunity may be held personally liable foran allegedly unlawful official action generally turns on the`objective legal reasonableness' of the action . . . assessed in light ofthe legal rules that were `clearly established' at the time itwas taken." Anderson v. Creighton, 483 U.S. 635, 639,107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987) (quoting Harlow,457 U.S. at 818-19; 102 S. Ct. at 2738-39). While qualified immunitycannot protect Aloisi from liability if, on an objective basis,no reasonably competent officer would have acted as he did, "ifofficers of reasonable competence could disagree on [thelawfulness of the alleged conduct], immunity should berecognized." Malley v. Briggs, 475 U.S. 335, 341,106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). Thus, the defense ofqualified immunity "provides ample protection to all but theplainly incompetent or those who knowingly violate the law."Id.

The First Circuit, drawing on Supreme Court precedent, hasdeveloped a three-part procedure for determining whether a stateactor is entitled to qualified immunity. The procedure requiresthis court to consider

(i) whether the plaintiffs' allegations, if true, establish a constitutional violation; (ii) whether the constitutional right at issue was clearly established at the time of the putative violation; and (iii) whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right.Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).Ordinarily, "proper development of the law of qualified immunityis advanced if courts treat these three questions sequentially."Id.

The first two prongs of the test for qualified immunity areeasily satisfied with respect to Sheppard's false arrest claim.For the reasons detailed above, the record establishes that the facts, viewed in the light most favorable tothe plaintiff, could support a finding that Aloisi deprivedSheppard of his Fourth Amendment rights by arresting him withoutprobable cause. Moreover, the defendant does not seriouslydispute that the right to remain free from arrest withoutprobable cause was well established at the time of the incident.See Santiago, 891 F.2d at 386 ("[t]he right to be free fromunreasonable seizures of the person was well established longbefore 1983."). Accordingly, in this case, "the question of[Aloisi's] immunity for false arrest turns on whether, withoutregard to his state of mind, there was probable cause or arguablyprobable cause to make the arrest." Id.

The court finds that an objectively reasonable police officercould have believed that Sheppard participated in the crime atthe Rainforest Café, and consequently, that there was probablecause to arrest Sheppard for armed robbery and assault andbattery with a dangerous weapon. The reasonableness standardsthat underlie the probable cause and qualified immunity inquiriesare not identical; qualified immunity requires a "somewhat lessershowing." Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004).Thus, "if the presence of probable cause is arguable or subjectto legitimate question, qualified immunity will attach." Id.Accordingly, even if Aloisi had no probable cause to arrestSheppard, he is entitled to qualified immunity unless the arrestwas obviously unlawful at the time it was executed. SeeAnderson, 483 U.S. at 641, 107 S. Ct. at 3039 (law enforcementofficials should not be held liable where they reasonably butmistakenly conclude that probable cause is present); Limone,372 F.3d at 44 ("the qualified immunity defense should prevail unless the unlawfulness of thechallenged conduct was `apparent' when undertaken.").

For the reasons detailed above, Sheppard's arrest was notobviously unlawful at the time it was made. Even assuming Aloisiimproperly interpreted the events depicted on the surveillancevideo, Sheppard's otherwise suspicious behavior, along with theother indicia of an inside job, compels the conclusion thatprobable cause was at least arguable. Therefore, qualifiedimmunity shields Aloisi from liability for false arrest andimprisonment. See Cox, 391 F.3d at 31.

E. Malicious Prosecution

Sheppard also contends that the defendants' maliciousprosecution of him resulted in a violation of his constitutionalrights. Obviously, if there was probable cause for the arrest,the claim of malicious prosecution would fail. However, asdetailed above, there are disputed facts as to whether Aloisi hadprobable cause to arrest Sheppard.

Nevertheless, the defendants are entitled to summary judgmenton this claim. In bringing a § 1983 claim, "it is the plaintiff'sburden to identify the specific constitutional right infringed."Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). "[A]gardenvariety claim of malicious prosecution garbed in theregalia of § 1983 must fail." Id. (quoting Roche v. JohnHancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir.1996)).

