Boyle v. Barnstable Police Dep't, CIVIL ACTION NO. 09-11435-MBB

JOHN E. BOYLE, Plaintiff,

v. BARNSTABLE POLICE DEPARTMENT, TOWN OF BARNSTABLE, JOHN KLIMM,Town Manager, CHIEF JOHN FINNEGAN (retired),SGT. ARTHUR CAIDO and SGT. RICHARD MORSE, Defendants.

CIVIL ACTION NO. 09-11435-MBB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

June 11, 2012

MEMORANDUM AND ORDER RE:

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(DOCKET ENTRY # 38)

BOWLER, U.S.M.J.

Pending before this court is a second motion for summary judgment (Docket Entry # 38) filed by defendants Barnstable Police Department, Town of Barnstable, John Klimm ("Klimm"), Chief John Finnegan (retired) ("Chief Finnegan"), Sergeant Arthur Caido ("Caido") and Sergeant Richard Morse ("Morse") (collectively "defendants") pursuant to Rule 56, Fed. R. Civ. P. ("Rule 56").

PROCEDURAL BACKGROUND

On August 28, 2009, plaintiff John E. Boyle ("Boyle" or "plaintiff") filed a verified complaint (Docket Entry # 1) against defendants in which he raised various federal claims under 42 U.S.C. § 1983 ("section 1983"). Boyle also raised stateclaims against defendants for malicious prosecution (Count Four); abuse of process (Count Five); conspiracy (Count Six); intentional infliction of emotional distress (Count Seven); and libel, slander and defamation (Count Eight). (Docket Entry # 1).

On January 31, 2011, defendants filed for summary judgment on both the federal and state law claims. (Docket Entry # 25). On September 22, 2011, this court granted defendants' motion for summary judgment in part. (Docket Entry # 34). This court dismissed two defendants named in the original complaint, Chief McDonald and Chief Murphy, as well as the section 1983 claims against the Barnstable Police Department and the Town of Barnstable. (Docket Entry # 34). All counts were dismissed except for: (1) the portion of Count One based on the First Amendment retaliatory prosecution claim relative to the two operating without a license charges; (2) the portion of Count One setting out a First Amendment retaliation claim based on defendants' subjecting Boyle to false and libelous media coverage with the two Cape Cod Times articles; (3) the section 1983 supervisory liability claim against Klimm in Count Three; (4) Count Six against all defendants; and (5) the portion of Count Eight alleging that Caido made a statement on September 13, 2006, that was defamatory. (Docket Entry # 34). Defendants seek summary judgment on all the remaining claims. (Docket Entry # 38).

STANDARD OF REVIEW

Summary judgment is appropriate when the record shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed. R. Civ. P. It is designed "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Davila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007) (citation and internal quotation marks omitted). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the nonmoving party." American Steel Erectors, Inc. v. Local Union No. 7, International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir. 2008). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Id.

"The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (citation, internal brackets and quotation marks omitted). "After such a showing, the burden shifts to the nonmoving party,with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor." Hinchey v. Nynex Corporation, 144 F.3d 134, 140 (1st Cir. 1998) (citation and internal quotation marks omitted).

The nonmoving party, who bears the ultimate burden of proof, may not rest on allegations in his briefs, see Borshow Hospital & Medical v. Cesar Castillo, 96 F.3d 10, 14 (1st Cir. 1996), "but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Where, as here, a complaint is verified, it is appropriate to consider factual averments based on personal knowledge therein as the equivalent of an affidavit for purposes of summary judgment. See Sheinkopf v. Stone, 927 F.2d 1259, 1262-63 (1st Cir. 1991).

Defendants submit a LR. 56.1 statement of undisputed facts. (Docket Entry # 30). Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record.¹ See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton School Department, 322 F.3d 97, 102 (1st Cir. 2003); see also Kenda Corporation, Inc. v. Pot O'Gold Money Leagues, Inc., 329 F.3d 216, 225 n.7 (1st Cir.2003) (citing principle that "'[p]ro se status does not insulate a party from complying with procedural and substantive law'"). The court examines the facts in a light most favorable to the non-moving party and resolves any reasonable inferences in that party's favor. See Dasey v. Anderson, 304 F.3d 148, 153 (1st Cir. 2002).

Construing the facts in Boyle's favor for the purpose of adjudicating the summary judgment motion, they show the following.

