MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter is before the court on Defendants’ Motion for Summary Judgment (Docket # 46). The plaintiff, Larry Grant (“Grant”), has brought suit against John Hancock Life Insurance Company (“Hancock”) and two Hancock security officers, John Glancy (“Glancy”) and Steven O’Brien (“O’Brien”), alleging constitutional and common law claims resulting from Grant’s initial employment with Hancock, a physical altercation between Grant and the security officers shortly after the termination of his employment with Hancock, and the subsequent criminal prosecution of Grant for assault and battery. Fourteen claims are being pressed against the defendants: 1 claims under 42 U.S.C. § 1983 against Glancy and O’Brien (Count I), against all three defendants (Count II), and against Hancock alone (Count III); common law claims for malicious prosecution (Count V), assault (Count VI), battery (Count VII), civil conspiracy (Count XII), intentional infliction of emotional distress (Count XIII), and false imprisonment (Count XV) against ah defendants; a claim under the Massachusetts Civil Rights Act against all defendants (Count VIII); and claims of neghgence (Count IX), negligent infliction of emotional distress (Count XIV), promissory estoppel (Count X), and fraud or deceit (Count XI) solely against Hancock.
For the reasons detailed herein, the motion for summary judgment is ALLOWED IN PART and DENIED IN PART.
II. STATEMENT OF FACTS 2 Grant’s Employment at Hancock
Larry Grant began working for John Hancock Life Insurance Company in July *353 of 1996. (PF ¶ 13). Grant contends that during the interview process he had been promised that his job duties would not include actuarial modeling using a software program called “PTS,” a fact which Hancock disputes. (PF ¶¶ 3, 6, 10; DF ¶¶ 20-27). It is undisputed that Grant was immediately assigned duties involving PTS modeling. (PF ¶ 14; DF ¶ 28). Grant allegedly voiced complaints about having to perform this work beginning in December 1996 (PF ¶¶ 17,18, 21), but was nevertheless given other projects involving PTS modeling. (PF ¶¶ 18, 20, 25). In the Spring or Summer of 1998, Grant began seeking work elsewhere, and eventually secured a position with another employer to begin on September 14, 1998. (PF ¶¶ 31, 34; see DF ¶ 28).
Termination of Grant’s Employment and Altercation with Hancock Security Officers
On September 1, 1998, Grant allegedly informed his Hancock supervisor, William Hines, that he was resigning and that his last day of work would be September 11, 1998. (PF ¶¶ 30, 35-38). He sent an email to Hines on September 2, 1998, stating that his “resignation "will commence as of September 1, 1998.” (DF App. at 187; PF ¶ 41). Grant did not report to work on September 8 and 9, 1998 due to illness. (PF ¶¶ 42, 44). On September 11, 1998, Grant reported to work, he claims for the purpose of collecting his personal belongings. (PF ¶ 45). It is undisputed that on the afternoon of September 11, 1998, Hines told Grant that he was immediately terminated due to unexplained absences, and instructed Grant to collect his belongings and leave. (PF ¶¶ 48, 51; DF ¶ 32).
After Grant had packed some of his belongings from his cubicle, Hancock security officer Steven O’Brien told Grant that Grant’s bags would have to be searched before Grant could leave. (PF ¶¶ 52-54). When Grant refused to let O’Brien search his bags without a police officer present, O’Brien summoned his supervisor. (PF ¶ 56). Grant was allowed to leave and told O’Brien’s supervisor that he would soon return to collect the balance of his possessions. (PF ¶¶ 57-58). Grant went home, dropped off his personal belongings and then returned to the Stuart Street entrance at Hancock, as he had been instructed by O’Brien’s supervisor. (PF ¶¶ 58-59). When Grant returned, he was escorted to his cubicle by O’Brien and John Glancy, another Hancock security officer. (PF ¶ 59). At Grant’s cubicle, Grant began to retrieve his belongings and then tried to close down a computer application. (PF ¶ 63). The precise details as to what occurred next are in dispute, although it is undisputed that Grant and the security officers got involved in a physical altercation which resulted in Grant being arrested without a warrant and taken to the police station, where he was booked, processed and released. That evening, Grant went to Brigham and Women’s Hospital, where he received a physical and psychological exam and then was released. (DF ¶¶ 44, 67).
According to Grant, at his cubicle, while he was trying to shut down his computer, Glancy told him not to use the computer, struck Grant in the arm, and then turned off the computer. (PF ¶ 64). Grant then used the telephone at the cubicle to call directory assistance to get the number for a police station, and was told by Glancy that “I am the police,” “I am the Boston Police, I work for the Boston Police Department.” (PF ¶¶ 67, 69). See also Incident Report completed by Glancy where Glancy wrote “SO Glancy informed Mr. *354 Grant he was a Special Officer.” (DF App. at 216). In fact, Glancy is a Boston Special Police Officer. (PF ¶ 80).