Sheppard has made no attempt to meet his burden of identifyingthe constitutional violation at issue in his maliciousprosecution claim. It is well-established that maliciousprosecution does not support a claim of a substantive due processviolation, so that cannot be the constitutional violation which supports a § 1983 claim.Id. (citing Albright v. Oliver, 510 U.S. 266, 271 n. 4,114 S. Ct. 807, 811 n. 4, 127 L. Ed. 2d 114 (1994)) ("substantive dueprocess may not furnish the constitutional peg on which to hang afederal malicious prosecution" claim). Moreover, "[i]t is an openquestion whether the Constitution permits the assertion of asection 1983 claim for malicious prosecution on the basis of analleged Fourth Amendment violation." Id. at 54 and cases cited.

Assuming, arguendo, "that malicious prosecution can, undersome circumstances, embody a violation of the Fourth Amendmentand thus ground a cause of action under section 1983," id.,this claim would be barred by the doctrine of qualified immunity.As detailed above, the constitutional right at issue must beclearly established at the time of the putative violation tonegate the protection of the qualified immunity doctrine. Giventhat the question whether malicious prosecution may result in aconstitutional violation was "an open question" at the time ofSheppard's arrest in October 2000, the doctrine of qualifiedimmunity bars this claim brought under 42 U.S.C. § 1983.

F. Seizure, Vandalism, Theft of Property

Sheppard contends that the defendants are liable to himpursuant to 42 U.S.C. § 1983 for the unconstitutional search andseizure of his motor vehicle, vandalism of his motor vehicle andtheft of his property. As an initial matter, the defendantscontend that this claim is not sufficiently pleaded in thecomplaint. This court disagrees and finds that the allegationsare sufficient to satisfy the liberal notice pleadingrequirements of Fed.R.Civ.P. 8(a). See Torres-Rivera v.O'Neill-Cancel, 406 F.3d 43, 49 (1st Cir. 2005) ("[t]here is no heightened pleading requirement for section 1983. . . claims"; allegations contained in the complaint need onlyprovide notice of plaintiff's claims). For example, Sheppardalleges that after his arrest, he "was taken to the BurlingtonPolice Station and his motor vehicle was towed and confiscated bythe Burlington Police." (Amended Compl. ¶ 11) He also allegesthat when he later recovered his car, "he discovered someone haddriven a new nail through one of the tires and the Burlingtonpolice had stolen a Sony Play Station with 5 games and an RCA 4head VCR from the motor vehicle." (Id. ¶ 16). In addition, theAmended Complaint reads, [a]t all times material hereto the Town of Burlington failed to adhere to the Policies and Procedures of its Police Department by conducting any investigation of theft of Stanley Sheppard's personal property by the Burlington Police, the vandalism of Stanley Sheppard's motor vehicle by the Burlington Police, [and] the unconstitutional and illegal towing of Stanley Sheppard's motor vehicle by the Burlington Police. . . .(Id. ¶ 25). Finally, in each of his five Causes of Action, theplaintiff asserts that as a result of the defendants' actions, he"sustained a loss of personal property and was deprived of hisconstitutional rights." (Id. ¶¶ 29, 32, 36, 40, 44). Theseallegations provided the defendants with adequate notice ofSheppard's intention to pursue a claim based on the allegedlyunlawful towing, search and vandalism of his car and the theft ofhis possessions.

Nevertheless, the defendants are entitled to summary judgmenton this claim. It is undisputed that Sheppard's car was towedfrom a parking lot at the Burlington Mall to the Police Stationand then to the AT&T tow lot where it remained for 51 days.(See Defs.' Reply Mem. (Docket No. 38) at Ex. A at 25). There is no evidenceof a search other than an inventory search, which, contrary tothe plaintiff's claim, is authorized by the Burlington PoliceDepartment regulations. (See Policies & Procedures § 6(c)(vii)(motor vehicle inventory) attached to Pl.'s Supp. Mem. (DocketNo. 39)). See United States v. Hawkins, 279 F.3d 83, 86(1st Cir. 2002) ("[a] warrantless search is permitted underthe Fourth Amendment if it is carried out pursuant to astandardized inventory policy."). The impoundment of the vehicleto safeguard it incident to Sheppard's arrest was not unlawful.See Vega-Encarnacion v. Babilonia, 344 F.3d 37, 41 (1stCir. 2003) ("[c]ase law supports the view that where a driver isarrested and there is no one immediately on hand to takepossession, the officials have a legitimate non-investigatoryreason for impounding the car").

