O'Brien v. Town of Bellingham ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1704
JOSEPH O'BRIEN,
Plaintiff, Appellant,
v.
TOWN OF BELLINGHAM, Commonwealth of Massachusetts;
RICHARD PERRY, individually and in his official capacity
as a police officer; TIMOTHY JOYCE, individually and in his
official capacity as a police officer; JAMES RUSSELL,
individually and in his official capacity as a police officer;
BRIAN KUTCHER, individually and in his official capacity
as a police officer; JOHN MELANSON, individually and in his
official capacity as a police officer,
Defendants, Appellees,
ERIC ZIMMERMAN, individually and in his official capacity as a
police officer; MICHAEL GILBOY, individually and in his official
capacity as a police officer,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jennifer C. Boal, U.S. Magistrate Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Edward J. McCormick III, with whom McCormick & Maitland was
on brief, for appellant.
Evan C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,
for appellees.
November 22, 2019
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TORRUELLA, Circuit Judge. On April 9, 2012, Bellingham
police officers responded to a call regarding an unresponsive and
potentially intoxicated individual in the woods behind Shirley
Drive in Bellingham, Massachusetts. When the officers arrived,
they came upon Joseph O'Brien ("O'Brien") laying in a shallow
ravine with his pants unbuckled. There are conflicting versions
as to what occurred next, but the officers eventually placed
O'Brien in handcuffs and took him to the Bellingham Police Station
(the "Police Station"). There, O'Brien became increasingly
irrational and violent -- destroying property, attacking and
threatening the police officers, and harming himself.
Thereafter, O'Brien pleaded guilty to several state
criminal charges stemming from those incidents, including assault
and battery and resisting arrest. Subsequently, O'Brien filed
this civil rights suit in which he asserted excessive force claims
under 42 U.S.C. § 1983 and Massachusetts state law against the
police officers that apprehended him in the woods and those who
attempted to subdue him at the Police Station. After lengthy
pre-trial briefing, the district court granted the officers'
motion for summary judgment, holding that Heck v. Humphrey, 512
U.S. 477 (1994),1 barred O'Brien's excessive force claims as they
1 The Supreme Court in Heck, acknowledging its "expressed
. . . concerns for finality and consistency," 512 U.S. at 484–85,
found that "the hoary principle that civil tort actions are not
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relate to the events in the woods and some of the incidents at the
Police Station. The court held that the excessive force claims
arising from the events at the Police Station failed as a matter
of law because the undisputed facts did not establish the use of
excessive force, and in any event, that the defendants were
entitled to qualified immunity. O'Brien then filed the present
appeal. For the reasons that follow, we affirm.
I. Background
A. Factual Background2
O'Brien maintains that he has no recollection of the
events related to either his arrest in the woods or the post-arrest
incidents in the Police Station. For his claims arising from the
events in the woods, O'Brien relies on the testimony of two
eyewitnesses, Bonnie Bourque ("Bourque") and Paul Nilson
appropriate vehicles for challenging the validity of outstanding
criminal judgments applies to § 1983 damages actions that
necessarily require the plaintiff to prove the unlawfulness of his
conviction or confinement," id. at 486. As a result, it held that
where a § 1983 action for damages "would necessarily imply the
invalidity of" a plaintiff's conviction or sentence, such an action
is not cognizable under § 1983 "unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated." Id. at 487.
2 Because this case is being reviewed at the summary judgment
stage, the factual record is presented "in the light most favorable
to [O'Brien,] the nonmoving party." Dennis v. Osram Sylvania,
Inc., 549 F.3d 851, 855 (1st Cir. 2008) (quoting Benoit v. Tech.
Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)).
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("Nilson"), which we recount below. For his claims resulting from
the events at the Police Station, we have the benefit of video
security footage.
1. Events in the Woods
On April 9, 2012, Bourque -- who was inside her Shirley
Drive residence in Bellingham, Massachusetts -- heard shouting in
the woods behind her property. When she walked outside toward the
back of her property, Bourque saw O'Brien sitting in a small ravine
in the woods behind her backyard, accompanied by a younger man and
a dog. Bourque asked the younger man if O'Brien needed help and
whether she should call the police. The younger man informed
Bourque that O'Brien's name was "Joe" and left with the dog.
Though Bourque tried to talk to O'Brien, he refused to respond, he
lay down, and he did not move much. Bourque went back inside and
called the Bellingham Police Department.
Defendant-appellee Timothy Joyce, a Bellingham police
officer ("Officer Joyce"), arrived at Bourque's door shortly
thereafter. Bourque and Officer Joyce walked over to the woods
behind Bourque's house, and they found O'Brien laying down on his
back in the ravine with his pants undone. Officer Joyce walked
over to O'Brien's left side, shook him by the shoulder, and asked
him some questions, including why his pants were undone. When
O'Brien stood to buckle his pants, Officer Joyce shouted at him:
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"[G]et down on the ground. Put your hands behind your back.
You're under arrest." Officer Joyce immediately yelled,
"resisting arrest," pulled pepper spray out of his coat, and
sprayed O'Brien in the face. O'Brien's pants fell around his
ankles, making it impossible for him to run away. Two other
Bellingham police officers, including defendant-appellee Sergeant
James Russell ("Sergeant Russell"), arrived on the scene and also
started pepper spraying O'Brien. All three officers sprayed
O'Brien simultaneously. Bourque testified that O'Brien did not
threaten the officers or become aggressive before they pepper
sprayed him.
