Boyle v. Barnstable Police DepartmentBoyle v. Barnstable Police Department
MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 25)
Pеnding before this court is a motion for summary judgment (Docket Entry #25) filed by defendants Barnstable Police Department, Town of Barnstable, John Klimm (“Klimm”), Chief John Finnegan (retired) (“Chief Finnegan”), Chief Paul McDonald (“Chief McDonald”), Detective Sergeant John F. Murphy (“Murphy”), Sergeant Arthur Caido (“Caido”) and Sergeant Richard Morse (“Morse”) (collectively: “defendants”) pursuant to
PROCEDURAL BACKGROUND
On August 28, 2009, plaintiff John E. Boyle (“Boyle”) filed a verified complaint (Docket Entry # 1) against defendants in which he raises various federal claims under
Defendants move for summary judgment on both the federal and state law claims. Defendants additionally seek to
On March 22, 2011, this court held a hearing and took the motion for summary judgment (Docket Entry #25) under advisement.
STANDARD OF REVIEW
Summary judgment is designed “to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.”
Davila v. Corporación De Puerto Rico Para La Difusion Publico,
“The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.”
DeNovellis v. Shalala,
The nonmoving party, who bears the ultimate burden of proof, may not rest on allegations in his briefs,
see Borschow Hosp. & Med. v. Cesar Castillo,
Defendants submit a LR. 56.1 statement of undisputed facts. Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record.
1
See Cochran v. Quest Software, Inc.,
Construing the facts in Boyle’s favor for the purpose of adjudicating the summary judgment motion, they show the following.
FACTUAL BACKGROUND 2
Boyle, a longtime resident of Hyannis, Massachusetts, served on the Barnstable Town Council for six years. (Docket Entry # 1, ¶ 1). At all times relevant to this action, Boyle was the owner and chief executive officer of King’s Coach, Inc. (“King’s Coach”), a sedan, van and limousine service provider licensed in the Town of Barnstable. (Docket Entry # 30, ¶ 1). The instant action arises out of events between Boyle and defendants in connection with the licensing and operation of King’s Coach in 2006.
The Town of Barnstable Rules and Regulations for the Regulation of Taxi Cabs and the Operation Thereof (“Rules and Regulations”) dictate that an individual must obtain a permit from the Barnstable Town Manager in order to operate a livery business in the Town of Barnstable. 3 (Docket Entry # 30, ¶ 2; Docket Entry # 33, Ex. 2). In order to acquire a permit, which the Rules and Regulations also refer to as “a vehicle for hire license,” a business must have its vehicles inspected and pay a fee. (Docket Entry # 30, ¶ 2; Docket Entry # 33, Ex. 2). Section 21 of Massachusetts General Laws chapter 40 (“section 21”) allows towns such as Barnstable to prescribe such ordinances and bylaws and affix monetary penalties not exceeding a certain amount for any breach. Mass. Gen. L. Ch. 40, § 21. The permit also designates the number of vehicles the business may use under the permit. (Docket Entry # 33, Ex. 2). The Rules and Regulations also provide that “the Chief of Police of the Town of Barnstable or any person or persons so designated by the Chief of Police” may act as the examiner for the regulations. (Docket Entry # 30, ¶ 8; Docket Entry # 33, Ex. 2). Pursuant to the Rules and Regulations, a vehicle for hire license “shall be valid for such term as the Examiner shall determine.” (Docket Entry # 32, Ex. 2; Docket Entry # 33).
The examiner may suspend or revoke a license at any time if he believes the license holder violated any of the Rules and Regulations. (Docket Entry # 30, ¶ 8; Docket Entry # 32; Docket Entry # 33, Ex. 2). The examiner must, however, notify the license holder of the suspension or revocation in writing as well as inform the licensee of his right to a hearing before the Town Manager. (Docket Entry # 32; Docket Entry # 33, Ex. 2). “A request for a hearing [however] shall not delay any suspension or revocation.” (Docket Entry # 33, Ex. 2).
Boyle founded King’s Coach in April of 2000. (Docket Entry # 1, ¶ 2). At its peak, the company owned 20 vehicles and employed 35 drivers and eight office staff. (Docket Entry # 1, ¶ 2). In 2004 and 2005, King’s Coach raised $980,000 and $880,000 in revenues, respectively. (Docket Entry # 1, ¶ 2). Boyle also owned and operated Shuttle King, “a shared ride shuttle service operating in 40 cit[ies] and towns” in Massachusetts. (Docket Entry
On November 16, 2005, Thomas Geiler (“Geiler”), the Town of Barnstable licensing agent, notified Boyle that he must have the livery vehicles inspected at the Barnstable police station on December 13 or 14, 2005, in order to obtain 2006 permits for King’s Coach. (Docket Entry # 30, ¶ 4; Docket Entry # 26, Ex. 11). Boyle did not submit the vehicles for inspection on either date. On December 20, 2005, the Town of Barnstable Office of Regulatory Services (“Office of Regulatory Services”) contacted Boyle and advised him that the permits were in jeopardy of not being renewed. (Docket Entry # 11, ¶ 10). Boyle instead applied for a limousine license in the Town of Falmouth with the hope of consolidating his business operations there. (Docket Entry # 1, ¶ 12). In December 2005, Falmouth Town Manager Whitenour (“Whitenour”) notified Boyle that, “King’s Coach could not obtain a license in Falmouth due to prejudice of then Falmouth Police Chief David Cusolito.” (Docket Entry # 1, ¶ 12). Under Whitenour’s direction, Boyle withdrew the license application. (Docket Entry # 1, ¶ 12).
Due to ongoing bad publicity and “financial considerations,” Boyle placed King’s Coach and Five Star up for sale. 6 (Docket Entry # 1, ¶ 13). He sold Five Star on or about May 1, 2006.
Boyle also “contacted the Licensing Division of Barnstable who agreed to allow Boyle an extension on renewing his limousine license because of a potential sale.”
7
(Docket Entry # 1, ¶ 14). Boyle met with Thomas Geiler (“Geiler”), the Town of Barnstable licensing agent, at least three times regarding the extension. (Docket Entry # 1, ¶ 15). Geiler assured Boyle that “things were OK” and advised him to
In a letter dated June 5, 2006, the Office of Regulatory Services warned Boyle that if he did not renew his permits by June 20, 2006, the permits would be considered “null and void.” (Docket Entry # 33, Ex. 1). The letter extended Boyle’s permits and notified him that the Town “considered his permits to be valid at least until June 20, 2006.” 8 (Docket Entry # 32, pp. 4, 8-10). The Office of Regulatory Services, however, sent the letter to an address Boyle had not occupied in over four years. (Docket Entry # 1, ¶ 38). Unaware of the deadline until September 2006, 9 Boyle did not have his vehicles inspected or his permits renewed by June 20, 2006. (Docket Entry # 30, ¶ 6).
