Bissereth v. United States

1

FRANZ BISSERETH and WILLIE MAE RYNER, Plaintiffs, v. UNITED STATES OF AMERICA, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE 8, JOHN DOE 9, and the UNITED STATES OF AMERICA IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY, Defendants.

Civil Action No. 21-cv-11068-ADB

United States District Court, D. Massachusetts

July 6, 2023

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

Plaintiffs Franz Bissereth (“Bissereth”)^[1] and Willie May Ryner (“Ryner”) (collectively “Plaintiffs”) bring constitutional and state-law tort claims against the United States, the Immigration and Customs Enforcement Agency (“ICE”), and nine John Doe ICE agents (“ICE Agents”) (collectively “Defendants”), related to a June 2019 incident during which ICE Agents forcibly entered and searched Plaintiffs' home, based on a search warrant that authorized a search of Plaintiffs' apartment based on the mistaken belief that the residence was relevant to a criminal investigation. See [ECF No. 38 (“Amended Complaint” or “Am. Compl.”)]. Presently before the Court are two pre-discovery motions for summary judgment filed by the ICE Agents, [ECF No. 49], and the United States and ICE, [ECF No. 51]. For the reasons that follow, Defendants' motions, [ECF Nos. 49, 51], are GRANTED in part and DENIED in part.^[2]

I. BACKGROUND

A. Procedural Background

Plaintiffs filed their original complaint on June 28, 2021, [ECF No. 1 (“Compl.”)], asserting constitutional claims against six unnamed individual ICE Agents, for excessive force, unlawful detention, and unlawful search, as well as tort claims against the United States, for assault and battery, negligence, and the intentional infliction of emotional distress, [id. ¶¶ 3688].

On November 18, 2021, the Government moved to dismiss the three counts brought against it under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2672, because Plaintiffs filed their complaint approximately two weeks beyond the FTCA's statute of limitations period. [ECF No. 15; ECF No. 16 at 4-6]. Concluding, as Plaintiffs argued, [ECF No. 18], that equitable tolling was warranted, the Court denied the Government's motion to dismiss on April 29, 2022, [ECF No. 21]. On July 12, 2022, the Government filed a motion for reconsideration, [ECF No. 22], which the Court also denied, on October 12, 2022, [ECF No. 35].

On August 4, 2022, prior to the Court's ruling on the motion for reconsideration and in anticipation of Plaintiffs filing an amended complaint, the Government moved for a protective order, allowing for the use of pseudonyms for the ICE Agents in public filings. [ECF No. 29].

The Court granted the motion in part, ordering the parties to refer to the ICE Agents by pseudonyms in public filings for the time being, but indicating that it would likely re-evaluate and vacate or modify the Order in the future. [ECF No. 30]. On September 14, 2022, the Government also sought a 60-day extension of the time within which to answer the anticipated amended complaint, to determine whether the individual ICE Agents would qualify for representation by the Department of Justice. [ECF No. 31]. The Court granted the extension. [ECF No. 32].

Plaintiffs ultimately filed an amended complaint on October 25, 2022, which raised the same constitutional claims against nine John Doe ICE Agents and the same tort claims against the United States and ICE. See [Am. Compl. ¶¶ 36-88].

On December 23, 2022, before engaging in any discovery, Defendants filed motions for summary judgment. [ECF Nos. 49, 51]. Plaintiffs opposed the motions on February 21, 2023. [ECF Nos. 55, 56]. Several weeks later, on March 8, 2023, Plaintiffs filed an affidavit from Plaintiff Ryner and an affidavit from Plaintiffs' counsel, both ostensibly in support of their oppositions. [ECF Nos. 61, 62]. Defendants filed replies on March 24, 2023. [ECF Nos. 67, 68]. In their replies, Defendants requested that the Court set a deadline for Bissereth's personal representative to move to substitute themselves or to schedule a hearing on the issue. [ECF No. 67 at 6; ECF No. 68 at 10-11]. Plaintiffs filed sur-replies on April 10, 2023. [ECF Nos. 74, 77]. In their sur-replies to the ICE Agents' motion, Plaintiffs sought leave to a file a statement of disputed facts. [ECF No. 74 at 5].^[3]