According to Grant, during the altercation Glancy told Grant he was trespassing. (PF ¶ 68). While Grant was holding the phone, Glancy grabbed Grant, hung up the telephone, pushed Grant onto the desk, hit Grant several times, and sprayed him with pepper spray. (PF ¶¶ 70-73). According to Grant, Glancy and O’Brien threw Grant to the floor, and O’Brien put him in a headlock while Glancy held his arms and handcuffed him. (PF ¶¶ 74-75, 77). After cuffing Grant, Glancy again hit Grant in the face and sprayed him with pepper spray. (PF ¶ 78). O’Brien jumped on Grant’s back with his knees. (PF ¶ 79). The Boston police were called to the scene, and Grant was taken to the police station where he was booked and released. (PF ¶ 81, DF ¶ 42).
Grant’s Criminal Prosecution
Grant was arraigned on September 15, 1998 for assault and battery, at which time he was represented by counsel. (PF ¶ 84; DF App. at 218). By November 1998, Grant, through his then counsel, informed Hancock of Grant’s intention to sue Hancock. (PF ¶ 85). Grant was tried for five days, ending on April 6, 1999, for assault and battery. (DF ¶ 53). The trial ended in a hung jury. (Id.) Grant was tried again and was acquitted on November 8, 1999. (DF ¶ 64). Grant was represented by new counsel during this trial. (See PF ¶ 92). Grant contends that the Assistant District Attorney who prosecuted both cases, Corey Flashner, took the position that the criminal action would be dropped if Grant released all of his claims against Hancock. (See PF ¶¶ 85-101). Grant contends that Karen Morton, Vice President and Corporate Counsel for Hancock, knew that the claims against Grant were baseless, yet continued to pursue them in an attempt to get a release from Grant. (See PF ¶¶ 85, 94). Grant also contends that Hancock assisted the State in prosecuting him and in helping prepare the State’s case against him. (PF ¶ 101). Hancock strenuously denies that it offered to drop any claims in exchange for a release or that it was in any way responsible for the decision to pursue the criminal prosecutions of Grant. (See DF ¶¶ 50-63). Rather, it is Hancock’s position, that the District Attorney’s Office alone made the decision to prosecute. (Id.)
III. DISCUSSION
A. 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 no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one which has the “potential to affect the outcome of the suit under applicable law.”
Sanchez v. Alvarado,
Therefore, to prevail on a motion for summary judgment, “the moving party must show that there is an absence of evidence to support the nonmoving party’s position.”
Rogers v. Fair,
B. Claims Under 42 U.S.C. § 1983
Grant has brought three separate counts under 42 U.S.C. § 1983. Count I arises out of the altercation on September 11, 1998 and is against Glancy and O’Brien only. Count II is based on claims of malicious prosecution, and is against all three defendants. Count III, against Hancock only, is based on an alleged conspiracy between Hancock and the District Attorney’s Office in connection with the criminal prosecutions brought against Grant. For the reasons detailed herein, the motion for summary judgment is denied as to Count I and allowed as to Counts II and III.
Section 1983 provides a federal cause of action to redress violations of the constitution or of federal rights. It provides as follows:
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 Statеs 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. “There are two essential elements of an action under section 1983: ‘(i) that the conduct complained of has been committed under color of state law, and (ii) that this conduct worked a denial of rights secured by the Constitution or laws of the United States.’ ”
Martinez v. Colon,
1. Count I — The Altercation With Glancy and O’Brien 3
The defendants seek summary judgment on the claim against Glancy and O’Brien relating to their conduct with regard to their altercation with and the subsequent arrest of Grant, on the grounds both that Glancy and O’Brien are private individuals and not state actors, and that Grant has not established any violation of his constitutional rights. There are disputed facts as to both of these elements, and, therefore, the motion for summary judgment as to Count I is denied.
State Action — Glancy
It is undisputed that Glancy was a Special Police Officer for the City of Boston at all relevant times, as well as being a private security guard for Hancock. Resolving whether he was acting under color of state law at the time of the altercation and arrest of Grant requires “an assessment of the totality of the circumstаnces, in which we must consider both ‘the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.’ ”
Zambrana-Marrero v.
*356
Suarez-Cruz,
At the time of the altercation, Glancy was a Boston Special Police Officer specifically authorized to serve as such on Hancock’s premises. (PF App. at Ex. 7— Glancy depo. at 22; PF App. at Ex. 6— Petition for Special Police Officer). According to Glancy, this appointment granted him the power of arrest on Hancock property in accordance with “Rule 400” of the “Boston Police guidelines for special police officers.” (PF App. at Ex. 7 — Glancy depo. at 23). Reports of incidents in which Glancy used handcuffs as part of his security detail at Hancock were regularly sent to the Boston Police Department. (PF App. at Ex. 7 — Glancy depo. at 9-10).