On June 28, 2006, Geiler sent an email to Sergeant Sean Sweeney (“Sergeant Sweeney”) of the Barnstable Police Department informing him that King’s Coach did not have valid 2006 permits. 10 (Docket Entry # 26, Ex. 1; Docket Entry # 30, ¶ 7). “On or about July 2, 2006, the Barnstable Police Department stopped,” towed and impounded a King’s Coach vehicle for operating without a valid registration. (Docket Entry # 30, ¶ 9). It was later determined that a Massachusetts Turnpike Authority vehicle transponder had malfunctioned, causing the Fast Lane to mistakenly cancel the vehicle’s registration without notice. (Docket Entry # 30, ¶ 9). Following this incident, Boyle telephoned Chief Finnegan 11 in an attempt to schedule a meeting to discuss the' impounding of the vehicle and the allegations in a recent article published by the Cape Cod Times. (Docket Entry # 1, ¶ 26). After approximately five days and numerous telephone calls, Chief Finnegan called Boyle back and told him he was not available for a meeting. 12 (Docket Entry # 1, ¶ 27). Boyle made similar attempts to contact the Town Manager and Director of Licensing to no avail. (Docket Entry # 1, ¶ 28).
On August 9, 2006, Caido, as the complainant, filed an application for a criminal complaint against Boyle. (Docket Entry # 26, Ex. 2).
13
At his deposition, Caido, the police prosecutor along with Morse for the Barnstable Police Department in 2006, described his role as presenting “the police reports and facts to a magistrate” who “determine[s] if there is probable cause to сharge somebody.” (Docket Entry #33, Ex. 5; Docket Entry # 29, Ex. 15). The Barnstable District Court (“the court”) issued a criminal complaint on August 31, 2006, charging Boyle with two counts of violating a municipal bylaw or ordinance for operating a limousine service without a license on July 10, 2006 and July 21, 2006,
On August 28, 2006, Morse, as the complainant, filed an application for a criminal complaint against Boyle for two offenses allegedly committed on July 17, 2006. 15 (Docket Entry # 26, Ex. 3). The application charged Boyle with one count of larceny under $250 in violation of Massachusetts General Laws chapter 260, section 30 (“section 30”) and another count for violating a municipal bylaw or ordinance for operating a business without a license in violation of section 21. (Docket Entry # 26, Ex. 3; Docket Entry # 30, ¶ 11). Morse based the larceny count on allegations made by Richard Verling (“Verling”) 16 that King’s Coach charged his credit card $141.88 for a reservation he cancelled in advance. (Docket Entry # 26, Ex. 3). On February 20, 2007, the court dismissed the larceny count. Boyle pleaded guilty to the operating without a license charge on February 20, 2007. The court set November 15, 2007, as the end date for probation and continued the matter without a finding. (Docket Entry # 26, Ex. 3). The court also ordered Boyle to pay $100 for court costs, which Boyle paid on June 19, 2007. (Docket Entry # 26, Ex. 3). At the end of a probationary period on November 15, 2007, the court dismissed the operating without a license count and closed the case. (Docket Entry # 26, Ex. 3).
On August 29, 2006, Caido, as the complainant, filed an application for a criminal complaint against Boyle for two offenses allegedly committed on August 16, 2006.
17
(Docket Entry # 26, Ex. 4). The application charged Boyle with two offenses, the first a larceny over $250 in violation of section 30 and the second a violation of a municipal bylaw or ordinance for operating a business without a license in violation of section 21. On the same day, the court issued a criminal complaint charging Boyle with one count of larceny over $250 and one count of violating a municipal ordinance for operating a business without a license. (Docket Entry # 26, Ex. 4; Docket Entry # 30, ¶ 12; Docket Entry # 29, Ex. 15). Caido based the larceny charge on allegations made by Carmel Fisher (“Fisher”) that King’s Coach failed to pick her up at the Omni Parker House in Boston, Massachusetts but nevertheless charged her $407.20 for the unperformed services.
18
(Docket Entry #26, Ex. 4; Docket Entry # 30, ¶ 12). On February
On October 3, 2006, Morse, as the complainant, filed an application for a criminal complaint against Boyle for four offenses allegedly committed on October 2, 2006. (Docket Entry #26, Ex. 5). The court issued a criminal complaint on that same day charging Boyle with driving with a suspended license, operating a motor vehicle without an inspection, operating a motor vehicle without proper registration, and a number plate violation. 19 (Docket Entry # 26, Ex. 5; Docket Entry # 30, ¶ 14). On December 7, 2006, the court dismissed the driving with a suspended license charge and held a hearing on the remaining charges. (Docket Entry # 26, Ex. 5). At the conclusion of the hearing, the court found Boyle responsible for the remaining three offenses and issued civil assessments totaling $115. (Docket Entry # 26, Ex. 5; Docket Entry # 30, ¶ 14). On December 8, 2006, Boyle paid the fee and the court closed the case. (Docket Entry # 26, Ex. 5).
On November 2, 2006, Alan J. Green (“Green”), as the complainant, filed an application for a criminal complaint against Boyle for an offense allegedly committed on July 10, 2006. (Docket Entry # 26, Ex. 6). The court issued a criminal complaint on December 7, 2006, charging Boyle with a failure to obtain workers’ compensation insuranсe. 20 (Docket Entry #26, Ex. 6).
On July 21, 2006, the Cape Cod Times published an article that stated Boyle “is in trouble with former employees, the state attorney general’s office, the town of Barnstable and would-be customers.” (Docket Entry # 38, Ex. 22). The article detailed that Boyle operated King’s Coach “illegally for nearly six months” and “allegedly left customers in the lurch.” (Docket Entry # 33, Ex. 22). The article reported that, “The attorney general’s fair labor division” issued two citations against Boyle for failing to pay wages and the court “processed a complaint against Boyle for failure to have workers compensation insurance.” (Docket Entry # 33, Ex. 22). The article states that Boyle did not “renew his permit to run a livery business in Barnstable by” December 31, 2005, “as required” and includes Boyle’s explanation that he did not have $1,500 in January for the license fee. (Docket Entry # 33, Ex. 22).
The Cape Cod Times published a follow up article on September 8, 2006, outlining the various allegations raised against Boyle and King’s Coach. (Docket Entry # 33, Ex. 22). The article described Fisher and Verling’s complaints against King’s Coach “for allegedly charging their credit cards but not providing limo service.” (Docket Entry # 33, Ex. 22). It also quoted similar allegations made by other King’s Coach customers. (Docket Entry # 33, Ex. 22). The newspaper also reported that the Barnstable Police Department levied “four criminal complaints against [Boyle] ... for allegedly operating his company King’s Coach without a livery license.” 21 (Docket Entry # 33, Ex. 22). Boyle filed suit against the Cape Cod Times seeking $12,500,000 in damages for the “inaccurate, incorrect, misrepresented and untrue” content of these articles. (Docket Entry # 1, ¶ 25).
Boyle notes in the complaint that he would introduce “approximately 30 plus criminal and administrative charges against him” as to which he was found not guilty. (Docket Entry # 1, ¶ 39). During one unidentified court proceeding, Boyle states that “a Judge asked the prosecutor” why Boyle was here and commented that, “[Boyle] has committed no crime.” (Docket Entry # 1, ¶¶ 39 & 40). The complaint, which is verified, also states that the Barnstable Police Department “refused to assist, and, further, outright avoided protecting [Boyle] and his family.” (Docket Entry #1, ¶ 40). For example, the Barnstable Police Department did not assist him when someone loosened the lug
King’s Coach suspended operations on July 26, 2006. (Docket Entry # 1, ¶ 31). Boyle asserts that the actions taken by the Barnstable Police Department and town officials caused the suspension of operations.