As the officers were spraying O'Brien, Bourque fled from
the woods and ran back toward her house, stopping at her back deck,
which was roughly the length of a football field away from
O'Brien's location in the woods. She did not see what was
happening in the woods while she was running, but she heard O'Brien
scream for "help." From her deck, Bourque witnessed
defendant-appellee Sergeant Richard Perry ("Sergeant Perry") cross
through the woods from Caroline Drive towards where O'Brien and
the other officers were. At that point, a hill and a shed
obfuscated Bourque's view of O'Brien and the officers. Bourque
testified that she did not see any officer strike or hit O'Brien.
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Nilson, who also witnessed portions of the incident,
lived on Caroline Drive on the other side of the woods from
Bourque. Nilson heard a commotion and ventured into his backyard
to where his property bordered the woods. From that vantage point,
he saw O'Brien in the woods surrounded by police officers screaming
"help, help, help." According to Nilson, the officers attempted
to talk O'Brien into voluntarily being handcuffed for
approximately ten to fifteen minutes, without success.
Eventually, Officer Joyce managed to get one handcuff on
O'Brien's wrist while keeping the other cuff in his hand. O'Brien
swung Officer Joyce around with one arm, while the other officers
attempted to subdue him by striking him multiple times in the back
and torso with their service batons. This had no apparent effect
on O'Brien, who continued to resist by swinging his arms and
swatting at the officers. According to Nilson, O'Brien continued
resisting until one or two officers struck him on the head with
their batons, knocking him to the ground. O'Brien finally stopped
fighting, and the officers handcuffed him.
2. Events at the Police Station
After O'Brien was taken into custody, the police
transported him to the Police Station for booking. The entire
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incident that occurred at the Police Station was captured on video
with audio.3
Officers brought O'Brien into the Police Station at
5:52 p.m. Simultaneously, Emergency Medical Technicians ("EMTs")
from the Bellingham Fire Department, who had been summoned to treat
O'Brien, arrived at the Police Station and entered the booking
area. O'Brien, who was handcuffed, was immediately placed in a
chair and questioned by a Bellingham firefighter/EMT regarding his
medical needs.
Defendant-appellee Officer John Melanson ("Officer
Melanson") uncuffed O'Brien's right hand and fastened that cuff to
a long chain attached to a bar on the wall, leaving O'Brien's right
hand unrestrained. The bar was located next to the door that
officers used to bring detainees into the Police Station.
Subsequently, O'Brien began screaming. The EMTs informed O'Brien
that he would be transported to a local hospital, but O'Brien
insisted on being taken to Massachusetts General Hospital in
3 In the "Statement of Undisputed Material Facts in Support of
their Motion for Summary Judgment," the defendants cited to the
time-stamped video recording to support their version of the events
that transpired at the Police Station. O'Brien has not disputed
the authenticity of the video evidence. Rather, in opposition to
summary judgment, O'Brien objected to the defendants' "description
and characterization of the images" without offering his own view
of the contents of the video. He merely stated that "the video
speaks for itself."
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Boston. O'Brien continued arguing with and cursing at the EMTs,
until they eventually retreated. Next, O'Brien cursed at the
officers and threatened them with violence. He told the officers
that he would "kick the shit out of" and "beat the fuck out of"
them, and he growled. He asked the officers if they would kill
him, and called them "pussies." O'Brien continued to scream,
growl, and threaten to commit graphic acts of violence against the
officers. He also told them that he had "a lot of fight left in
him."
Some minutes later, O'Brien spat on the floor, growled,
wiped mucus on the walls, and tore down a window covering. He
then grabbed the handset of a telephone and attempted to smash a
glass window with it, while taunting the officers to shoot him.
Officer Melanson, using a baton, struck O'Brien in the leg once to
stop him from breaking the window. O'Brien squared off and swung
the phone handset at the officers. Sergeant Perry also deployed
a baton. O'Brien hit the officers, and they struck him with batons
before retreating. O'Brien continued to swing at the officers,
telling them to shoot him.
Subsequently, O'Brien hit the window multiple times and
picked up a metal chair, prompting Officer Melanson to pepper spray
him. Unaffected, O'Brien struck the window with the chair, then
picked up a different chair, which the officers snatched from him.
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He then grabbed the phone handset, swung it around, and used it to
smash the glass window. O'Brien taunted, "where's your gun?" He
proceeded to destroy a window blind and strike at the broken window
with his uncuffed hand and arm. He told Sergeant Perry, "give me
your gun," and hurled a printer across the room. Once again,
O'Brien was pepper sprayed with no apparent effect.
Because the Bellingham Police Department was not
equipped with tasers, Sergeant Russell called the Franklin Police
Department to have an officer with a taser respond. He also called
the Worcester and the Norfolk County Sheriff's departments to have
a cell extraction team come to the Police Station to subdue
O'Brien, but they were unable to respond.
O'Brien proceeded to hit the broken window with his
uncuffed hand and arm once again, further shattering the panes.
Sergeant Perry struck O'Brien's leg with a baton and ordered
O'Brien to stay in the corner away from the window. Blood appeared
to drip from O'Brien's hand and arm due to cuts sustained while
smashing the window. O'Brien reached to his cuff and demanded
that the officers give him the key to uncuff himself. Officer
Joyce pepper sprayed O'Brien, who returned to the window and again
hit the glass shards with his hand. Officer Melanson struck
O'Brien in the torso with a baton and O'Brien swung his fist at
him. Once again, Officer Joyce pepper sprayed O'Brien, who
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returned to the window and tried to dislodge shards of glass.
Officer Melanson again struck O'Brien with a baton and told him to
back away. The struggle continued as the officers attempted
unsuccessfully to control O'Brien.
Almost forty minutes after arriving at the Police
Station, Franklin Police Officer defendant Eric Zimmerman
("Officer Zimmerman") arrived with a taser. The officers ordered
O'Brien to get on his knees and repeatedly told him to stop
resisting or he would be tased, and that he would receive the
medical attention he needed if he submitted. O'Brien refused.