During the altercation with Grant, Glan-cy admittedly portrayed himself to Grant as a police officer. (See DF App. at 216). Grant testified that Glanсy told him that “he was the Boston police and that he worked for the Boston Police Department” as he threatened to arrest Grant for trespassing. (PF App. at Ex. 2 — Grant depo. at 242). Glancy testified that he did, in fact, arrest Grant for assault and battery. (PF App. at Ex. 7 — Glancy depo. at 24). Glancy completed an Incident Report at the police station, which describes the “type of incident” as “Assault & Battery Arrest.” (DF App. at 216). Glancy is listed as the “victim” as well as the “reporting officer.” (Id.) In the Boston Police Department Arrest Booking Form, “John F. Clancy [sic]” is listed as the “Arresting Officer” and his status is described as “SPEC 00217.” 4 (PF App. at Ex. 6). In addition, Glancy (improperly listed as Clancy) is identified as having read Grant his rights. (Id.) The booking officer was a Boston Police Department Officer. (Id.)
In cases involving private security guards who perform some police functions, “courts find state action when state or municipal police wrongfully arrest and/or otherwise'mistreat a citizen while acting in cooperation with a private security officer with whom they share a ‘symbiotic relationship.’ Also, courts find state action when a private actor, upon whom the state confers limited legal authority, actually uses that authority when engaging in the conduct complained of.”
Fusco v. Medeiros,
State Action — O’Brien
Despite not having personally exercised the power of arrest, O’Brien’s participation in the seizure of Grant may be sufficient for a jury to conclude that he, too, should be deemed to be a state actor in connection with the altercation with and arrest of Grant. Assuming, arguendo, although the record is not clear, that O’Brien is not a *357 Special Officer too, there is still enough evidence which, if credited by the jury, may establish his liability under § 1983.
A showing that a private party and a state actor jointly deprived an individual of his civil rights exposes the private party to liability under § 1983, as the private party is also considered to be acting under color of law.
See Alexis v. McDonald’s Restaurants of Massachusetts, Inc.,
Evidence of Constitutional Violations
The defendants also move for summary judgment on Count I on the grounds that Grant has failed to establish a constitutional violation, the second element of an action under § 1983. However, this argument fails as there are sufficiеnt facts from which a jury can determine that Glancy and O’Brien violated Grant’s Fourth Amendment rights, both because he was arrested without probable cause and because the defendants used excessive force.
The Fourth Amendment requires that warrantless arrests be based on probable cause.
See Gerstein v. Pugh,
Similarly, Grant has stated a constitutional claim based on the force used by Glancy and O’Brien. “[A] viable excessive force claim must demonstrate that the police defendant’s actions were not objectively reasonable, viewed in light of the facts and circumstances confronting him and without regard to his underlying intent or motivation.”
Alexis v. Mc
*358
Donald’s,
In sum, since a reasonable jury may find that the defendants Glancy and O’Brien acted under color of state law and violated Grant’s Fourth Amendment rights in connection with the altercation and arrest on September 11, 1998, the defendants’ motion for summary judgment on Count I of the Complaint is denied.
2. Count II — Malicious Prosecution
In Count II, Grant alleges a violation of 42 U.S.C. § 1983 against Hancoсk, Glancy and O’Brien based on a violation of his “procedural due process rights, including abuse of process, malicious prosecution, malicious abuse (use) of process.” For the reasons detailed herein, summary judgment shall be entered in favor of the defendants on Count II, as Grant has failed to allege a constitutional violation sufficient to sustain a claim under § 1983.
To survive summary judgment, Grant must establish not only the elements of his underlying tort claims of improper use of process or malicious prosecution, but both state action and a deprivation of constitutional rights as well under § 1983.
Nieves v. McSweeney,
To avoid this bar to recovery, Grant asserts that his claim is premised on his alleged Fourth Amendment right to be free of malicious prosecution.
{See
Pl.’s Opp. at 20-22). However, while the First Circuit has lеft open the possibility that a § 1983 malicious prosecution claim may be actionable under the Fourth Amendment under some circumstances,
see Nieves v. McSweeney,
Grant was arrested without a warrant. Since a claim of malicious prosecution challenges a seizure made “pursuant to legal process,” events taking place prior to the issuance of the criminal complaint are not considered.
Id.
(in light of warrantless arrest, appellants have “the task of showing some post-arraignment deprivation of liberty, caused by the application of legal process, that approximates a Fourth Amendment seizure”).
See also Calero-Colon v. Betancourt-Lebron,
In
Nieves v. McSweeney,
the arrestees asserted the same deprivations as Grant, and the court entered summary judgment on their § 1983 malicious prosecution claims. There, as here, after a warrant-less arrest, “the appellants were released on their own recognizance; they suffered the stress and anxiety of knowing not only that serious criminal charges were pending against them, but also that their reputations had been sullied; they appeared before the criminal court a number of times in the pretrial period; and they endured the trial.”
3. Count III — Conspiracy
In Count III, Grant alleges that there was a conspiracy “between Hancock and the (Non-Party) State” to deprive him of his constitutional rights in connection with commencing and continuing the assault and battery prosecutions against him in an effort to “extort” him into “waiving his property right to sue Hancock.”