By letter dated November 4, 2009, Boyle wrote to the First Magistrate of the Barnstable District Court that “Police prosecutor Caido” was not dropping a criminal application scheduled for a December 4, 2009 hearing even though “ALL parties have rectified their differences.” (Docket Entry # 33, Ex. 17) (capitalization in original). Boyle also noted he had requested a hearing on two citations issued by the Barnstable Board of Health that were not mailed to Boyle’s correct address. Boyle also advised the First Magistrate that Caido was “attempting to extract revenge on [him] by any means possible.” (Docket Entry # 33, Ex. 17). By letter dated November 4, 2009, Boyle wrote to the Cape and Islands District Attorney in Barnstable, attached the foregoing letter and noted his belief that Caido was “attempting to use his position in a manner that is retaliatory” as well as unconstitutional. (Docket Entry # 33, Ex. 17). On December 15, 2009, Boyle transmitted by facsimile to a Cape and Islands Assistant District Attorney three requests submitted under the Massachusetts Public Records Law to the Barnstable Police Department dated August 31, 2009. The cover letter noted that Boyle had received a reply to only one of the requests and suggested that the failure to respond raised an inference of a spoliation of evidence. 23
In a January 8, 2010 reply letter to Boyle, the Cape and Islands Assistant District Attorney stated that the office would defer any determination on Boyle’s complaint about Caido pending conclusiоn of Boyle’s civil litigation. The Cape and Islands Assistant District Attorney also provided Boyle the address of the Secretary of the Commonwealth’s public records division which handles requests for public records. In a January 14, 2010 reply letter, Boyle complained about the deferral. (Docket Entry # 33, Ex. 17 & 20).
DISCUSSION
I. Murphy and Chief McDonald
Defendants move to dismiss Chief McDonald and Murphy because they are not named in the complaint. Boyle counters that “[c]ount 4, Paragraph 62 of the complaint reads, ‘Defendants Town of Barnstable, Klimm, Chief Finnegan, Chief McDonald, Murphy, Caido and Morse are liable under the doctrine of respondent[sic] superior or partnership by estoppels [sic].’ ” (Docket Entry # 32, p. 2). The complaint, however, fails to name Murphy and Chief McDonald in count four, paragraph 62, or elsewhere except in the caption of the case.
Third, Boyle argues he was prevented from deposing Murphy or Chief McDonald. 24 Boyle asserts that had he been allowed to conduct the requested discovery, he would have been able to show “a strong supervisory relationship to other named defendants and a direct wilful participation in the allegations made in the complaint.” (Docket Entry # 32).
II. Barnstable Police Department and Town of Barnstable
Defendants also move to dismiss the
The doctrine that a municipality cannot incur liability under
Defendants additionally seek dismissal of the Barnstable Police Department because a police department does not operate as a separate legal entity from the municipality. The legal authority defendants provide, however, only applies to liability under
Like a municipality, a police department “cannot be held liable in damages under
III. Malicious Prosecution
Defendants move for summary judgment on the malicious prosecution claim (Count Four) because: (1) Klimm and Chief Finnegan did not institute criminal
To prevail on a claim for malicious prosecution, a plaintiff must show that the defendants instituted the criminal prosecution.
See Limone v. United States,
It is nevertheless “well established that a person need not swear out a criminal complaint in order to be held answerable for malicious prosecution.”
Correllas v. Viveiros,
Turning to defendants’ second argument, it is well established that a plaintiff must set out sufficient facts that the defendant acted without probable cause to succeed on a malicious prosecution claim.
See Limone v. United States,
Defendants also correctly maintain that a malicious prosecution claim requires the plaintiff to establish termination of the underlying proceedings in the plaintiffs favor.
See Limone,
The complaint described four charges levied against Boyle: (1) the larceny perpetrated against Fisher in violation of section 30; 28 (2) the August 16, 2006 ordinance violation for operating a business without a license in violation of section 21; 29 (3) the larceny perpetrated against Verling in violation of section 30; and (4) the July 17, 2006 ordinance violation for operating a business without a license in violation of section 21, 30
As to the first charge, the Barnstable Police Department learned about the alleged improper charges to Fisher’s credit card when she contacted the department on August 21, 2006. On August 22, 2006, a police detective conducted another conversation with Fisher as part of the pre-filing investigation of the complaint. (Docket Entry #26, Ex. 4). The facts provided gave rise to strong suspicion that Boyle had unlawfully taken money from Fisher without providing the service or a refund. Caido filed the charges against Boyle on August 29, 2006, after the Barnstable Police Department learned about the facts in
As to the second charge, the Barnstable Police Department knew that King’s Coach’s vehicles did not have a valid 2006 permit to operate as early as June 28, 2006, when Geiler emailed Sweeney. In fact, the email asked Sweeney to “make the patrol force aware that King’s Coach has no valid 06 permits.” (Docket Entry #26, Ex. 1 & 11). Caido filed charges against Boyle thereafter on August 29, 2006, for operating a business without a license. (Docket Entry # 26, Ex. 4). On February 20, 2007, Boyle admitted to sufficient facts and the court continued the matter without a finding. Boyle’s admission to sufficient facts contradicts his claims of innocence regarding the charge of violating a municipal bylaw or ordinance for operating a business without a license. Accordingly, the court did not terminate the proceeding on this charge in Boyle’s favor as a matter of law.
See Wynne v. Rosen,
As to the third charge, Verling independently contacted the Barnstable Police on July 18, 2006, to complain about the unauthorized charge on his credit card. According to police records, Verling spoke to a detective on July 18, 2006, and explained he had made a reservation with King’s Coach on July 12, 2006, for a July 18, 2006 pick-up at Logan Airport. He later canceled the pick-up by telephoning King’s Coach and speaking to a clerk who assured Verling he would note the cancellation and Verling would receive a credit for the existing July 17, 2006 charge of $141.88 for the July 18, 2006 pick-up.
32
The police records also note that on August 7, 2006, Verling contacted his credit
As to the fourth charge, Morse filed the application for a criminal complaint charging Boyle for operating King’s Coach without a license in violation of a municipal bylaw or ordinance. Boyle pleaded guilty to the charge on February 20, 2007. The court set a probationary period and continued the matter without a finding. (Docket Entry # 26, Ex. 3). Boyle’s guilty plea regarding the charge of violating a municipal bylaw or ordinance for operating a business without a license contravenes his claim of innocence. Hence, insufficient facts exist to avoid summary judgment relative to the required element that the proceedings terminated in Boyle’s favor.
See Alphagary Corp. v. Gitto,
In sum, as the summary judgment target, Boyle fails to meet his underlying burden of showing sufficient facts to avoid summary judgment on the malicious prosecution elements of lack of probable cause and termination in his favor. Further, any claim of malicious prosecution against Klimm and Chief Finnegan fails tо survive summary judgment given the absence of sufficient facts that either instituted the criminal proceedings at issue.
