Opalenik v. LaBrie

945 F.Supp.2d 168

Steven OPALENIK Jr. and Diane R. Opalenik, Plaintiffs,

v.David J. LaBRIE, Mark B. Dominick, Jess G. Camp, McLair Mailhott, David S. Bertera, Adam J. Bartlett, Mark Shlosser, Barry O'Connor, Dennis Hukowicz, Town of Hadley, and Town of South Hadley, Defendants.

Civil Action No. 11–cv–30065–KPN.

United States District Court, D. Massachusetts.

March 22, 2013.

Stephen Opalenik, South Hadley, MA, pro se.

Diane Opalenik, South Hadley, MA, pro se.

Andrew J. Gambaccini, Reardon, Joyce & Akerson, P.C., Worcester, Carole Sakowski Lynch, Frederick P. Frangie, Morrison Mahoney, LLP, Springfield, Douglas I. Louison, Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Document Nos. 84 and 88)

KENNETH P. NEIMAN, United States Magistrate Judge.

Steven Opalenik and Diane Opalenik (“Plaintiffs”), proceeding pro se, assert various civil rights and tort claims against the Town of Hadley and certain Hadley police officers (“Hadley Defendants”) as well as against the Town of South Hadley and certain South Hadley police officers (“South Hadley Defendants”). The individual Hadley Defendants are David S. Bertera, Adam J. Bartlett, Mark Shlosser, Barry O'Connor and Dennis Hukowicz.¹ The individual South Hadley Defendants are David J. LaBrie, Mark B. Dominick, Jess G. Camp, and McLair Mailhott.

Plaintiffs' claims arise from searches and seizures at their property and the subsequent criminal prosecution of Steven Opalenik. Although Steven Opalenik was found guilty of charges in connection therewith, the Massachusetts Appeals Court overturned his conviction because the initial search warrant was not supported by probable cause. See Commonwealth v. Opalenik, 76 Mass.App.Ct. 1102, 2009 WL 4842245 (Mass.App.Ct. Dec. 17, 2009) (unpublished). In particular, Plaintiffs assert the following claims in their third amended complaint: civil conspiracy against Bertera, Bartlett, O'Connor, Hukowicz, LaBrie, Dominick, Camp and Mailhott (Count I); illegal search and arrest pursuant to 42 U.S.C. § 1983 against Bertera, Bartlett, O'Connor, Hukowicz, Dominick, LaBrie and Camp (Count II); failure to properly select, train, supervise, and discipline officers pursuant to 42 U.S.C. § 1983 against both the Towns of Hadley and South Hadley (Counts III and IV); Massachusetts Civil Rights Act violations against all Defendants (Count V); malicious prosecution against all Defendants (Count VI); intentional infliction of emotional distress and negligent infliction of emotional distress against all Defendants (Count VII); and defamation against all Defendants (Count VIII).

Presently, both the Hadley Defendants and South Hadley Defendants seek summary judgment on all of Plaintiffs' claims. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the jurisdiction of this court. For the reasons that follow, the court will allow Defendants' motions in part and deny them in part.

I. Standard of Review

When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is “material” when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Although evidence submitted by pro se litigants should be construed liberally, see Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir.1988), “ pro se status does not free a litigant in a civil case of the obligation to comply with procedural rules,” Ruiz Rivera v. Riley, 209 F.3d 24, 28 n. 2 (1st Cir.2000).

II. Background

The parties do not dispute the following facts, which are construed in a light most favorable to Plaintiffs. On March 10, 2008, Plaintiffs were exploring property located at 425 River Drive in Hadley, Massachusetts, which was owned by Thomas and William Tudryn, along with other Tudryn family members, but had not been occupied since 2002. (Hadley Defendants' Statement of Material Facts (“Hadley SOF”) ¶ 2–3; South Hadley Defendants' Statement of Material Facts (“So. Hadley SOF”) ¶ 14–16.) Plaintiffs thought the property, which included a house and an attached garage, was abandoned and wanted to investigate whether it would be a worthwhile investment. (So. Hadley SOF ¶ 14; Hadley SOF ¶ 3; Plaintiffs' Statement of Material Facts (“Pl. SOF”) ¶ 1.) They pulled their vehicle into the garage to determine whether it would fit, but the garage only enclosed three-quarters of the vehicle, leaving its rear visible to the street. (So. Hadley SOF ¶ 16; Hadley SOF ¶ 5.) Diane Opalenik grabbed a headlamp from the vehicle's trunk, which she left open. (So. Hadley SOF ¶ 16.) The trunk also contained carpentry tools and a sledge hammer. (Hadley SOF ¶ 6; Pl. SOF ¶ 1.) Plaintiffs then proceeded to inspect the attic area of the garage when Thomas Tudryn, after having been alerted by a family member that there was an unfamiliar vehicle at the property, arrived there. (So. Hadley SOF ¶ 15, 16.)