With respect to the claim of loss of property and damage, thereis no evidence that Aloisi had any role in the impoundment orsubsequent inventory search of Sheppard's car. Moreover, nothingin the record indicates that Aloisi was responsible for or hadany involvement in causing any damage to Sheppard's car or anytheft of Sheppard's personal effects. Accordingly, Aloisi cannotbe liable for the violation of any constitutional rights stemmingfrom this conduct, and is entitled to summary judgment on thisclaim. See Soto, 103 F.3d at 1061 (for liability to attachunder section 1983, the defendant's "conduct must have worked adenial of rights secured by the Constitution").

Similarly, the plaintiff has failed to state a claim againstthe Town relating to the car or loss of personal property. Theplaintiff cites no support for the proposition that the damage he suffered was of such a magnitude to give rise to aviolation of his constitutional rights. Furthermore, he has notalleged any pattern or practice on the part of the Town whichcould give rise to municipal liability. See discussion,infra. Finally, the Town cannot be held liable under common lawfor the intentional tort of conversion. See Kelley v.LaForce, 288 F.3d 1, 12-13 (1st Cir. 2002). Consequently,the defendants are entitled to summary judgment on these claimsas well.

G. Municipal Liability

In his Third Cause of Action, Sheppard is seeking to hold theTown liable under 42 U.S.C. § 1983. "To make out a case formunicipal liability under 42 U.S.C. § 1983, the Supreme Court hasrepeatedly held that liability can be found only `where themunicipality itself causes the constitutional violation atissue. Respondeat superior or vicarious liability will notattach under § 1983.'" Santiago, 891 F.2d at 381 (quoting Cityof Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203,103 L. Ed. 2d 412 (1989)). Accordingly, Burlington cannot be heldliable simply because its police officers deprived the plaintiffof his constitutional rights. Rather, the court requires "aplaintiff seeking to impose liability on a municipality under §1983 to identify a municipal `policy' or `custom' that caused theplaintiff's injury." Bd. of the County Comm'rs v. Brown,520 U.S. 397, 403, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626 (1997).Thus, in order to establish municipal liability againstBurlington, the plaintiff must "demonstrate both the existence ofa policy or custom and a causal link between that policy and theconstitutional harm." Santiago, 891 F.2d at 381. The defendants argue that Sheppard has failed to demonstratethe existence of a Town policy or custom that caused adeprivation of his constitutional rights. Sheppard counters thatBurlington failed to investigate prior complaints of misconductagainst Aloisi, as well as Sheppard's complaints against Aloisi,thereby ratifying Aloisi's treatment of Sheppard anddemonstrating deliberate indifference to Sheppard'sconstitutional rights.12 These claims are not supportedby the record.

First of all, the record demonstrates that at least as of 2000,Burlington had policies and procedures in place providing for thehandling and investigation of charges of police misconduct. Inparticular, the Burlington Police Department had policiesproviding for the handling and investigation of police misconductby an internal affairs officer and requiring that all alleged orsuspected violations of the law be investigated in accordancewith certain procedures. (Pl.'s Ex. 3 at 21-22).

Furthermore, the evidence belies Sheppard's contention that theTown failed to investigate prior complaints of misconduct againstAloisi and therefore has ratified Aloisi's improper conduct. Forinstance, the record shows that after Sergeant Knowles complained about the alleged beating of his son in 1979, thePolice Department obtained witness statements and punishedAloisi. (Pl.'s Ex. 18). Similarly, following the 1984 complaintregarding Aloisi's allegedly wrongful decision to institutecriminal proceedings, the Chief of Police conducted aninvestigation of the matter and concluded that Aloisi had handledthe case appropriately. (Pl.'s Ex. 19). Moreover, the plaintiffhas provided no evidence to support his argument that the Townfailed to investigate the 1998 allegations that Aloisi falsifiedwitness statements, and in any event, the evidence shows that theclaims against Aloisi in that case were ultimately dismissed.(Pl.'s Ex. 20). Therefore, nothing in the record concerning the1998 lawsuit suggests that Aloisi acted improperly or that he hada propensity to do so in the future. Accordingly, even ifBurlington did fail to conduct an investigation of the 1998claims against Aloisi, that failure did not create a risk offuture constitutional violations. See Brown, 520 U.S. at 411,117 S. Ct. at 1392 ("[a] plaintiff must demonstrate that amunicipal decision reflects deliberate indifference to the riskthat a violation of a particular constitutional or statutoryright will follow the decision."). Thus, the Police Department'salleged failure to conduct an investigation of Sheppard'scomplaints against Aloisi is not part of a pattern or practicewhich would support a finding of municipal liability. As aresult, Burlington is entitled to summary judgment on all ofSheppard's section 1983 claims, including the First through ThirdCauses of Action and Sheppard's claim of unlawful search andseizure, vandalism and theft. H. Massachusetts Civil Rights Act