IV. Abuse of Process
Defendants seek summary judgment on the abuse of process claim (Count Five) because: (1) Klimm and Chief Finnegan did not participate in any proceedings involving Boyle; and (2) Caido and Morse did not have an improper motive. Turning to the first argument, an abuse of process claim requires that the defendants participate in judicial proceedings against the plaintiff.
See Piccone v. McClain,
Turning to the second argument, in order to establish an abuse of process claim, a plaintiff must provide evidence of an ulterior purpose.
See McCarthy v. City of Newburyport,
Boyle argues that defendants initiated process knowing it was groundless in revenge for “(a) Speaking publicly against an investigation, (b) Being the subject of libelous media coverage, (c) Addressing police officers in the same manner and effect in which they opted to address plaintiff, and (d) Political and personal reasons.” (Docket Entry #32, § III(D); Docket Entry # 1, ¶ 66). The first and second assertions do not allow a finder of fact to find ulterior purpose. There is little if any evidence that Caido or Morse knew about Boyle’s comments regarding the unsolved murder.
34
The record fails to contain any specifics about the content of Boyle’s scenarios that ran counter to the prevailing thought in law enforcement or that Caido and Morse shared this prevailing thought. Consequently, there is insufficient evidence that Caido or Morse used the August 28 and 29, 2006 filings of the applications for the criminal complaints as a means to punish or as retribution against Boyle for the public comments he made that were contrary to the prevailing thought of law enforcement regarding a 2005 unsolved murder. There is also insufficient evidence of an ulterior purpose in the filing of the applications because Boyle addressed police officers in a certain manner or because Caido or Morse sought personal gain.
See Empire Today, LLC v. National Floors Direct, Inc.,
In addition to the foregoing, the complaint depicts the defendants’ ulterior purpose as using process “for personal political vendetta and published name recognition.”
35
(Docket Entry #1, ¶ 68). These statements fail to sufficiently connect Caido or Morse to a political vendetta or connect the political vendetta to the applications for criminal process that Caido and Morse initiated. Moreover, any use of process by Caido or Morse to gain name recognition or an unidentified political advantage does not provide sufficient evidence to withstand summary judgment that Morse or Caido acted with an ulteri- or purpose.
See Stacey v. Stacey,
The complaint also notes that defendants launched “multiple investigations” targeting Boyle “by use of confidential informants and electronic means designed to entrap Boyle.” (Docket Entry # 1, ¶ 67). The investigations noted in the complaint as well as those identified by defendants, however, were not groundless. Geiler informed the police that King’s Coach was operating without a valid 2006 permit in the Town of Barnstable. Fisher and Verling reported false charges on their credit cards. Furthermore, the use of confidential informants or electronic means are common investigatory tools.
See United States v. Childs,
Boyle additionally cites the November and December 2006 letters he wrote or faxed to the Cape and Islands District Attorney, the First Magistrate and the Cape and Islands Assistant District Attorney, which included the Board of Health citations, as well as the January 2009 response by the Cape and Islands Assistant District Attorney to support the abuse of process claim. (Docket Entry # 32, pp. 14-15). The November 2009 letter to the First Magistrate notes Caido’s desire in the fall of 2006 not to drop the Board of Health matter. (Docket Entry # 33, Ex. 17). Caido’s expressed desire for Green to continue proceeding[s] against Boyle (Docket Entry # 33, Ex. 18) does not, without more, translate into an ulterior purpose.
See Psy-Ed Corp. v. Klein,
In sum, Caido and Morse are entitled to summary judgment given the absence of sufficient facts to allow a reasonable fact finder to find that Caido or Morse acted with an ulterior purpose. Accordingly, the abuse of process claim in Count Five against Caido and Morse is subject to summary judgment.
V. Libel, Slander and Defamation
Defendants next seek summary judgment on the libel, slander and defamation claims in Count Eight because: (1) Boyle failed to identify any statements that amount to slander or libel; (2) the complaint fails to show any statements made by Klimm, Morse and Finnegan; (3) Caido’s statement that he did not want “to drop anything” is privileged and/or does not establish defamation; and (4) Caido’s and Morse’s statements in the applications for criminal complaints are likewise privileged. (Docket Entry #26). Captioned “Libel, Slander, Defamation,” Count Eight alleges that the two articles in the Cape Cod Times contained inaccurate, false, malicious and libelous facts “of and concerning” Boyle that defendants knew or should have known were false.
36
(Docket Entry
The two Cape Cod Times articles published on July 21 and September 8, 2006, describe the complaints made by Fisher, Verling 37 and other customers about charges for limousine services Boyle never provided. The articles also note complaints made by unpaid employees and the charges relating to both operating without a license or permit and failing to carry workers’ compensation insurance. The September 8 article obliquely references Caido and Morse by referring to the criminal complaints for larceny and that Boyle “also faces charges of operating the business without a required town license.” (Docket Entry # 33, Ex. 22; Docket Entry # 26, Ex. 8). With the exception of a reference to Finnegan seizing certain property after police took Boyle “into protective custody,” the articles do not identify any defendant by name. The allegations attributed to members of the Barnstable Police Department include the following: “Barnstable Police Department officials have also taken out four complaints against Boyle ... for allegedly operating his company King’s Coach without a livery license”; “Barnstable police pull[ed] over a King[’]s Coach limo on Main Street” on July 10, 2006; 38 and “Barnstable Licensing Authority director Tom Geiler notified police in June that the company was in violation.” (Docket Entry # 33, Ex. 22; Docket Entry # 26, Ex. 7 & 8).
Turning to the first and second arguments, “Defamation encompasses the torts of libel and slander.”
Draghetti v. Chmielewski,
The articles do not identify any statements made by Klimm and the reference to Finnegan concerns his seizure of property rather than any statements he made. Accordingly, because the articles fail to identify statements made by Klimm or Finnegan concerning Boyle, both defendants are entitled to summary judgment for the defamation, libel and slander claims in Count Eight.
See Ravnikar v. Bogojavlensky,
“Statements made in the course of a judicial proceeding which pertain to that proceeding are ... absolutely privileged and cannot support a claim of defamation, even if uttered with malice or in bad faith.”
Correllas v. Viveiros,
Turning to Caido’s statement to Green, the exhibit containing the statement includes a series of entries made by Green during the course of his investigation of King’s Coach and Boyle, its owner. 39 Green’s notations for September 13, 2006 reflect that Caido spoke to Green and “Atty. Crowley” that he did not “want us to drop anything on this John Boyle because everybody in the department knows all about him and his going ons.” (Docket Entry # 26, Ex. 9).
Defendants argue that Caido’s statement to Green is absolutely privileged. As previously noted, “Statements made in the course of a judicial proceeding” pertaining to the proceeding are “absolutely privileged and cannot support a claim of defamation, even if uttered with malice or in bad faith.”
Correllas v. Viveiros,
Citing
Correllas,
defendants also contend that Boyle fails to establish that the statement is defamatory. (Docket Entry # 32) (“[t]he only statement identified in the complaint” is Caido’s and “there are no statements pled that are defamatory”). “Defamation is the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt.”