Upon his arrival, Thomas Tudryn honked his horn and asked a family member to call the Hadley Police Department. ( Id. ¶ 15.) William Tudryn arrived shortly thereafter. ( Id. ¶ 17.) Diane Opalenik tried to explain to the Tudryns why they were at the property, but Thomas Tudryn told her that she would have to talk with the police. ( Id.) Hadley Police Officers Mark Ruddock and Mark Shlosser then arrived and spoke with Plaintiffs. ( Id. ¶ 18.) Thereafter, Thomas Tudryn escorted Shlosser through the house, after which Shlosser reported to Ruddock that he saw wet foot-prints leading from the garage through a door leading to the interior of the house. (Pl. SOF ¶ 1.) Thomas Tudryn then showed Ruddock a wooden door on the second floor of the house that was accessible through the attic area of the garage. ( Id.) Although the Tudryns stated that the door had previously been nailed shut, the door was open and appeared to have been smashed in with a hammer or crowbar. (So. Hadley SOF ¶ 19.) Ruddock also observed a pile of antique-style property neatly stacked in the kitchen area. (Hadley SOF ¶ 19.)

After exiting the house, Ruddock looked inside Plaintiffs' vehicle and noticed the carpentry tools and sledge hammer but did not see anything belonging to the Tudryns. (So. Hadley SOF ¶ 20; Pl. SOF 1.) The Tudryns were unsure if they wanted Plaintiffs arrested because it appeared as though nothing had been taken from the house. ( Id.) Ruddock and Shlosser then advised Plaintiffs that the matter was under investigation and that they could possibly expect a criminal summons in the mail for trespassing. (So. Hadley SOF ¶ 21.) Ruddock and Shlosser also advised the Tudryns that they could complete incident reports after they had a chance to speak with other family members. ( Id.)

At 5:06 p.m. that same day, thirty minutes before Ruddock wrote his incident report, a Hadley police officer called the South Hadley police station seeking information about Plaintiffs and informing the South Hadley police that Plaintiffs “are going to town halls to find vacant homes of people who have past [sic] away and have been out of the home for a while. Then they go to the home [to] break in and pull into a garage or somewhere, where they can concile [sic] a vehicle and take antiques and collectable's [sic].” ² (Pl. SOF ¶ 8; Exhibit 11 (Attached to Pl. SOF).) The next day, March 11, 2008, at 12:06 p.m., before Thomas Tudryn filed an incident report, Hadley Police Officer Adam Bartlett ran a vehicle query on the Opaleniks' vehicle. (Pl. SOF ¶ 8.) Some writing on Bartlett's Query Report states the Opaleniks' vehicle also was followed on March 10, 2008, at 8:00 p.m. ( Id.)

In any event, during the evening of March 10 or the morning of March 11, 2008, Thomas Tudryn returned to 425 River Drive with his wife. (So. Hadley SOF ¶ 22.; Exhibit 2 (Attached to So. Hadley SOF).) They discovered that china, a phonograph, music records, copper pipe from the cellar, and other items were missing. (Hadley SOF ¶ 22.) On March 11, 2008, that day being certain, Thomas and William Tudryn submitted incident statements to the Hadley Police Department reporting the events of March 10, 2008. ( Id. ¶ 23; Exhibit F (Attached to Hadley SOF)); Exhibit G (Attached to Hadley SOF).) Thomas Tudryn's statement also reports the items that he and his wife discovered missing upon his return to the property. (Exhibit F (Attached to Hadley SOF.)

Bartlett was assigned to lead the investigation. ( Id.¶ 24.) As part of that investigation, Bartlett read reports prepared by Ruddock, spoke with Ruddock and Shlosser, met with Thomas and William Tudryn, and toured and took photographs of the property. ( Id. ¶ 25; So. Hadley SOF ¶ 25.) Bartlett then drafted an affidavit with the assistance of Hadley Police Officer Bertera and, on March 13, 2008, applied for a warrant to search Plaintiffs' house at 5 Bach Lane in South Hadley. (Hadley SOF ¶ 26; So. Hadley SOF ¶ 27.) The affidavit which was attached to the search warrant application included an addendum describing the property for which Bartlett wished to search; specifically, it described “[a] set of 7 dishes including 5 pieces in each set, PEMBROKE–GOLD TRIM BIRDS AND FLORAL RIM &...