In his Fourth Cause of Action, Sheppard asserts civil rightsclaims against Aloisi and Burlington pursuant to the MCRA, Mass.Gen. Laws ch. 12, § 11.13 The court finds that bothdefendants are entitled to summary judgment on these claims.

To prevail under the MCRA, the plaintiff "must prove that (1)his exercise or enjoyment of rights secured by the Constitutionor laws of either the United States or of the Commonwealth (2)has been interfered with, or attempted to be interfered with, and(3) that the interference or attempted interference was by`threats, intimidation or coercion.'" Bally v. NortheasternUniv., 403 Mass. 713, 717, 532 N.E.2d 49, 51-52 (1989) (quotingMass. Gen. Laws ch. 12, § 11H). "The MCRA is coextensive with42 U.S.C. § 1983, except that the Federal statute requires Stateaction whereas its State counterpart does not, and the derogationof secured rights must occur by threats, intimidation orcoercion." Sietins v. Joseph, 238 F. Supp. 2d 366, 377-78 (D.Mass. 2003) (internal quotations and citations omitted).Moreover, "[t]he same qualified immunity standard that appliesunder § 1983 has also been held to apply to claims under theMCRA." Kelley, 288 F.3d at 10. See also Duarte v. Healy,405 Mass. 43, 46, 537 N.E.2d 1230, 1232 (1989). Consequently, "a state official cannotbe held liable under the MCRA for discretionary official actionsthat violate (federal or state) constitutional or statutoryrights unless those rights were clearly established at the timeof the violation and the official's actions were objectivelyunreasonable." Kelley, 288 F.3d at 10. For the reasons detailedabove, Sheppard cannot maintain his claims of constitutionalviolations against either of the defendants. Therefore, thedefendants' motion for summary judgment on the plaintiff's MCRAclaim is allowed.

I. Intentional Infliction of Emotional Distress

Finally, Aloisi is seeking summary judgment in his favor on theplaintiff's Fifth Cause of Action, which asserts a claim for theintentional infliction of emotional distress. In order to prevailof this claim, Sheppard must show "(1) that the defendantintended to cause, or should have known that his conduct wouldcause, emotional distress; (2) that the defendant's conduct wasextreme and outrageous; (3) that the defendant's conduct causedthe plaintiff's distress; and (4) that the plaintiff sufferedsevere distress." Howcroft v. City of Peabody,51 Mass. App. Ct. 573, 596, 747 N.E.2d 729, 747 (2001) (quoting Cady v.Marcella, 49 Mass. App. Ct. 334, 340, 729 N.E.2d 1125, 1131(2000) (internal quotations and citation omitted)). Moreover,"[t]o be considered extreme and outrageous, the defendant'sconduct must be beyond all bounds of decency and . . . utterlyintolerable in a civilized community." Id. (internal quotationsand citations omitted). The court concludes that Aloisi's conduct cannot be deemedextreme and outrageous. While "[i]t is reasonable to concludethat, for most people, arrest is a traumatic experience,especially if the charges later prove to be false. . . . [T]hisfactor alone does not give rise to a claim for intentionalinfliction of emotional distress. . . ." Finucane v. Town ofBelchertown, 808 F. Supp. 906, 911 (D. Mass. 1992). Here, whereprobable cause was at least arguable, and a reasonably objectivepolice officer could have determined, based on the evidence thatwas available at the time of the arrest, that Sheppardparticipated in the armed robbery, this court finds that Aloisi'sconduct cannot be deemed extreme and outrageous.


For all the reasons detailed herein, the defendants' motion forsummary judgment (Docket No. 27) is ALLOWED.

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