Correllas v. Viveiros,
In sum, Count Eight is subject to summary judgment except for the claims against Caido based on the statement he made to Green and Crowley that he did not want them “to drop anything on this John Boyle because everybody in the department knows all about him and his going ons.” (Docket Entry # 33, Ex. 18; Docket Entry # 26, Ex. 9).
VI. Intentional Infliction of Emotional Distress
Defendants move for summary judgment on the intentional infliction of emotional distress claim in Count Seven because Boyle fails to establish any of the four elements of a prima facie case. (Docket Entry # 26, § 111(F)). Boyle disagrees with respect to each of the four elements. (Docket Entry # 32).
In order to succeed on a claim of intentional infliction of emotional distress, the plaintiff must show (1) “he suffered ‘severe’ emotional distress”; (2) the defendant either “ ‘intended to inflict emotional distress or he knew or should have known’ ” his actions would cause emotional distress; (3) the defendant’s behavior “‘was extreme and outrageous, was beyond all possible bounds оf decency and was utterly intolerable in a civilized community’ ” and (4) causation.
Kennedy v. Town of Billerica,
Beyond the conclusory statement that the emotional distress “was severe and of a nature that no reasonable man could be expected to endure” (Docket Entry # 1, ¶ 79), Boyle fails to provide sufficient facts that would allow a fact finder to find the requisite level of severity that no reasonable man could be expected to endure. At best, Boyle proffers the foregoing accompanied by a generalized statement that he suffered and will continue to suffer “mental pain and anguish, severe emotional trauma, embarrassment, and humiliation.” (Docket Entry #1, ¶ 81). These conclusory statements are insufficient to avoid summary judgment.
See Chiang v. Verizon New England Inc.,
Defendants are also entitled to summary judgment given the absence of facts to support a finding of extreme and outrageous conduct. Police officers who merely carry “out their obligations as law enforcement officials and their conduct ‘as a matter of law cannot be deemed extreme and outrageous. Neither applying for an arrest warrant, nor making an arrest pursuant to an issued warrant can be considered “utterly intolerable in a civilized community.” ’ ”
Sietins v. Joseph,
The intentional infliction of emotional distress claim is therefore subject to summary judgment because Boyle does not provide sufficient facts to allow a reasonable finder of fаct to find in his favor relative to the existence of severe emotional distress or extreme and outrageous conduct on the part of defendants. In light of this ruling, it is not necessary to address whether Boyle provides sufficient facts to withstand summary judgment on the intent and causation elements of intentional infliction of emotional distress.
VII.
Defendants next move for summary judgment on the 1983 claims (counts one, two and three) because Boyle fails to provide sufficient evidence of a violation of his constitutional or civil rights. They also
To establish liability under
The First Amendment provides a basis for a
Defendants argue that Caido and Morse “sought the criminal complaints against” Boyle based on probable cause. (Docket Entry # 26, § 111(G)). As previously discussed in part III, Boyle fails to provide sufficient facts for a reasonable finder of fact to find that Caido or Morse acted without probable cause relative to the larceny charges.
Alternatively, even without a showing of the absence of probable cause, there is still an insufficient showing of a causal connection between the animus and the injury.
See Hartman v. Moore,
The summary judgment record, however, fails to provide sufficient facts regarding the existence of probable cause for the August 28 and 29, 2006 filings by Caido and Morse of applications for criminal complaints based on the viоlations of a municipal bylaw or ordinance for operating a business without a license in violation of section 21. Without more, Geiler’s June 28, 2006 email itself does not establish probable cause as a matter of law for the July 17 and August 16, 2006 offenses. The summary judgment record does not describe what took place on July 17 or on August 16, 2006. Caido’s and Morse’s affidavits simply state they believed they had probable cause without providing any detail about the circumstances surrounding the July 17 and August 16, 2006 offenses or the facts at the time they filed the applications. Positing no other argument to support summary judgment of the First Amendment retaliatory prosecution claim relative to the two operating without a licenses charges in violation of section 21, this aspect of Count One remains viable. 42
Defendants also fail to address the retaliation claim based on subjecting Boyle to the false Cape Cod Times articles published on July 21 and September 8, 2006, in violation of Boyle’s First Amendment free speech to speak in a manner contrary to the prevailing thought in law enforcement.
43
The contours of such a
of inspections and “trumped up allegations of deficiencies” in retaliation for the plaintiffs exercise of protected speech that challenged the regulatory findings and requirements). “Even if the plaintiff demonstrates these factors, the defendant can still prevail on a motion for summary judgment if it can show that it would have taken the same adverse action even in the absence of the protected conduct.”
Cotarelo v. Sleepy Hollow Police Department,
Defendants also seek summary judgment because the Fourth Amendment’s requirement of a seizure dooms any
Count One also refers to “equal protection” and the Fifth and Fourteenth Amendments. These conelusory references fail to avoid summary judgment relative to the violation of a constitutional right.
See Lopez-Carrasquillo v. Rubianes,
The Equal Protection Clause of the Fourteenth Amendment requires states to treat all similarly situated persons equally.
Plyler v. Doe,
As to the Fifth Amendment, Boyle fails to articulate the nature of the violation. The Fifth Amendment, which is applicable to state actors by means of the Fourteenth Amendment,
46
Chavez v. Martinez,
The Fourteenth Amendment fails to serve as a basis for Boyle to maintain a
In sum, the
Defendants next seek summary judgment on the
Notwithstanding Boyle’s pro se status, it is his underlying “burden to identify the specific constitutional right infringed.”
Nieves v. McSweeney,
Boyle also fails to establish sufficient facts to support a conspiratorial agreement. The
Count Three alleges a
“As a general matter, a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”
DeShaney v. Winnebago County Department of Social Services,
To the extent Count Three seeks to impose liability on Klimm for a failure to “instruct, supervise, control, and discipline” Caido, Morse and Finnegan (Docket Entry # 1, ¶¶ 48-49), there must be a showing of “ ‘deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation.’ ”
Sanchez v. Pereira-Castillo,
As a final matter and in addition to referencing
VHI.
Defendants move for summary judgment on the
In order to state a cause of action arising under
Boyle is a white male and does not suggest that he belongs to a protected class. Hence, there is an absence of evidence suggesting the requisite class based animus in a
IX. Qualified and Conditional Immunity
Defendants move to dismiss the
Beyond setting out the law, defendants’ qualified immunity consists of a single paragraph. Defendants argue that the police did not arrest Boyle but instead sought criminal complaints. They incorrectly assert that “Boyle pled guilty to the ordinance violations” whеn he only pled guilty to one of the ordinance violations. They summarily state that “defendants acted reasonable[sic].” They also maintain that, “the officers relied on the statements of civilians when they sought criminal charges” 50 and “[c]learly they had probable cause.” (Docket Entry # 26, § 111(1)).
The qualified immunity argument is bereft of any reference to the supervisory liability of Klimm (Count Three) and the First Amendment retaliation claim based on the July and September 2006 Cape Cod Times articles.
51
Accordingly, the argument is not adequately raised.