After around twenty minutes, Officer Zimmerman deployed the taser.
O'Brien called the officer a "pussy" and asked him to "give [him]
another one." The officers informed O'Brien that he required
medical attention and that he would be tased if he did not comply.
O'Brien refused and he was tased a second time without significant
effect. O'Brien told the officers that he would keep the taser
barb as evidence and that he would swallow it. He then grabbed a
clock off the wall and appeared to swallow the taser barb.
O'Brien asked the officers if they were going to burn
down the Police Station, as "that [was their] only option."
Officer Perry asked O'Brien if he was going to allow the officers
to restrain him so that they could take him to the hospital,
remarking that O'Brien had "bled all over the floor." O'Brien
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refused and was informed that the officers were going to take the
next step if he did not comply by allowing them to place handcuffs
on both his hands, but he refused once again.
Subsequently, Defendant-appellee Bellingham Officer
Brian Kutcher ("Officer Kutcher") positioned a tactical weapon
that shot forty-millimeter rubber projectiles and asked, "are you
going to comply?" Officer Kutcher commanded O'Brien to get on the
ground approximately nine times, but O'Brien refused. Officer
Kutcher then fired a rubber projectile. O'Brien grabbed the clock
that he had previously torn off the wall from the floor and began
using it as a shield. Officer Kutcher repeatedly ordered O'Brien
to get down on the ground, to which O'Brien repeatedly responded,
"fuck you." Officer Kutcher then fired two more projectiles.
Among other statements, O'Brien shouted "you're gonna have to kill
me and you're gonna have to do murder right here." O'Brien was
commanded to get on the ground approximately fourteen more times,
to which he continually responded, "fuck you." Kutcher fired a
final rubber projectile at 7:13 p.m., with no effect. By this
time, the floor around O'Brien was covered with his blood and glass
from the shattered windows.
Sergeant Perry approached O'Brien to try to seize the
clock, but O'Brien held it up and said, "I'll smash it right in
your face." After asking O'Brien to put the clock down, Sergeant
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Perry displayed a baton, causing O'Brien to swing the clock at
him. In response, first Sergeant Perry and then Officer Kutcher
struck O'Brien with batons, and O'Brien whacked Sergeant Perry
multiple times with the clock until the officers were able to
snatch the clock away from him. The officers continued to command
O'Brien to get on the ground to be cuffed. Then, O'Brien began
swinging the phone handset once again. Officer Kutcher commanded
O'Brien to drop the phone, yet he refused and Officer Kutcher
deployed a long wooden baton and, approaching O'Brien, once again
commanded him to "drop the phone." O'Brien kicked at Officer
Kutcher, who struck at the phone. In this scuffle, O'Brien dropped
the phone handset and charged at Officer Kutcher, who struck at
O'Brien and cleared the phone out of O'Brien's reach with the
wooden baton before retreating.
O'Brien was told again to get on the ground so he could
be cuffed and transported to a hospital to be evaluated and
treated. O'Brien responded, among other things, that he was
already dead. When O'Brien was told that a K-9 dog would be
brought into the booking area if he did not get down on the ground,
he responded, "I like dogs." Franklin Police Officer defendant
Michael Gilboy ("Officer Gilboy") arrived at 7:25 p.m. holding a
restrained police dog. While the dog barked at O'Brien, O'Brien
approached the dog and reached out to pet it. He then told Officer
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Gilboy that "your fucking dog is a pussy." Officer Gilboy
eventually retreated, and the dog was never released. After
approximately twenty more minutes, a mellowed O'Brien requested
water, which he was quickly given. A few minutes later, O'Brien
finally submitted and got on the ground. O'Brien was then
handcuffed, placed on a stretcher, and taken to Milford Hospital.
The entire episode lasted nearly two hours.
At the hospital, O'Brien was treated for a ketamine
overdose and lacerations to his right hand that required suturing.
He was also diagnosed with a mildly displaced avulsion fracture to
his left wrist and nondisplaced fractures to his right wrist. As
O'Brien conceded, however, "it is impossible to say with a
reasonable degree of medical certainty whether" these fractures
resulted from force used by any police officer or were
self-inflicted by O'Brien's own actions.4
4 We have previously held that "the commonly accepted meaning
among lawyers and judges to the term 'reasonable degree of
scientific certainty'" is "a standard requiring a showing that the
injury was more likely than not caused by a particular stimulus,
based on the general consensus of recognized [scientific]
thought." Burke v. Town of Walpole, 405 F.3d 66, 91 (1st Cir.
2005) (alteration in original) (quoting Black's Law Dictionary
1294 (8th ed. 2004) (defining "reasonable medical probability" or
"reasonable medical certainty," as used in tort actions)). This
is consistent with the "preponderance of the evidence" standard
which "simply requires the trier of fact 'to believe that the
existence of a fact is more probable than its nonexistence before
[he] may find in favor of the party who has the burden to persuade
the [trier of fact] of the fact's existence.'" Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal.,
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3. Guilty Pleas as to State Criminal Charges
O'Brien pleaded guilty to the following charges arising
out of his April 2012 arrest in the woods: (1) assault and battery
by means of a dangerous weapon -- on Officer Joyce by means of
handcuffs and on Sergeant Russell by means of a tree branch -- in
violation of Mass. Gen. Laws ch. 265, § 15A(b); (2) resisting
arrest in violation of Mass. Gen. Laws ch. 268, § 32B; and
(3) assault and battery on a public employee as to Officer Joyce,
Sergeant Russell, and Sergeant Perry, in violation of Mass. Gen.