(See
Compl. at ¶ 165). A conspiracy claim must show “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong or injury upon another,’ and ‘an overt act that results in damages.’ ”
Earle v. Benoit,
Although not clearly stated, it appears that Grant is contending that there was a conspiracy to deprive him of his Fourth and Fourteenth Amendment rights in connection with his criminal prosecutions. However, as detailed above in connection with Count II, even assuming that Grant can establish a claim of malicious prosecution, it does not rise to the level of a constitutional violation.
By bringing the District Attorney’s Office into the conspiracy count (albeit as a “non-party”), Grant seems to be attempting to broaden his malicious prosecution claim to incorporate an argument that Hancock conspired with a state actor, to wit the District Attorney’s Office, in wrongfully seeking to obtain a civil release in exchange for an agreement to drop the criminal charges. Although the argument is not clear, Grant seems to be claiming that the addition of the request for a release establishes that the state’s prosecution of him was “arbitrary and capricious,” and proves the absence of any legitimate state interest, since the state was willing to drop the charges. (See Pl.’s Opp. at 25-26). This argument fails, however, as a matter of law and fact.
As an initial matter, Grant does not claim that the District Attorney’s Office acted improperly in initially pursuing the assault and battery case, nor could he. The prosecutor had a signed statement from Glancy which stated facts sufficient to establish a case for assault and battery. There is no evidence that the prosecutor had reason to believe that Glancy’s statement was false. Therefore, the inevitable
*360
conclusion is that the state actor in the prosecution, the District Attorney’s Office, had probable cause to pursue the case, at least initially.
See Alexis v. McDonald’s,
Similarly unsupportable is Grant’s premise that the District Attorney’s Office acted improperly in pursuing the action. Again, Grant has not produced any evidence, nor has he claimed, that the District Attorney’s Office was aware of any alleged perjury on the part of Glancy and O’Brien. 5 The first trial ended in a hung jury, evidencing that some jurors believed that there was sufficient evidence to convict. Thus, the DA was not required to drop the action.
The fact that the DA’s office may have requested a release of civil claims from Grant does not compel a different result. The United States Supreme Court has held that a prosecutor may appropriately negotiate an agreement whereby criminal charges are dropped in exchange for a release of § 1983 claims against the city and municipal officials. As the Court held in
Newton v. Rumery,
*361
The defendants point out that the actions as alleged may constitute a violation of the ethical rules governing attorneys. It is not clear whether Grant is arguing that the offer constituted an ethical violation on the part of the prosecutor’s office. In
Newton,
the Supreme Court did note that in certain situations release-dismissal agreements could be misused if, for example, they were used by prosecutors to trump up charges.
Id.
at 394,
As further grounds for his § 1983 claims, Grant also argues that somehow the criminal prosecution infringed on his right to travel. However, as detailed above Grant was never “seized” in connection with the prosecution of the cases against him. Moreover, even assuming a general constitutional “right to travel” (the source of which Grant has not identified), there is no evidence that Grant’s right to travel was in any way impinged upon by the prosecutions. 8 Thus, this argument will not sustain a claim under § 1983.
*362
Grant has alleged, but offered no evidence of, a violation of the Eighth Amendment. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” and “was designed to protect those convicted of crimes.” U.S. Const. amend. VIII;
Ingraham v. Wright,
Finally, Grant argues, without citation, that his “ninth amendment right to privacy was infringed” by the prosecutions brought against him. (Pl.’s Opp. at 24-25). The Ninth Amendment states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” but the Amendment “does not create substantive rights beyond those conferred by governing law.” U.S. Const, amend. IX;
Vega-Rodriguez v. Puerto Rico Tel. Co.,
Since Grant has not established that there was a conspiracy to deprive him of his constitutional rights, summary judgment shall enter in favor of Hancock on Count III of the Complaint.
C. Civil Conspiracy
In Count XII for “civil conspiracy,” Grant claims that two conspiracies caused him injury: Glancy and O’Brien allegedly combined to beat him and to present perjured testimony at trial, and Hancock and the District Attorney’s Office allegedly agreed to unlawfully offer to drop the pending criminal charges in exchange for a civil release of Hancock. Under Massachusetts law, two types of civil conspiracies exist. “There is precedent supporting a ‘very limited cause of action in Massachusetts’ for ‘civil conspiracy’ of a coercive type.... ‘In order to state a claim of (this type of civil conspiracy), plaintiff must allege that defendants, acting in unison, had some peculiar power of coercion over plaintiff that they would not have had if they had been acting independently.’ ”
Aetna Cas. Sur. Co. v. P & B Autobody,
The first type, the “true conspiracy,” has most frequently been applied to combinations of employers or employees working together in “concerted refusals to deal.” Mass.
Laborers’ Health & Welfare Fund v. Philip Morris,
Under the stringent standard set by Massachusetts law for the independent tort of conspiracy, Grant’s claim fails, even if he shows that the participants in each of the separate alleged conspiracies acted “in unison.” Simply put, “[t]here was no force of numbers.”
Fleming v. Dane,
The second type of conspiracy is not an independent action, but rather involves “ ‘concerted action,’ whereby liability is imposed on one individual for the tort of another.”