See Higgins v. New Balance Athletic Shoe, Inc.,
In the context of the remaining
Where, as here, the qualified immunity analysis arises at the summary judgment stage, there is a tension because the summary judgment standard “requires absolute deference to the nonmovant’s [facts]” whereas the qualified immunity analysis “demands deference to the reasonable, if mistaken, actions of the movant.”
Morelli v. Webster,
The version of events that best comports with the summary judgment record is that on May 9, 2005, the wife of Five Star’s owner was found murdered. Media outlets, including the Cape Cod Times, became interested in the story and contacted Boyle, who gave scenarios that “ran counter to prevailing thought in law enforcement.” (Docket Entry # 1, ¶¶ 6, 10 & 11). Boyle does not provide the date[s] he gave these scenarios or the dates when the media outlets published his comments.
On August 18, 2005, Boyle purchased Five Star. The Cape Code Times continued to run stories about the murder. Boyle therefore asked a reporter to stop mentioning Five Star because it hurt the business. The Cape Cod Times reporter agreed.
On the one year anniversary of the murder on May 9, 2006, the Cape Cod Times ran a feature story about the murder. The feature included the amount Boyle paid to purchase Five Star, which he sold on May 1, 2006.
On June 28, 2006, Geiler, the licensing agent for the Town of Barnstable, sent an email to Sergeant Sweeney of the Barnstable Police Department. The email informed Sweeney that King’s Coach limousines did not have valid 2006 permits. Geiler also instructed Sweeney to make the patrol force aware that King’s Coach vehicles did not have valid 2006 permits and to stop such vehicles to determine “where they were operating from or who is running the company if not Mr. Boyle.” (Docket Entry #26, Ex. 1). Caido filed an application for a criminal complaint against Boyle on August 9, 2006, for the offenses of violating a municipal bylaw or ordinance by operating a business without a license on July 10 and 21, 2006, in violation of section 21. This application preceded the filing of the August 28 and 29, 2006 applications. The alleged offenses in the latter applications for operating a business without a license in violation of a municipal bylaw or ordinance in violation of section 21 took place on July 17 and on August 16, 2006.
The summary judgment record is devoid of evidence as to what took place on either July 17 or August 16, 2006. On September 13, 2006, Caido told Green and Crowley that he did not want them “to drop anything on” John Boyle. (Docket Entry # 33, Ex. 18). On February 20, 2007, Boyle plead guilty to the operating a business without a license offense committed on July 17, 2006.
52
The court continued
Turning to the first prong of the qualified immunity analysis, the facts alleged do not make out a violation of the First Amendment retaliation claim for filing the operating without a license in violation of section 21 charges for the July 17 and August 16, 2006 offenses. In order to succeed, there must be a showing that the plaintiffs exercise of his free speech was “a ‘substantial factor’ or a ‘motivating factor’ for the defendants’ retaliatory conduct.” Rec
trix Aerodome Centers, Inc. v. Barnstable Municipal Airport Commission,
Thus, the fact that a police officer harbored some retaliatory animus does not violate an individual’s First Amendment rights. Instead, a constitutional violation takes place only where the retaliatory animus was a but for cause for criminal proceeding without which there would have been no such prosecution. Given the constitutional violation at issue of a First Amendment retaliatory prosecution, animus and causation are inevitably intertwined with the qualified immunity analysis.
See Mihos v. Swift,
Here, there must be a causal connection between the alleged retaliatory animus against Boyle for speaking out about the murder contrary to the prevailing law enforcement view and the August 28 and 29, 2006 filing of the applications for a criminal complaint for operating a business without a license in violation of a municipal bylaw or ordinance in violation of section 21. In light of Geiler’s email, the Barnstable police knew that King’s Coach did not have valid 2006 limousine permits. It is not so apparent that they knew about Boyle speaking out about the murder in a manner contrary to the prevailing law enforcement view. The fact that Caido did not want Green to drop a proceeding investigating a lack of workers’ compensation insurance on September 13, 2006, may raise an inference of some retaliatory animus two weeks earlier but it is not enough to find a First Amendment violation in the case at bar.
See generally Hartman v. Moore,
The time period between Boyle speaking out in a manner contrary to prevailing law enforcement and the August 28 and 29, 2006 filings attenuates the causal connection as does the absence of evidence to show Caido and Morse’s involvement in the murder investigation. While it is true that circumstantial evidence may suffice to show a retaliatory animus, the record does not contain sufficient facts that Caido’s and Morse’s alleged animus against Boyle for making the statements about the May 2005 murder was a substantial or motivating factor in their decisions to file the applications on August 28 and 29, 2006. In any event, the evidence of a legitimate basis for the applications, i.e., the reasonable belief that Boyle was operating the business without a permit for 2006, rebuts any showing that animus was a substantial or motivating factor. Indeed, the record fails to include sufficient facts indicating Caido or Morse would not have filed the applications but for Boyle’s contrary comments to media outlets.
As to the second prong, it was clearly established in July and August of 2006 “that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.”
Hartman v. Moore,
A reasonable police officer in either Caido’s or Morse’s shoes would not have understood that his conduct violated Boyle’s First Amendment rights. Boyle’ speech contrary to the prevailing law enforcement view took place at a different time than the August 28 and 29, 2006 prosecutions. In light of Geiler’s email, Barnstable police had a legitimate and reasonable belief that Boyle was operating the business without a valid 2006 license in violation of the Town Rules and Regulations thereby violating section 21. A reasonable police officer would not have understood that the desire to retaliate against Boyle for speaking to media outlets in a manner contrary to the prevailing law enforcement view about a May 2005 murder was a but for cause of filing the applications on August 28 and 29, 2006. A reasonable police officer, similarly situated to Caido and Morse, would have believed that his conduct in filing the applications on August 28 and 29, 2006, did not violate Boyle’s First Amendment rights.
Defendants next assert a conditional privilege applies to the libel, slander and defamation claims to the extent based on the statement Caido made to Green and Crowley. (Docket Entry # 26, p. 19) (citing
Draghetti v. Chmielewski,
As demonstrated by the two cases defendants cite, Massachusetts law creates a conditional privilege for “[statements made by public officials while performing their official duties.”
Mulgrew v. City of Taunton,
The particular context for Caido making the statement is not clear. It is also not clear why Caido was present when he spoke to Green. A genuine issue of material fact therefore exists regarding whether Caido made the statement while performing an official duty. Summary judgment on the basis of the conditional privilege applicable to a common law defamation claim under Massachusetts law for public officials performing their official duties is not appropriate. 55
CONCLUSION
The motion for summary judgment (Docket Entry #25) is ALLOWED in part and DENIED in part. Chief McDonald and Murphy are dismissed. The
Notes
. Statements of law are not considered.
. Citations to the summary judgment record are provided primarily only for direct quotations.
. The Rules and Regulations also require any operator of a vehicle for hire must also have a vehicle for hire license. (Docket Entry # 33, Ex. 2). Footnote number 28 sets out the relevant language.
. The complaint does not identify the location of the "Department of Telecommunications and Energy.” (Docket Entry #1, ¶ 2). The Shuttle King licenses are not at issue in this case.
. Boyle won the right to purchase Five Star by sealed bid. (Docket Entry # 1, ¶ 4). He began operating the business on June 9, 2005, in an attempt to preserve the company’s value. (Docket Entry # 1, ¶ 3).