Laws ch. 265, § 13D. O'Brien also pleaded guilty to the following
charges arising out of the incident in the Police Station's booking
room: (1) assault and battery by means of a dangerous weapon (a
phone handset) as to Officer Melanson and Sergeant Perry, in
violation of Mass. Gen. Laws ch. 265, § 15A(b); (2) malicious
destruction of property valued in excess of $250 -- a window,
chairs, and ceiling tiles -- in violation of Mass. Gen. Laws
ch. 266, § 127; and (3) malicious destruction of property valued
in excess of $250 -- a breathalyzer machine "BT" printer -- also
in violation of Mass. Gen. Laws ch. 266, § 127.
As part of the plea colloquy, the Assistant District
Attorney recited the following facts regarding O'Brien's arrest:
508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358,
371–72 (1970) (Harlan, J., concurring)).
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Your Honor, regarding indictment 12-0608, on October
(sic) 9, 2012, the Bellingham police responded to a
wooded area behind [redacted] Shirley Road in the Town
of Bellingham for a reported unknown male who appeared
to be sleeping in a drainage ditch and, when he was
awoken, appeared to be intoxicated or under the
influence of something, and he was stumbling around.
Officer Timothy Joyce initially responded, Sergeant Neil
(sic) Russell shortly thereafter. They both assisted
Mr. O'Brien to his feet. His speech was slurred and he
was unsteady on his feet. Officer Joyce made the
determination to place him into protective custody, and
he conducted a pat-down search for his safety.
Mr. O'Brien began to tense up and resist. Mr. O'Brien
was taken to the ground and pushed himself up while
police were on his back. Officer Joyce removed a
switchblade pocket knife from Mr. O'Brien's right pocket
and pants, and the blade was still open at this time.
During the struggle, Sergeant Russell disengaged from
Mr. O'Brien and drew his OC spray. Officer Joyce
continued to struggle with Mr. O'Brien and his left hand
was caught in the open handcuff. As Mr. O'Brien pulled
away from Officer Joyce, the officer's middle ring and
little fingers twisted in the open handcuff.
. . . O'Brien and Officer Joyce fell to the ground with
their combined weight and landed on Officer Joyce's
wrist. When Officer Joyce separated from Mr. O'Brien,
the open handcuff got caught on the officer's glove and
ripped the area around his wrist. It was later
determined the wrist was fractured due to these actions.
Once the officers created about fifteen feet of
separation and distance from Mr. O'Brien, he grabbed a
tree branch and struck Sergeant Russell on the right
side of his face. Sergeant Russell sprayed him with OC,
which had no effect, apparently, on Mr. O'Brien, who got
into a fighter's stance and closed fists and screamed
that he had been waiting all his life training for
something like this. Officer Joyce drew his baton and
gave orders for Mr. O'Brien to get on the ground, which
he refused. Both officers used a series of leg strikes
to Mr. O'Brien, which had little or no effect on him.
The officers requested more backup.
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Sergeant Perry arrived on the scene and recognized him
from the September 2, 2011 incident in which he had
assaulted police. Mr. O'Brien continued to yell threats
at Sergeant Perry. The three police were finally able
to get Mr. O'Brien to the ground, where he continued to
resist and fight. Officer John Melanson then arrived
on the scene, and he and Sergeant Perry escorted
Mr. O'Brien back to the Bellingham police station for
booking.5
When asked by the court whether those facts "fairly and
accurately describe[d] [his] conduct," O'Brien answered "yes."
Additionally, when the judge asked O'Brien whether he understood
that by pleading guilty he was "admitting to the truth of those
matters that were just stated in court," he once again responded
"yes." O'Brien also answered in the affirmative when the judge
asked him whether he was "pleading guilty . . . because [he was]
guilty[] and for no other reason," and whether he had discussed
"these matters" with his attorney, including his rights, "any
defenses [he] may have, and the consequences of pleading guilty."
The state judge accepted O'Brien's plea for which he found that
there was a factual basis.
B. Procedural History
On April 6, 2015, O'Brien filed suit against Sergeants
Perry and Russell and Officers Joyce, Kutcher, and Melanson of the
Bellingham Police Department, as well as Officers Zimmerman and
5 The Assistant District Attorney also recounted the incidents at
the Police Station.
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Gilboy of the Franklin Police Department. O'Brien alleged that
they had used excessive force and had committed assault and battery
against him in apprehending him in the woods and in subduing him
at the Police Station. 6 On September 11, 2015, the parties
consented to the jurisdiction of a magistrate judge for all
purposes. After more than two years of litigation, the parties
filed a stipulation of dismissal with prejudice as to the Franklin
Police Department defendants Officers Zimmerman and Gilboy.
In the weeks prior to trial -- which was scheduled to
begin on April 2, 2018 -- the remaining defendants, Sergeants Perry
and Russell and Officers Joyce, Kutcher, and Melanson
(the "Defendants") filed various motions in limine. After
reviewing those motions and O'Brien's responses, the district
court determined that some issues raised were more appropriate for
the summary judgment context, and that they were "for the court,
not the jury, to decide." Accordingly, the district court
postponed the trial and set a schedule for summary judgment
briefing, directing the parties to focus on the applicability of
the judicial estoppel doctrine and whether O'Brien's excessive
force claims were viable in light of Heck.
6 O'Brien did not claim false arrest. While O'Brien also sued
the Town of Bellingham, the court granted the Town's motion to
dismiss on October 14, 2015.