Kurker v. Hill,
To show “concerted action” in the claims relating to the prosecutions and alleged extortion, Grant must present evidence creating a genuine issue of fact as to whether an agreement existed between Hancock and the District Attorney’s Office to cause injury to Grant.
See Therrien v. Hamilton,
Equally unavailing is Grant’s claim that Glancy and O’Brien conspired to cause him physical harm in connection with the altercation of September 11, 1998. Tort claims addressing these acts have already been alleged against both Glancy and O’Brien. “Where the allegations of conspiracy add nothing to the underlying tort allegations, the courts have repeatedly held that ‘the gist of such an action is not the conspiracy alleged, but the tort committed against the plaintiff.’ ”
Putman v. Adams Comm. Corp.,
Civ. A. No. 84-0355-S,
D. State Law Tort Claims and The Workers’ Compensation Act
The parties have grouped a number of the state law claims together, and, for convenience, the court will address them in one section. Thus, Grant asserts the following state law claims arising out of his altercation with Glancy and O’Brien: assault (Count VI), battery (Count VII), negligent infliction of emotional distress (Count XIV) and false imprisonment (Count XV). 10 For the reasons detailed below, summary judgment shall be entered in favor of all defendants on these counts as they are barred by the exclusivity provisions of the Massachusetts Workers’ Compensation Act, Mass. Gen. Laws ch. 152, § 24.
Grant also has asserted a claim of intentional infliction of emotional distress against all three defendants arising out of both the altercation as well as the decision to continue to prosecute him. (Count XIII). Summary judgment as to this count is allowed as to the altercation, but denied insofar as it relates to the prosecution-related events. Such post-termination events are not barred by the Workers’ Compensation Act.
1. Claims Baired By The Workers’ Compensation Act
The Workers’ Compensation Act precludes common law actions for both negligence and intentional torts that arise “out of and in the course of employment.”
11
Doe v. Purity Supreme, Inc.,
*365
Status of Glancy and O’Brien
Thus, the first issue to be decided is whether Glancy and O’Brien were acting in the course of their employment when they participated in the altercation with Grant. “ ‘[Cjonduct of an agent is within the scope of employment if it is of the kind he is employed to perform ...; if it occurs substantially within the authorized time and space limits ...; and if it is motivated, at least in part, by a purpose to serve the employer ....’”
Doe v. Purity Supreme,
The fact that Glancy and O’Brien may have used excessive force, and that the use of such force may not have been in Hancock’s best interest, does not change the fact that the security guards were acting within the course of their employment. As the court held in
Boyle v. Boston Found., Inc.,
Grant’s Status as an Employee
The next issue which must be decided is whether Grant is to be considered an employee at the time of the altercation and, therefore, covered by the Worker’s Compensation Act. The facts are undisputed. Grant’s employment had been terminated. He had brought some of his belongings home and had promptly returned to the entrance specified by Hancock to meet with the security officers and be escorted to his cubicle to finish cleaning out his belongings. Under such circumstances, the Act controls.
“Generally, termination of employment extinguishes an employer’s liability for an injury to an employee which occurs after his discharge,” yet coverage has been extended under the Act “to an employee who, subsequent to discharge, was injured while leaving his employer’s premises and winding up his affairs.”
Larocque’s Case,
In the instant case, Grant’s claims relating to the altercation are closely related to his employment in both time and place, as they occurred on the Hancock premises, at Grant’s cubicle, within hours after Grant was told he was terminated, and as Grant collected the personal possessions he had stored at his workplace. Hancock’s grant of a “license” for Grant to be on the property does not affect the “time and place” analysis under the Workers’ Compensation Act.
Since Glancy and O’Brien’s actions occurred in the course of their employment, and any injuries sustained by Grant occurred likewise in the context of his employment with Hancock, the exclusivity provision of the Workers’ Compensation Act controls. For these reasons, summary judgment shall enter in favor of defendants on Grant’s claims of assault (Count VI), battery (Count VII), negligent infliction of emotional distress (Count XIV), false imprisonment (Count XV), and intentional infliction of emotional distress to the extent that it relates to the altercation of September 11,1998 (Count XIII).
2. Intentional Infliction of Emotional Distress
Part of Grant’s claim for intentional infliction
of
emotional distress re
*367
lates to Morton’s alleged involvement with the prosecution of Grant and the decision to continue to prosecute him.
(See
Pl.’s Opp. at 47-48; Compl. at ¶ 230). Such conduct is too removed in time and place from Grant’s employment to be covered by the Workers’ Compensation Act.
See Larocque’s Case,
The court does recognize the very high standard that the plaintiff will have to satisfy to prevail on this claim at trial. The plaintiff will have to show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct ...; (2) that the conduct was ‘extreme and outrageous,’ was ‘beyond all possible bounds of decency’ and was ‘utterly intolerable in a civilized community’ ...; (3) that the actions of the defеndant were the cause of the plaintiffs distress ...; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ and of a nature ‘that no reasonable man could be expected to endure it.’ ”
Caputo v. Boston Edison Co.,
[Liability cannot be predicated upon “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” nor even is it enough “that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort”; rather, “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46, comment d (1965).