B. Local Rule 56.1

As a preliminary issue, Defendants argue that the facts in their shared statement of undisputed material facts, [ECF No. 48 (“SUMF”)], should be deemed admitted in their entirety because Plaintiffs did not file a concise statement of disputed material facts, as required by Local Rule 56.1, [ECF No. 67 at 2-3; ECF No. 68 at 2]. Defendants are correct that Plaintiffs did not file such a statement. Instead, Plaintiffs asserted in their briefing that many, if not all, of the Government's allegedly “undisputed” facts were, in fact, disputed. See, e.g., [ECF No. 56 at 2 (“Both motions were supported by what all Defendants refer to [as] ‘Undisputed Facts.' No responsible party would view these facts as undisputed.”); id. (“The motion should be denied, because . . . [it is based on] pre-discovery facts that no reasonable officer of the court would view as undisputed.”); ECF No. 55 at 2 (“For [Defendants] to claim that there are ‘settled' or ‘undisputed' facts supporting disposition under Fed.R.Civ.P. R. 56 solely on the basis of their self-serving affidavits denying the Plaintiffs' allegations could not be more disingenuous. The Defendants in their motion offer pre-discovery (and pre-answer) ‘undisputed facts' in connection with its motion, which is hard to reconcile in this pre-answer state of affairs.”)]. Additionally, several weeks after filing their oppositions, Plaintiffs filed an Affidavit of Plaintiff Ryner, presenting facts related to her recollection of the June 2019 incident. [ECF No. 61 (“Ryner Aff.”); ECF No. 56 at 3].

Local Rule 56.1 provides that “[a] party opposing [a] motion [for summary judgment] shall include a concise statement of the material facts of record as to which it is contended that request for sanctions. [ECF No. 67 at 4-5]. Plaintiffs' sur-replies appear to indicate that Plaintiffs did not intend to make or have dropped any cross-motion for sanctions. [ECF No. 74 at 4 (noting that the Court has inherent authority to sanction a party sua sponte, but that “Plaintiffs have made no cross motion for sanctions”); ECF No. 77 at 4 (same)]. The Court will not impose sanctions on Defendants at this time. there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation.” It also states that “[m]aterial facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties.” L.R. 56.1.

Nevertheless, “‘[d]istrict courts enjoy broad latitude' in adopting and administering such local rules.” NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 6 (1st Cir. 2002) (quoting Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994); see also Ramsdell v. Bowles, 64 F.3d 5, 7 (1st Cir.1995) (noting district court's “great leeway in the application and enforcement of its local rules”). As such, “[w]here a party opposing a motion for summary judgment fails to comply with Local Rule 56.1, the court has the discretion to decide whether to impose the sanction of deeming the moving party's factual assertions to be admitted.” Butters v. Wells Fargo Advisors, LLC, No. 10-cv-10072, 2012 WL 5959986, at *2 (D. Mass. Nov. 27, 2012) (citing Swallow v. Fetzer Vineyards, 46 Fed.Appx. 636, 638-39 (1st Cir. 2002)) (further citation omitted); Plourde v. Sorin Grp. USA, Inc., 517 F.Supp.3d 76, 81 (D. Mass. 2021) (quoting Butters, 2012 WL 5959986, at *2) (same).

“As an anti-ferret rule, LR. 56.1 functions to focus a court's attention on the facts that are genuinely disputed.” Mackey v. Town of Tewksbury, No. 15-cv-12173, 2020 WL 68243, at *4 (D. Mass. Jan. 7, 2020). “Rules like Local Rule 56 are meant to ease the district court's operose task and to prevent parties from unfairly shifting the burdens of litigation to the court.” Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (discussing similar Puerto Rico rule). The late-filed Ryner Affidavit is similar to what the First Circuit has described as “an alternate statement of facts in narrative form.” Id. at 7. Although the First Circuit has held that such a statement “thwart[s]” the Rule's “salutary purpose,” id., where, as here, there has been no discovery and the record is much more limited, the Court finds that the Rule's policy considerations carry much less weight, see Sarkisian v. Austin Preparatory Sch., No. 20-cv-12037, 2022 WL 17683765, at *13 (D. Mass. Dec. 6, 2022) (quoting Caban Hernandez, 486 F.3d at 7-8). Further, the SUMF presents facts related to the June 2019 incident as undisputed, largely based only on the ICE Agents' descriptions of the event, even though the SUMF contradicts many of the facts asserted in Plaintiffs' Amended Complaint. Compare SUMF ¶ 38 (“John Doe 5 struggled to Mr. Bissereth in handcuffs because he continued to resist.”), with Am. Compl. ¶ 23 (“Both Mr. Bissereth and Ms. Ryner complied with the orders that Defendants were shouting at them.”). Where there has been no discovery on these issues, the Court declines to treat these facts as undisputed. The Court therefore will not deem the facts in Defendants' SUMF as admitted.

C. Factual Background

Having determined that many of the facts pertaining to the June 2019 incident are disputed, the Court now provides a factual summary gleaned from Defendants' SUMF and attached...