FACTUAL BACKGROUND

Boyle is a longtime resident of Hyannis, Massachusetts. (Docket Entry # 1, ¶ 1). At all times relevant to this action, Boyle was the owner and chief executive officer of King's Coach, Inc. ("King's Coach"), a sedan, van and limousine service provider licensed in the Town of Barnstable, Massachusetts. (Docket Entry # 30, ¶ 1). This action arose from events between Boyle and defendants in connection with the licensing and operation of King's Coach in 2006.

The Town of Barnstable Rules and Regulations for the Regulation of Taxi Cabs and the Operation Thereof ("Rules and Regulations") dictate that an individual must obtain a permit from the Barnstable Town Manager in order to operate a livery business in the Town of Barnstable. (Docket Entry # 30, ¶ 2;Docket Entry # 33, Ex. 2). In order to acquire a permit, which the Rules and Regulations also refer to as "a vehicle for hire license," a business must have its vehicles inspected and pay a fee. (Docket Entry # 30, ¶ 2; Docket Entry # 33, Ex. 2). Section 21 of Massachusetts General Laws chapter 40 allows towns such as Barnstable to prescribe such ordinances and bylaws and affix monetary penalties not exceeding a certain amount for any breach. Mass. Gen. L. ch. 40, § 21.

Boyle founded King's Coach in April of 2000. (Docket Entry # 1, ¶ 2). At its peak, the company owned 20 vehicles and employed 35 drivers and eight office staff. (Docket Entry # 1, ¶ 2). On August 18, 2005, Boyle purchased Five Star Enterprises, Inc. ("Five Star"), a "rubbish and demolition and construction collection service" operating in Falmouth, Massachusetts ("Falmouth"), from a court appointed receiver. (Docket Entry # 1, ¶ 4). The company was sold at least in part due to a resurgence of media interest in Melvin Rein ("Rein"), the company's previous owner, following the unsolved murder of his wife. (Docket Entry # 1, ¶ 6). Boyle began assisting the police with the investigation and thus had access to non-public information. (Docket Entry # 1, ¶ 9). When media outlets asked Boyle for his input, Boyle provided "scenarios that ran counter to prevailing thought in law enforcement and published accounts in the local paper." (Docket Entry # 1, ¶ 11). Boyle beganoperating Five Star on June 9, 2005, in an attempt to preserve the company's value. (Docket Entry # 1, ¶ 3).

On November 16, 2005, Thomas Geiler ("Geiler"), the Town of Barnstable licensing agent, notified Boyle that he must have the livery vehicles inspected at the Barnstable police station on December 13 or 14, 2005, in order to obtain 2006 permits for King's Coach. (Docket Entry # 30, ¶ 4; Docket Entry # 26, Ex. 11). According to Geiler, Boyle did not renew his permits on either date. (Docket Entry # 39-6). On December 20, 2005, the Town of Barnstable Office of Regulatory Services ("Office of Regulatory Services") contacted Boyle to advise him that the permits were in jeopardy of not being renewed. (Docket Entry # 11, ¶ 10). Boyle instead applied for a limousine license in the Town of Falmouth with the hope of consolidating his business operations there. (Docket Entry # 11, ¶ 12). In December 2005, Falmouth Town Manager Whitenour ("Whitenour") notified Boyle that "King's Coach could not obtain a license in Falmouth due to prejudice of then Falmouth Police Chief David Cusolito." (Docket Entry # 1, ¶ 12). Under Whitenour's direction, Boyle withdrew the license application. (Docket Entry # 1, ¶ 12). Due to ongoing bad publicity and "financial considerations," Boyleplaced King's Coach and Five Star up for sale.² (Docket Entry # 1, ¶ 13). He sold Five Star on or about May 1, 2006.

Boyle also "contacted the Licensing Division of Barnstable who agreed to allow Boyle an extension on renewing his limousine license because of a potential sale."³ (Docket Entry # 1, ¶ 14). Boyle met with Thomas Geiler ("Geiler"), the Town of Barnstable licensing agent, at least three times regarding the extension. (Docket Entry # 1, ¶ 15). Geiler assured Boyle that "things were OK" and advised him to renew his licenses "at some point." (Docket Entry # 1, ¶ 15). Relying on Geiler's assurances, Boyle continued operating King's Coach. (Docket Entry # 1, ¶ 15; Docket Entry # 32, p. 9).

In a letter dated June 5, 2006, the Office of Regulatory Services warned Boyle that if he did...