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As ordered, the Defendants moved for summary judgment on
the grounds that Heck barred O'Brien's claims and they were
entitled to qualified immunity. O'Brien opposed, and additionally
filed a motion to vacate the dismissal of Officers Zimmerman and
Gilboy, claiming that the stipulation of dismissal for those
defendants was predicated on the parties' agreement that "no motion
for summary judgment would be filed." On May 30, 2018, the
district court issued an order noting that the Defendants had not
asserted as a basis for their motion that the undisputed facts
showed no excessive force. Nonetheless, it notified O'Brien that
it was considering granting summary judgment sua sponte as to the
excessive force claims related to the incidents at the Police
Station on the ground that, based on the undisputed facts -- i.e.,
the video of the incident -- no reasonable jury could find that
the Defendants had used excessive force. O'Brien filed a response
on June 15, 2018.
On June 1, 2018, the Defendants filed a motion to amend
their answer to the complaint to add the affirmative defense of
judicial estoppel, which O'Brien opposed. Subsequently, the
district court heard oral arguments on the Defendants' motion to
amend and O'Brien's motion to vacate. On June 21, 2018, the
district court denied O'Brien's motion to vacate the dismissals of
Officers Zimmerman and Gilboy.
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On June 27, 2018, the district court granted the
Defendants' motion to amend their answer to the complaint and their
motion for summary judgment. The district court found that
O'Brien's claims arising out of the episode in the woods were
barred by Heck. It explained that any claim based on the premise
that O'Brien was "lawfully permitted to resist arrest and/or use
force to defend himself from excessive force . . . would
necessarily undermine his convictions" arising from the same
events. The district court also discarded any theory of liability
based on Bourque's testimony that O'Brien "was attacked and pepper
sprayed without provocation by the officers" as "too . . . directly
inconsistent with [O'Brien's] plea in the criminal case."
Concerning the incident at the Police Station, the
district court's decision was twofold. First, the district court
found that Heck barred O'Brien's claims against Officer Melanson
and Sergeant Perry related to the events leading up to when O'Brien
struck them with the phone handset.7 Further, the district court
concluded that any claims against Officer Melanson and Sergeant
Perry "past the point where they were hit by O'Brien with the phone
h[andset]," or against the other defendants involved in that
incident, ultimately failed as a matter of law because the
7 As the district court noted, its task was complicated by the
fact that O'Brien did not identify his theories of relief.
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undisputed facts showed that the officers' actions were
objectively reasonable and, thus, that the officers had not used
excessive force.
Alternatively, the district court concluded that "the
Defendants are entitled to qualified immunity in connection with
any excessive force claims arising out of the events at the police
station." On July 24, 2018, O'Brien filed the present appeal.
II. Discussion
A. Denial of O'Brien's Motion to Vacate the Stipulation of
Dismissal
We need not linger over the merits of this issue as we
lack jurisdiction to entertain it. The Defendants assert that
O'Brien failed to comply with two jurisdictional requirements:
first, that he did not file a notice of appeal within thirty days
of the order's issuance, and second, that he did not reference the
district court's ruling on the motion to vacate in the notice that
he eventually filed. The Defendants' second point suffices to
dispose of this issue.
The Federal Rules of Appellate Procedure require that a
party "designate the judgment, order, or part thereof being
appealed" in a notice of appeal, Fed. R. App. P. 3(c)(1)(B), and
this requirement is generally characterized as jurisdictional in
nature. See Smith v. Barry, 502 U.S. 244, 248 (1992). "This
raises the question of whether the notice, as drafted, confers
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jurisdiction upon this court to review" the challenged ruling.
Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 3 (1st Cir. 2002).
The Supreme Court has stated that we must construe Rule 3(c)'s
specificity requirement liberally, see Barry, 502 U.S. at 248,
and, therefore, "[a] mistake in designating a judgment . . . in
the notice of appeal ordinarily will not result in loss of the
appeal as long as the intent to appeal a specific judgment can be
fairly inferred from the notice and [the] appellee is not misled
by the [unclear notice]," Spookyworld, Inc. v. Town of Berlin (In
re Spookyworld, Inc.), 346 F.3d 1, 6 (1st Cir. 2003) (quoting Kelly
v. United States, 789 F.2d 94, 96 n.3 (1st Cir. 1986)). In
examining the notice, we consider "the appellant's intent on the
record as a whole." Marie v. Allied Home Mortg. Corp., 402 F.3d
1, 8 (1st Cir. 2005).
O'Brien's notice of appeal makes no reference to the
district court's ruling on the motion to vacate the stipulation of
dismissal. Rather, O'Brien stated that he was appealing "from the
Court's ruling allowing the defendants' Motion for Summary
Judgment entered on June 27, 2018, and the Court's Judgment
dismissing the instant matter also entered on June 27, 2018, as
well as any and all rulings by the Court." Neither of the two
rulings specifically identified in the notice of appeal relate or
refer to the ruling on the motion to vacate. Omitting the ruling
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on that motion, "while, at the same time, designating . . .
completely separate and independent order[s] loudly proclaims
[O'Brien's] intention not to appeal," Kotler v. Am. Tobacco Co.,
981 F.2d 7, 11 (1st Cir. 1992), from the ruling on the motion to
vacate. Furthermore, O'Brien's inclusion of the phrase "as well
as any and all rulings by the Court" in his notice of appeal does
not overcome the deficiency. This language is insufficient to
give notice to either the Defendants or the court of O'Brien's
intent to appeal another, specific order. See id. Nor can that
intent be inferred from the notice or the record, leaving us
without jurisdiction to review it. Kelly, 789 F.2d at 96 n.3
(finding that the court may be flexible in entertaining an appeal
even if the specific judgment that is the subject of the potential
appeal is not designated in the notice of appeal so long as "the
intent to appeal from a specific judgment can be fairly inferred
from the notice, and [the] appellee is not misled by the mistake");
see also Barry, 502 U.S. at 248 ("Rule 3's dictates are
jurisdictional in nature . . . . Although courts should construe
Rule 3 liberally when determining whether it has been complied
with, noncompliance is fatal to an appeal."). That ends this
matter.