Id.
at 99,
The facts relating to the post-altercation events are in dispute. It will be for the jury to determine whether Grant’s version of events, including his assertion that Glancy and O’Brien perjured themselves repeatedly, is true. It will also be for the jury to decide whether the defendants’ conduct rises to the level of intentional infliction of emotional distress.
E. Negligence
The complaint appears to assert a claim of negligence against Hancock based on the altercation with Glancy and O’Brien. (See Compl. at ¶¶ 211-212). 13 However, Grant has withdrawn such a claim, and instead argues that Hancock “knew or should have known” that Morton was acting illegally in connection with the prosecution of Grant. (See Pl.’s Opp. at 41). No case citations are included in this one paragraph argument.
*368 For the reasons detailed above, to the extent that the negligence count (Count IX) is based on the altercation, it is barred by the Workers’ Compensation Act. To the extent that it is based on the negligent supervision of Morton, Hancock is still entitled to summary judgment on this count. Grant has not alleged sufficient facts to satisfy the elements of a negligent supervision claim.
In order to prevail on a claim of negligent supervision, Grant must demonstrate that (1) there was a duty or standard of care owed to him by Hancock; (2) Hancock’s conduct constituted a breach of such duty or violation of such standard of care; (3) the employees’ conduct was the proximate cause of his harm; and (4) he suffered actual harm.
See Moylan v. Stop & Shop Cos., Inc.,
No. 99-2140,
F. Malicious Prosecution
In Count V of his complaint, Grant has asserted a state law claim for malicious prosecution against all the defendants. The fact that Grant has failed to state a claim of malicious prosecution sufficient to constitute a violation of constitutional rights does not mean that he has not alleged sufficient facts to support a state-law claim for malicious prosecution.
See Britton v. Maloney,
Central to the tort of malicious prosecution is that the actor to be held liable must have made perverse use of the litigation process by instigating criminal proceedings without probable causе and primarily for a purpose other than bringing the targeted person to justice .... Although distinct from the tort of abuse of process,... there is in malicious prosecution the common ingredient of an improper purpose, i.e., using court proceedings primarily to gain a private advantage, because of hostility and ill will, and without belief by the accuser in the guilt of the accused. Restatement (Second) of Torts, § 668 comments c-g.
Conway v. Smerling,
If a citizen registers with the police an apprehension that a crime has been committed and leaves the matter to the judgment and responsibility of the public officers, that citizen, though having started the chain of events that led to *369 legal process, cannot be charged with malicious prosecution.... If, on the other hand, the citizen presses the police to apply for a complaint, an action for malicious prosecution lies against the importuning citizen (provided, of course, that all other elements of the tort are present).
Id.
at 4-5,
Here, Grant contends that'Glancy and O’Brien fabricated the story of the events leading to his arrest to cover up their loss of control and use of excessive force. He further contends that they continued to perjure themselves at his two trials both to protect themselves and/or for Hancock’s benefit. Hancock, according to Grаnt, is liable either as a direct participant or on the basis of respondeat superi- or. These assertions, which are premised on Grant’s own eye-witness/participant version of events, raise a dispute as to material facts compelling the denial of the defendants’ motion for summary judgment.
The defendants argue that they could not have been using the court proceedings for private gain because the only private advantage allegedly being sought was a release of civil claims, and most of those claims are barred by the Workers’ Compensation Act. (See Defs.’ Mem. at 15). Hancock further argues that seeking a release was not an improper purpose — rather, if Hancock made the offer to drop the charges (which it denies), it was “simply giving Grant a chance to avoid what it thought was a legitimate criminal prosecution.” (Defs.’ Mem. at 16). However, these are issues which must be resolved by a jury.
Hancock’s argument ignores the fact that if Glancy and O’Brien were acting merely to save their jobs, this could be a sufficient motive to support a finding of malicious prosecution. There is no need to find that they were attempting to get a release. Moreover, as detailed above, not all of Grant’s claims are barred by the Workers’ Compensation Act. Furthermore, a jury could find that Hancock was not simply offering Grаnt a graceful way out, but rather was attempting to get itself out of a predicament caused by overly zealous security officers. Hancock has proffered a hyper-technical analysis of the record to support its claim for summary judgment. However, the material facts are in dispute, and the motion for summary judgment as to Count V is denied.
G. Grant’s “Reliance-Based” Claims
Grant has raised two claims challenging the means by which Hancock allegedly induced him to join the company. Thus, Count X (promissory estoppel) and Count XI (fraud, deceit, misrepresentation) against Hancock assert that Hancock improperly induced Grant to forego other opportunities and accept employment by misrepresenting the responsibilities of the job as not including substantial amounts of PTS work.
Hancock contends that, as a matter of law, Grant did not rely on these alleged representations to his detriment, since he did not have any other job offers, and any reliance was not reasonable as a matter of law since Hancock was seeking a candidate with PTS experience and his PTS experience was the focus of Grant’s interviews. However, the existence and reasonableness of Grant’s reliance is a matter for the jury, and Hancock’s motion for summary judgment on Counts X and XI is denied.