The company was being sold at least in part due to a resurgence of media interest in Melvin Rеin ("Rein”), the company’s previous owner, following the unsolved murder of his wife. (Docket Entry # 1, ¶ 6). Boyle began assisting the police with the investigation thus having access to non-public information. (Docket Entry # 1, ¶ 9). When media outlets asked Boyle for his input, Boyle provided "scenarios that ran counter to prevailing thought in law enforcement and published accounts in the local paper.” (Docket Entry # 1, ¶ 11).
. Boyle does not specify when he placed King’s Coach up for sale. The record includes, however, a letter from a potential buyer dated October 28, 2005, in which the buyer informed Boyle he would be unable to purchase the business at that time. (Docket Entry # 32, Ex. 9).
. According to defendants, the Office of Regulatory Services contacted Boyle on December 20, 2005, to inform him that his licenses were in "jeopardy of not being renewed.” (Docket Entry # 30, ¶ 5). The Barnstable Office of Regulatory Services then gave Boyle until January 20, 2006, to have his vehicles inspected and licenses renewed. (Docket Entry #30, ¶ 5; Docket Entry #26, Ex. 11, ¶ 10).
Boyle argues that such a deadline was never set and notes that the only evidence proffered to support it is the licensing agent's affidavit (Docket Entry # 26, Ex. 11). (Docket Entry # 32, p. 8). Boyle also complains that this court did not allow him to depose Geiler. (Docket Entry # 32, p. 8).
. Defendants maintain that the letter was a notification to Boyle that if he did not have his vehicles inspected by June 20, 2006 he would not be issued permits for 2006. (Docket Entry # 30, ¶ 5).
. Boyle did not know about this letter until approximately mid-September 2006. (Docket Entry # 1, ¶¶ 37 & 38).
. Boyle argues that because he had been granted an extension on his permits through June 20, 2006, he was in fact licensed to operate his business in 2006. (Docket Entry #32).
. In his capacity as a council member, Boyle had approved the hiring of Chief Finnegan in 1999. (Docket Entry # 1, ¶ 26).
. Chief Finnegan has no recollection of any contact with Boyle regarding his complaints against the Town of Barnstable or the Barnstable Police Department. (Docket Entry # 26, Ex. 13, ¶ 4).
. Like other applications, the above application spells Caido’s name as Caiado. To avoid confusion, this court adheres to the spelling in the complaint.
. Boyle accuses Caido of not following his role of submitting police reports and facts to a neutral mаgistrate to determine probable cause. (Docket Entry # 32, p. 14). The record belies the accusation. Even assuming dubitante that the complaint issued without the approval of a clerk magistrate, Boyle still fails to show that Caido lacked probable cause at the time of the application for purposes of the malicious prosecution claim or that he acted with an ulterior purpose for purposes of the abuse of process claim.
. Boyle cites and relies on these charges as a basis for relief. See fh. 25.
. Boyle refers to a "Richard Fisher” in the complaint and elsewhere. Defendants submitted an exhibit that suggests Boyle intended to name Richard Verling. (Docket Entry # 1, ¶ 34; Docket Entry # 26, Ex. 3). Boyle subsequently indicated that the two names refer to the same person. (Docket Entry # 32, p. 12).
. Boyle cites and relies on these charges as a basis for relief. See fn. 25.
. The police records include the details about the complaints Fisher made about the larceny to the Barnstable Police Department.
. The police narrative authored by Barnstable Patrolman Timothy McPeck ("McPeck”) reflects that McPeck pulled over a black sport utility vehicle ("SUV”) with a malfunctioning plate light. McPeck ran the vehicle’s registration and determined that the black SUV did not match the registration. When pulled over, Boyle could not produce the registration upon request but did produce his driver's license. Two other police officers arrived to assist McPeck. A registry check revealed that the license “was suspended for a payment default.” (Docket Entry # 26, Ex. 5). Upon being informed, Boyle informed McPeck that his " ‘P** license [was] not suspended.’ ” (Docket Entry # 26, Ex. 5). McPeck рlaced Boyle under arrest for the above noted charges.
. Boyle filed an exhibit which he describes as "a MA Department of Industrial Accidents investigator’s report.” (Docket Entry # 1, ¶ 37). The report provides a foundation for a number of the claims. It consists of a single page narrative of events that took place on certain dates in connection with Green’s investigation of Boyle. The entry for September 13, 2006, notes that Caido told Green, who Boyle identifies as a "Department of Industrial accidents investigator” (Docket Entry # 32, p. 5), and "Asst. General Counsel Charles Crowley” ("Crowley”) that he, i.e., Caido, did not "want us to drop anything on this John Boyle because everybody in the department knows all about [Boyle] and his going ons.” (Docket Entry # 26, Ex. 9; Docket Entry # 33, Ex. 18). The September 13, 2006 entry also states that Green and Crowley went to the Barnstable District Court
. Boyle proffers a generalized conclusion that defendants met or communicated with one another, upon information and belief, to "conspire against” him and King's Coach. (Docket Entry # 1, ¶ 29). Boyle alleges that defendants utilized the Cape Cod Times articles to conspire against him. (Docket Entry #1, ¶ 30). Such conclusions do not constitute part of the summary judgment record.
See Estate of Bennett v. Wainwright,
. The Barnstable Police Department's failure to come to Boyle's aid does not provide sufficient evidence that Caido acted with an ulteri- or purpose in submitting an application for a criminal complaint for offenses allegedly occurring on August 16, 2006, or that Morse acted with an ulterior purpose in submitting an application for a criminal complaint for offenses allegedly occurring on July 17, 2006.
. In pertinent part, the letter states that, "According to our conversation it would seem that they, by failing a lawful request, have conveniently allowed evidence to be destroyed. Why wouldn’t they respond to each request?” (Docket Entry # 33, Ex. 20).
. On December 15, 2010, this court heard argument on defendants' motion for a protective order (Docket Entry #21) relative to a number of depositions Boyle noticed for December 30 and 31, 2010, including those of Murphy and Chief McDonald. This court required Boyle to pick three deponents. Boyle did not choose either Murphy or Chief McDonald.
.
See
. Count Three also sets out a failure to supervise claim against Klimm. Although defendants seek summary judgment on all of the counts, they do not address the failure to supervise claim against Klimm in Count Three. The claim therefore survives summary judgment at this point in time. Defendants do not raise Klimm’s qualified immunity relative to the failure to supervise claim.
. The complaint describes two charges filed by Caido in one application and two charges filed by Morse in another application. (Docket Entry # 1, ¶ 34). As previously described, Caido filed charges for the alleged larceny of $407.20 from Fisher and the operating of a business without a license in violation of a municipal ordinance. The charges arose out of conduct that took place on August 16, 2006. (Docket Entry # 26, Ex. 4; Docket Entry # 1, ¶ 34). Morse filed charges for the alleged larceny of $141.88 from Verling and the operating of a business without a license in violation of a municipal ordinance. The charges arose out of conduct that took place on July 17, 2006. (Docket Entry # 26, Ex. 4; Docket Entry # 1, ¶ 34).