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B. The Defendants' Motion to Amend Their Answer
O'Brien next challenges the district court's ruling
allowing the Defendants to amend their answer to the complaint to
include the affirmative defense of judicial estoppel after the
close of discovery and the filing of their motion for summary
judgment.
The Defendants mention, without elaborating, that
O'Brien's notice of appeal "does not separately or specifically
reference the ruling on the motion to amend their answer." While
this passing reference to an argument would ordinarily be
insufficient to warrant our consideration, see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), we pause here because of
the jurisdictional ramifications.
It is true that O'Brien's notice of appeal does not
specifically reference the district court's order granting the
Defendants' motion to amend their answer. Instead, it designates
the Court's ruling on the motion for summary judgment and the
judgment dismissing the case, both entered on June 27, 2018. As
before, we consider "the appellant's intent on the record as a
whole and . . . whether the appellee has been misled by the
appellant's unclear notice." Marie, 402 F.3d at 8. Here, we note
that although O'Brien did not specifically identify the order on
the Defendants' motion to amend in his notice of appeal, the
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summary judgment ruling, which he did specifically include in his
notice of appeal, elaborated on the district court's reasons for
granting the Defendants' motion to amend, and both orders were
issued on the same day. Hence, it is unlikely that the Defendants
were misled "by the inartfully drafted notice of appeal." Young
v. Gordon, 330 F.3d 76, 80 (1st Cir. 2003). And in any event,
because the underlying controversy is easily resolved in favor of
the Defendants, we need not tackle the jurisdictional issue here.
See Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 27 (1st
Cir. 2012) ("[W]e take shelter . . . under the familiar principle
that where an appeal presents a difficult jurisdictional issue,
yet the substantive merits underlying the issue are facilely
resolved in favor of the party challenging jurisdiction, the
jurisdictional issue may be avoided." (quoting Kotler v. Am.
Tobacco Co., 926 F.2d 1217, 1221 (1st Cir. 1990))).
To begin with, O'Brien faces a high standard of review
hurdle. We review the district court's decision granting the
Defendants' motion to amend their answer for abuse of discretion.
Klunder v. Brown Univ., 778 F.3d 24, 34 (1st Cir. 2015). This
means that a district court's order granting a motion to amend an
answer to a complaint will be upheld "so long as 'the record
evinces an arguably adequate basis for the court's decision.'"
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Id. (quoting Juárez v. Select Portfolio Servicing, Inc., 708 F.3d
269, 276 (1st Cir. 2013)).
Federal Rule of Civil Procedure 15(a) provides that
after the time to amend "as a matter of course" has expired, "a
party may amend its pleading only with the opposing party's written
consent or the court's leave." Fed. R. Civ. P. 15(a)(2).
According to the rule, "[t]he court should freely give leave when
justice so requires." Id. "[W]hen a litigant seeks leave to
amend after the expiration of a deadline set in a scheduling
order," however, "Rule 16(b)'s more stringent good cause standard
supplants Rule 15(a)'s leave freely given standard." United
States ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 192 (1st
Cir. 2015); see also Fed. R. Civ. P. 16(b)(4) ("A schedule may be
modified only for good cause and with the judge's consent.").
Still, district court judges "enjoy great latitude in carrying out
case-management functions." Jones v. Winnepesaukee Realty, 990
F.2d 1, 5 (1st Cir. 1993).
As a general rule, affirmative defenses enumerated in
Federal Rule of Civil Procedure 8(c), including estoppel, are
"deemed waived unless raised in the answer." Davignon v. Clemmey,
322 F.3d 1, 15 (1st Cir. 2003); see also Fed. R. Civ. P. 8(c)(1)
("In responding to a pleading, a party must affirmatively state
any . . . affirmative defense, including . . . estoppel."). This
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Court, however, has identified exceptions to Rule 8(c)'s bar of
untimely affirmative defenses, including when: (1) "the defendant
asserts it without undue delay and the plaintiff is not unfairly
prejudiced by any delay," or (2) "the circumstances necessary to
establish entitlement to the affirmative defense did not obtain at
the time the answer was filed." Davignon, 322 F.3d at 15.
O'Brien correctly asserts that the Defendants filed
their motion to amend after the case-management order deadline for
amending the pleadings had passed, and thus that "Rule 16(b)'s
more stringent good cause standard supplant[ed] Rule 15(a)'s leave
freely given standard." D'Agostino, 802 F.3d at 192. Even under
the more stringent standard, however, O'Brien's contentions that
the district court abused its discretion are unconvincing, as the
record clearly "evinces an arguably adequate basis for the court's
decision." Klunder, 778 F.3d at 34 (quoting Juárez, 708 F.3d at
276).
First, "the circumstances necessary to establish [the
Defendants'] entitlement to [judicial estoppel] did not obtain at
the time the answer was filed." Davignon, 322 F.3d at 15. As the
Defendants pointed out, they did not receive a copy of the plea
colloquy concerning O'Brien's state court convictions until after
they had answered the complaint, and they did not know that O'Brien
was planning to introduce facts that contradicted the basis of his
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prior convictions until the deposition of certain witnesses during
discovery. Moreover, by raising the judicial estoppel defense
first in connection with their motion in limine and later in their
motion for summary judgment, the Defendants put O'Brien on notice
of the defense. And considering that the court postponed trial
and set a schedule for summary judgment briefing, "in part, to
give . . . the parties sufficient time for a thoughtful
consideration of the issues," O'Brien had a more than adequate
opportunity to address the defense. Thus, while O'Brien contends
that he "suffered [from] the delay" in the Defendants' request to
amend their answer, he did not explain, and we do not see, how he
suffered any prejudice. In the end, O'Brien has simply not shown
that the district court abused its "great latitude" over
case-management functions under Rule 16(b). Jones, 990 F.2d at
5.