To prevail on a motion for summary judgment on the fraud claim, Hancock must еstablish “that no jury could reasonably find” that the elements of fraud have been established.
Biggins v. Hazen Paper Co.,
There are sufficient facts establishing Grant’s detrimental reliance to withstand the motion for summary judgment. The evidence is, without limitation, that he was engaged in a job search, stopped his job search and moved to take a position with Hancock based on the representations about his job responsibilities. There is no requirement “as a matter of law that an employee offer proof of missed employment opportunities in a fraud claim against an employer whose very purpose was to secure the employee’s forbearance from seeking alternative employment.”
Biggins v. Hazen Paper Co.,
“Whether rebanee is reasonable is ordinarily a question of fact for a jury. However, if, on the facts alleged ... no reasonable jury could find that the plaintiffs reliance was reasonable, the defendants are entitled to judgment as a matter of law.”
Mass. Laborers’ Health & Welfare Fund v. Philip Morris, Inc.,
For these reasons, Hаncock’s motion for summary judgment as to Counts X and XI is denied.
*371 H. Massachusetts Civil Rights Act
In Count VIII, Grant asserts that all the defendants are liable under the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, § 11H and I, 15 for interfering with his secured rights under the laws of the Constitution of the United States and the Commonwealth of Massachusetts through threats, intimidation and coercion. (Compl. at ¶ 209). Specifically, Grant contends that the defendants violated his “secured rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendment to the United States Constitution, and [his] secured right to seek legal redress under the Massachusetts Declaration of Rights.” (Id.) For the reasons detailed herein, the motion for summary judgment is denied insofar as Grant’s claim relates to the altercation with Glancy and O’Brien, and allowed insofar as the claim is based on his criminal prosecutions.
To establish a claim under the MCRA, Grant must prove that (1) his “exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation . or coercion.’ ”
Swanset Dev. Corp. v. City of Taunton,
Grant has stated a claim against all the defendants arising out of the physical altercation on September 11, 1998. There is no requirement of state action, so the status of Glancy and O’Brien as state actors is irrelevant. Under the MCRA, unlike its federal counterpart, corporations may be vicariously liable “for civil rights violations committed by their agents acting in the scope of their employment.”
Sarvis v. Boston Safe Deposit & Trust Co.,
Arranging for the arrest of Glancy may be sufficient to satisfy the requirement of threats, intimidation or coercion.
See id.
at 92-93,
The issue relating to Grant’s malicious prosecution claim as giving rise to a claim under the MCRA presents more difficult issues. Hancock argues that a threat of physical harm is needed to sustain a claim under the MCRA, and that the absence of such a physical component to Grant’s claim mandates the entry of summary judgment. Since two recent decisions have included an extensive analysis of this issue, the discussion here will be abbreviated. The bottom line is that there is a long history “of shifting Massachusetts law interpreting the scope of the ‘threats, intimidation, or coercion’ requirement. It is not clear whether economic coercion meets the requirement, or whether Massachusetts law requires a physical confrontation.”
Carvalho v. Town of Westport,
In
Carvalho,
Judge Young reviewed the history of cases addressing the definition of “threats, intimidation, or coercion” under the MCRA and concluded that a physical confrontation was not always needed. Therefore, a town’s threat to discipline a police officer for exercising his First Amendment right to speak about matters of public concern, and the officer’s еventual demotion in retaliation for his public statements, stated a claim under the MCRA.
Id.
at 101. In reaching this conclusion, Judge Young noted that
Carvalho
“fits neatly into the limited exception” to the physical confrontation requirement established by
Redgrave v. Boston Symphony Orchestra, Inc.,
Judge Young addressed the recent decision of Justice Ralph Gants, a justice of the Massachusetts Superior Court, in
Buster v. George W. Moore, Inc.,
No. 97-637-F,
Factually, the present case most closely resembles Buster in that the claimed harm is being unlawfully prosecuted in order to compel the plaintiff to give up some claims. *373 Like Buster, the present case does not fall neatly within the “breach of contract exception” found in the Redgrave case, and the absence of an actual or threatened physical confrontation in connection with the prosecution of the criminal cases against Grant 16 warrants the entry of summary judgment in favor of the defendants.
Grant’s MCRA claim relating to the criminal prosecutions must fail, however, for a more fundamental reason. As detailed above, Grant has not successfully alleged a violation of his (state or) federal constitutional rights so as to support a violation of the MCRA. The fact that Grant might have been subject to a malicious prosecution does not rise to the level of a civil rights violation under the MCRA. Therefore, summary judgment shall be entered in favor of the defendants to the extent that Count VIII seeks to assert a claim under the MCRA relating to his criminal prosecutions.
IV. CONCLUSION
For the reasons detañed herein, the defendants’ motion for summary judgment is ALLOWED IN PART and DENIED IN PART. As to the specific counts of the Complaint, the court rules as follows:
Count I Motion for summary judgment DENIED.