Although Boyle asserts in the complaint that he will introduce "30 plus” additional charges (Docket Entry # 1, ¶ 39), he has not filed these charges to date. Defendants produced evidence of additional charges for offenses which, as described in the factual background, took place on July 10 and 21, 2006, and on October 2, 2006. (Docket Entry # 26, Ex. 2, 5 & 6). Boyle does not identify these offenses as the basis for the claims. Accordingly, while this court considers these additional charges, the discussion focuses on the four charges made by Caido and Morse for the alleged misconduct that took place on July 17 and August 16, 2006.
. In pertinent part, section 30(1) provides, "Whoever ... unlawfully, and with intent to steal or embezzle, converts ... the property of another ... shall be guilty of larceny.” Section 30(2) defines "property” to include money. Although section 30 encompasses "larceny, larceny by false pretenses, and embezzlement,” these offenses "have different required elements.”
Commonwealth v. Mahoney,
. "The power of cities and towns to enact ordinances and by-laws is derived both from the ‘home rule' amendment to the Constitution of Massachusetts,” Ma. Const, art. 89, "and express grants from the legislature,” such as section 21. 18 Douglas A. Randall and Douglas E. Franklin, Massachusetts Practice Series § 15.1 (5th ed.2006). As previously explained, section 21 gives towns the authority to "make such ordinances and bylaws” and to "affix penalties for breaches.” Mass. Gen. L. Ch. 40, § 21. The relevant bylaw or ordinance in the Rules and Regulations mandates that, “no person shall engage in the business of transporting persons for hire in a vehicle without first having obtained a permit from the Town Manager.” (Docket Entry # 33, Ex. 2). The Rules and Regulations also state that the license "shall be valid for such term as the Examiner shall determine.” (Docket Entry # 33, Ex. 2). Geiler avers that operating licenses are "issued on an annual basis” and that Boyle did not have one for 2006. (Docket Entry #26, Ex. 11; Docket Entry # 1, ¶ 15). Without providing a date, Boyle attests that he "contacted the Licensing Division of Barnstable who(áic) agreed to allow Boyle an extension on renewing his limousine license because of a potential sale.” (Docket Entry # 1, ¶ 14).
.See footnote 25.
. As explained by the Massachusetts Supreme Judicial Court in
Wynne,
a criminal prosecution terminates "in favor of the plaintiff when the district attorney formally abandons the criminal proceedings by a nolle prosequi or a motion to dismiss” as long as "the reasons stated for the nolle prosequi or dismissal [are] consistent with the innocence of the accused.”
Wynne,
. Verling аlso canceled a July 21, 2006 pickup which the clerk assured Verling he would note. Verling advised the detective that, upon contacting his credit card company on August 7, 2006, to verify the credit, he discovered a $327.68 charge by Lifestyle Transportation. Verling then contacted King's Coach and discovered it had contracted with Lifestyle Transportation to do the July 21, 2006 pickup notwithstanding Verling's cancellation. Lifestyle Transportation agreed to credit the charge. (Docket Entry # 26, Ex. 3).
.
. Footnote five sets out the media coverage.
. Insofar as Boyle refers to using "the media Cape Cod Times with the ulterior purpose, to wit, for personal political vendettas and public condemnation of Boyle” (Docket Entry # 32, § 111(E)), the use of the media is not the use of process for an ulterior purpose.
. Except possibly for the first argument, defendants do not distinguish between libel, slander and defamation in making their argument. They primarily cite and rely on cases involving defamation claims. (Docket Entry # 32, § 111(E)). "Defamation encompasses the torts of libel and slander-the one being in general written while the other in general is oral.”
Draghetti v. Chmielewski,
. The article does not refer to Verling by name. Rather, it states that, "Barnstable police brought forth a complaint from a Center-ville man who told police he canceled two trips with King's Coach in July, but claims his credit card was still charged $141” (Docket Entry # 33, Ex. 22; Docket Entry # 26, Ex. 8), an amount almost identical to the $141.88 amount charged to Verling's credit card (Docket Entry # 26, Ex. 3).
. The article similarly notes that, "On July 10 an officer found a King[’]s Coach driver on Main Street waiting to take clients to a concert in Boston” and that "[t]he car was seized because it was unregistered at the time.” (Docket Entry # 33, Ex. 22; Docket Entry # 26, Ex. 7).
. See footnote 18.
.
Homesavers Council of Greenfield Gardens, Inc. v. Sanchez,
. The Court in
Hartman
imposed the absence of probable cause requirement for a
. The deadline for filing a dispositive motion has passed. If there are facts to establish probable cause as a matter of law or if defendants have other arguments that merit summary judgment on this aspect of Count One, they should seek an extension of time to file a second summary judgment motion. This court expresses no opinion on the merits of a motion for an extension of time.
. The complete failure to address this aspect of Count One extends to defendant's qualified immunity argument. The qualified immunity argument focuses entirely on the retaliation based on the criminal proceedings, i.e., that Boyle pled guilty, that the officers had probable cause and that they did not arrest Boyle. (Docket Entry # 26, pp. 18-19). Although the deadline to file a dispositive motion has passed, qualified immunity provides an immunity from suit and an entitlement not to stand trial.
"The qualified immunity doctrine provides defendant public officials an immunity from suit and not a mere defense to liability.” Maldonado v. Fontanes,568 F.3d 263 , 268 (1st Cir.2009); see also Mitchell v. Forsyth,472 U.S. 511 , 526,105 S.Ct. 2806 ,86 L.Ed.2d 411 (1985) (noting that qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation”).
Costa-Urena v. Segarra,
. This portion of the Hartman opinion was discussing the features of a section 1984 retaliation claim resulting from an public employee's speaking out in a manner critical to the government.
. Defendants also erroneously assert that the claims include the language "due process.” No such allegation or language appears in the complaint.
. The Fifth Amendment in and of itself "only applies to the actions of the federal government.”
Washington v. School Bd. of Hillsborough County,
. See footnote 24. The
. Massachusetts common law recognizes two types of civil conspiracies.
Kurker v. Hill,
. See the next footnote.
. This argument only applies to the already dismissed
. See footnote 38.
. Pleading guilty to an offense generally bars a
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid a§ 1983 plaintiffmust prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254 . A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under§ 1983 .
Id.
at 486-487,
The fact that Boyle pled guilty to the July 17, 2006 operating without a license offense on February 20, 2007, however, is irrelevant to the probable cause inquiry which is based on the totality of the circumstances at the time of the August 28, 2008 filing of the application.
. The Supreme Court decided Hartman on April 26, 2006, several months prior to the alleged misconduct.
. The Court in
Hartman
nevertheless noted that because a prosecutor would be absolutely immune, the First Amendment retaliatory prosecution claim would be brought against a nonprosecutor defendant such as a policeman who, bent on retaliation, induced or influenced the prosecutor to bring the criminal charges.
Hartman v. Moore,
. To state the obvious, this privilege is different from the qualified immunity defense that applies to the
. The
.The deadline for filing a dispositive motion is passed. Accordingly, defendants will require an extension of the deadline in order to file a second summary judgment motion to address these remaining claims prior to any trial. This court expresses no opinion on the merits of such a motion.