C. District Court's Grant of Summary Judgment
This Court "review[s] the district court's grant of
summary judgment de novo." Scholz v. Goudreau, 901 F.3d 37, 44
(1st Cir. 2018) (citing Ocasio-Hernández v. Fortuño-Burset, 777
F.3d 1, 4 (1st Cir. 2015)). Because we "afford plenary review to
orders granting or denying summary judgment[,] . . . we 'must view
the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
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that party's favor.'" Podiatrist Ass'n, Inc. v. La Cruz Azul de
P.R., Inc., 332 F.3d 6, 13 (1st Cir. 2003) (quoting Griggs-Ryan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
1. Heck Bars O'Brien's Excessive Force Claims Arising from
the Incident in the Woods
In Heck, the Supreme Court held that when a person
convicted of a crime files a § 1983 claim seeking damages for an
"allegedly unconstitutional conviction" or for "other harm," the
district court "must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has
already been invalidated." 512 U.S. at 486–87. A plaintiff's
excessive force claim and his conviction "may be so interrelated
factually as to bar the § 1983 claim." Thore v. Howe, 466 F.3d
173, 180 (1st Cir. 2006). Therefore, to determine Heck's
applicability, a court must examine "the relationship between the
§ 1983 claim and the conviction, including asking whether the
plaintiff could prevail only by 'negat[ing] an element of the
offense of which he [was] convicted.'" Id. at 179 (alterations
in original) (quoting Heck, 512 U.S. at 486 n.6). Whether Heck
bars § 1983 claims is a jurisdictional question that can be raised
at any time during the pendency of litigation. See White v.
Gittens, 121 F.3d 803, 806 (1st Cir. 1997); see also Henderson ex
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rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (noting that
objections to subject-matter jurisdiction "may be raised at any
time").
In this case, the record reflects that O'Brien's
excessive force claims arising from the incident in the woods are
"so interrelated factually" with his state convictions arising
from those events that a judgment in O'Brien's favor would
"necessarily imply" the invalidity of those convictions. See
Thore, 466 F.3d at 179–80. Indeed, if the officers had used
excessive force against O'Brien while arresting him in the woods,
as he now claims, their unlawful behavior would have provided
O'Brien with a defense against the charges for resisting arrest
and assault and battery under state law. See Commonwealth v.
Moreira, 447 N.E.2d 1224, 1228 (Mass. 1983) ("[W]e conclude that
where the officer uses excessive or unnecessary force to subdue
the arrestee, regardless of whether the arrest is lawful or
unlawful, the arrestee may defend himself by employing such force
as reasonably appears to be necessary."); Commonwealth v. Graham,
818 N.E.2d 1069, 1078 (Mass. App. Ct. 2004) ("At least in
circumstances where the evidence supports a claim of excessive or
unnecessary force by police and the concomitant right to
self-defense, we think the judge must also instruct that the
Commonwealth must prove beyond a reasonable doubt that the police
-30-
did not engage in excessive force, as well as that the defendant
did not act in self-defense."); Commonwealth v. Francis, 511 N.E.2d
38, 40 (Mass. App. Ct. 1987) ("Even in circumstances where the
defendant would be justified in using force in lawful defense of
his person against a third person, he may not do so against a
police or correction officer unless the officer uses excessive or
unnecessary force.").
Similarly, the district court correctly found that Heck
bars any claim that Officer Melanson and Sergeant Perry used
excessive force leading up to when O'Brien struck them with the
phone handset. Granting a judgment against Officer Melanson and
Sergeant Perry would have implied that O'Brien's conduct was
justified, while the officers' actions were unjustified, which
would have necessarily undermined the validity of O'Brien's
assault and battery convictions. As we explained in Thore,
although "[a] § 1983 excessive force claim brought against a police
officer that arises out of the officer's use of force during an
arrest does not necessarily call into question the validity of an
underlying state conviction . . . [,] it is not necessarily free
from Heck" either. 466 F.3d at 180. And because O'Brien has not
specified any theory of relief, let alone attempted to identify a
factual scenario which would survive Heck, we need not go any
further, as any argument to that effect is waived. See Zannino,
-31-
895 F.2d at 17 ("It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work, create the ossature for the argument, and put flesh
on its bones.").
The arguments that O'Brien does raise on appeal are
confusing, conclusory, and easily discarded. First, O'Brien's
assertion that the Defendants waived a defense based on Heck is
unavailing as we have already noted that it is a jurisdictional
issue that can be raised sua sponte by the court. See White, 121
F.3d at 806.
Next, O'Brien claims that because the Assistant District
Attorney stated in the plea colloquy that the incident in the woods
occurred on "October 9" rather than "April 9," the Defendants "have
not furnished sufficient evidence to warrant a finding of summary
judgment in their favor based on the holding in" Heck. Moreover,
O'Brien avers that because his indictment does not delineate the
exact locations of the crimes, it is "difficult, if not
impossible," to determine whether they occurred in the woods or at
the Police Station. Accordingly, O'Brien asserts, the Defendants
"have not satisfied their burden to establish that the claims for
excessive force are so factually interrelated so as to bar [his]
§[]1983 claims."
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These points are meritless. The facts set out by the
Assistant District Attorney in the plea colloquy clearly and
unambiguously delineate which offenses relate to which incident.