Count II Motion for summary judgment ALLOWED.
Count III Motion for summary judgment ALLOWED.
Count IV Previously dismissed.
Count V Motion for summary judgment DENIED.
Count VI Motion for summary judgment ALLOWED.
Count VII Motion for summary judgment ALLOWED.
Count VIII Motion for summary judgment DENIED insofar as the count relates to the altercation of September 11, 1998, ALLOWED to the extent that the count relates to the criminal prosecutions which followed.
Count IX Motion for summary judgment ALLOWED.
Count X Motion for summary judgment DENIED.
Count XI Motion for summary judgment DENIED.
Count XII Motion for summary judgment ALLOWED.
Count XIII Motion for summary judgment ALLOWED insofar as it relates to the altercation of September 11, 1998, DENIED to the extent that the count relates to the criminal prosecutions which followed.
Count XIV Motion for summary judgment ALLOWED.
Count XV Motion for summary judgment ALLOWED.
Notes
. Count IV, a claim under 18 U.S.C. § 1962(d) (RICO) was dismissed under Fed. R.Civ.P. 12(b)(6) by Judge Nancy Gertner on April 25, 2001.
. In accordance with Local Rule 56.1, defendants filed a statement of undisputed facts (Docket # 49) ("DF'j along with an Appendix ("App.”). Because this court considers the facts in the light most favorable to the plaintiff, and accepts all reasonable inferences in favor of the plaintiff, the court generally will cite to the plaintiff's response (Docket # 65) ("PF”) and his Appendix ("App.”). To the extent that there are significant disputes as to any material facts, those disputes will be not *353 ed. Additional facts will be provided in the analysis sections as needed.
. The parties treat Count I against Glancy and O’Brien as dealing only with the altercation and arrest of September 11, 1998, and the court will too. Unfortunately, the scope of each count is not that clearly defined. To the extent that Count I is rеad to encompass the post-arrest prosecutions of Grant, such a claim is addressed in connection with Count II below.
. Presumably this means Special Police Officer with badge number 217.
. Obviously, to the extent that Hancock or its employees engaged in perjury, that can be addressed through the claim for malicious prosecution as discussed infra.
. Newton does not seem to be limited to dismissals in exchange for releases of § 1983 claims. In any event, although Grant’s case is not a § 1983 action against municipal officers, as in Newton, Grant is in error when he argues that the State would have obtained no benefit from a release. For example, but without limitation, Grant asserts that Glancy was acting as an arm of the State, and the prosecutor may have been legitimately inter *361 ested in not putting Special Officers through the time and expense of civil litigation. Moreover, even though Grant did not name the District Attorney’s Office in the present litigation, he did seek and take discovery from the prosecutor’s office, and the office did have to address discovery motions. A release would have benefitted the District Attorney's Office, as well as Hancock, by not requiring it to devote time and energy to this litigation. In addition, the District Attorney's Office would have the same legitimate "tangible and intangible” considerations identified in Newton in deciding whether to continue with the prosecution. In sum, the fact that a release was sought does not raise a claim under § 1983.
. For all of these reasons, even assuming that Hancock could be liable under the Hobbs Act, as Grant argues, there is no evidence that the District Attorney's Office, the state actor, conspired to violate the Hobbs Act by seeking the release.
. The right conferred by the constitution is protection from undue restrictions on one’s right
to
travel, not protection
from
travel.
See Saenz v. Roe,
. Grant argues that the fact that the impact of Glancy’s and O’Brien's testimony "in tandem [would be] far greater [than] if they had told different stories” (PL’s Opp. at 46) creates the basis of a conspiracy. That argument must fail as it does not establish that the alleged coercive power was as a result of the "force of numbers.” Similarly, the fact that Hancock may have cooperatеd with the prosecutor does not create an overpowering situation based on numbers. Grant’s scenarios are clearly not the "rare” type of "peculiar power of coercion” anticipated by Massachusetts courts.
. Grant does not challenge the motion for summary judgment insofar as it relates to the negligent infliction of emotional distress and false imprisonment claims.
. Under the Workers’ Compensation Act, employees may reserve a right of action pursuant to Mass. Gen. Laws ch. 152, § 24, so as to avoid the exclusivity bar. Grant has not alleged nor provided evidence that he made any such reservation of rights.
. An employer may be held vicariously liable for "emotional distress intentionally inflicted by one employee on another.”
Green v. Wyman-Gordon Co.,
. Given the language of the complaint, Hancock appropriately argued in its motion for summary judgment that the negligence claim was barred by the Workers’ Compensation Act.
. For example, the job description notes that while “significant PTS experience” is a requirement, "good PTS is OK.” In fact, the job description clearly called for a broad range of experience. (See DF App. at 160-61).
. Mass. Gen. Laws ch. 12, § 111 provides for a private cause of action for violations of § 11H.
See Batchelder v. Allied Stores Corp.,
. Grant does not contend that the risk (or fear) of physical harm which arose in connection with the altercation with Glancy and O’Brien carried over into the events surrounding the criminal prosecutions,