Moreover, the record as a whole supports the conclusion that, in
his plea colloquy, the Assistant District Attorney was referring
to O'Brien's arrest by the Bellingham Police Department in the
woods on April 9, 2012, even if he misspoke by saying "October"
instead of "April." Crucially, O'Brien did not contest the date
of the incident in response to the Defendants' statement of facts,
and he did not present evidence supporting the conclusion that the
Assistant District Attorney could have been referring to any other
incident. Accordingly, the district court correctly granted
summary judgment as to O'Brien's claims arising from the incident
in the woods.
2. The Excessive Force Claims Arising from the Incident at
the Police Station
"Excessive force claims are founded on the Fourth
Amendment right to be free from unreasonable seizures of the
person." Raiche v. Pietroski, 623 F.3d 30, 36 (1st Cir. 2010)
(citing U.S. Const. amend. IV). It follows then that excessive
force claims against law enforcement officers effecting a seizure
are "governed by the Fourth Amendment's 'reasonableness'
standard." McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014)
(quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014)).
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"Determining whether the force used to effect a particular seizure
is 'reasonable' under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing
governmental interests at stake." Graham v. Connor, 490 U.S. 386,
396 (1989) (some internal quotation marks omitted) (quoting
Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The critical question
is "whether the defendant officer employed force that was
unreasonable under the circumstances." Raiche, 623 F.3d at 36
(internal quotation marks omitted) (quoting Jennings v. Jones, 499
F.3d 2, 11 (1st Cir. 2007)).
"Th[e] reasonableness inquiry is an objective one; it is
not a question of subjective intent." McGrath, 757 F.3d at 25
(citing Graham, 490 U.S. at 397). An assessment of reasonableness
"must be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight."
Graham, 490 U.S. at 396. This evaluation must allow "for the fact
that police officers are often forced to make split-second
judgments -- in circumstances that are tense, uncertain, and
rapidly evolving -- about the amount of force that is necessary in
a particular situation." Id. at 397. Application of the
reasonableness test "requires careful attention to the facts and
circumstances of each particular case, including the severity of
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the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight." Id.
at 396 (citing Garner, 471 U.S. at 8–9).
In this light, we conclude that the district court did
not err in finding that the undisputed evidence established that
the Defendants did not use excessive force against O'Brien at the
Police Station. As the district court noted, "[t]he video of the
incident show[ed] that no force [was] used against O'Brien until
after he start[ed] acting irrationally, cursing and threatening
the officers, and trying to smash a glass window." Moreover, it
is clear that the Defendants did not "employ[] force that was
unreasonable under the circumstances," given O'Brien's
unpredictable and violent actions at the Police Station. See
Raiche, 623 F.3d at 36 (quoting Jennings, 499 F.3d at 11). Thus,
even viewed in the light most favorable to O'Brien, we find that
the Defendants' actions at the Police Station were objectively
reasonable, especially under the incident's "tense, uncertain, and
rapidly evolving" circumstances. See Graham, 490 U.S. at 397.
O'Brien counters, first, that the district court should
not have relied solely on the Police Station video because
deposition testimony established that summary judgment on the
issue of excessive force was "simply not warranted." On appeal,
-35-
O'Brien does not identify the deposition testimony to which he
refers. Moreover, in opposition to summary judgment below,
O'Brien objected to the Defendants' "description and
characterization of the images" without disputing the Defendants'
proposed facts with either any evidence or even by offering his
own view of the contents of the video. He merely stated that "the
video speaks for itself." The district court found that the
Defendants' "characterizations [of the video] generally appear
accurate," and so do we. In any event, we reject O'Brien's
argument, because when the record contains video evidence, the
authenticity of which is not challenged, the court should
ordinarily view the facts "in the light depicted by the video
evidence." Underwood v. Barrett, 924 F.3d 19, 20 (1st Cir. 2019)
(per curiam).
O'Brien also reiterates his argument that because he
"was handcuffed to a handrail, and thus could not escape, attack
or physically resist at all," all the Defendants needed to do was
"simply . . . leave him alone"; "[i]nstead, they chose to beat him
with batons, shoot him with rubber bullets, and hit him with
multiple taser barbs." We similarly reject this argument. As the
district court stated, "the length of the chain attached to the
bar was long enough that every time the officers retreated, O'Brien
responded by attempting to use items in the booking room as weapons
-36-
or by destroying property." Moreover, O'Brien's argument ignores
that he "attempted to escape from the handcuffs on several
occasions," that he "was causing a major security issue," and that
he "was bleeding profusely from injuries he appear[ed] to have
sustained from breaking a glass window and the officers needed to
subdue him in order to transport him for medical attention."
Finally, O'Brien avers that he voluntarily complied
after the officers gave him a glass of water and talked to him.
Yet the video reflects that the officers spoke to O'Brien
rationally many times before and that they made numerous prior
verbal attempts to calm him down throughout the two-hour ordeal,
with no success. The officers even appeared to minimize the amount
of force they used. For example, they fired the rubber bullets
only sparingly and withheld the K-9 dog. Thus, we conclude that
even when viewed in the light most favorable to O'Brien, based on
the undisputed facts, no reasonable jury could find that the
officers' actions were unreasonable under the circumstances.
Accordingly, the district court did not err in entering summary
judgment against O'Brien on his excessive force claims arising
from the incident at the Police Station.8
8 Because O'Brien's excessive force claims fail as a matter of
law, we need not decide whether the Defendants were entitled to
qualified immunity.
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3. State Law Claims
Because O'Brien makes no argument regarding the
dismissal of his state law claims, any such argument is waived.
Zannino, 895 F.2d at 17.
III. Conclusion
For the foregoing reasons, we affirm.
Affirmed.
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