Schand v. City of Springfield

380 F.Supp.3d 106

Mark SCHAND, Mia Schand, Mark Schand Jr., Quinton Schand, and Kiele Schand, Plaintiffs,

v.CITY OF SPRINGFIELD, Elmer McMahon, Leonard Scammons, Raymond P. Muise, Michael Reid, and Joseph Assad, Defendants.

C.A. No. 15-cv-30148-MAP

United States District Court, D. Massachusetts.

Filed May 6, 2019

Jacqueline L. Chung, Pro Hac Vice, Heather K. McDevitt, Joshua Weedman, White & Case LLP, James S. Trainor, Fenwick & West LLP, New York, NY, Kevin C. Adam, White & Case, LLP, Boston, MA, for Plaintiffs.

Austin M. Joyce, Reardon, Joyce & Akerson, P.C., Worcester, MA, Lisa C. deSousa, Edward M. Pikula, John T. Liebel, Law Department, City of Springfield, Kathleen E. Sheehan, Keyes & Donnellan, Kevin B. Coyle, Springfield, MA, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

(Dkt. Nos. 86, 92, and 119)

MICHAEL A. PONSOR, U.S. District Judge

I. INTRODUCTION

Plaintiff Mark Schand ("Plaintiff" or "Schand") and his family members seek damages from the City of Springfield and five city police officers, based on Schand's imprisonment for nearly twenty-seven years for a 1986 murder he alleges he did not commit.¹ Defendants do not concede Plaintiff's innocence and, even assuming it, deny that they were guilty of any negligence or misconduct in connection with Plaintiff's conviction and imprisonment. Two motions for summary judgment are now before the court, one filed individually by Defendant police officer Elmer McMahon, Dkt. 86, and a second filed on behalf of all remaining Defendants, Dkt. 92. Defendants also move to strike the affidavit of Michael Hosten, a witness to the murder who is now dead. Dkt. 119. For the reasons set forth below, the court will allow the summary judgment motions, in part, and will deny the motion to strike, without prejudice to its reconsideration by the trial judge to whom this case will now be transferred.

II. FACTUAL BACKGROUND

The facts, for purposes of the motions for summary judgment, must of course be viewed in the light most favorable to Plaintiffs as required by Fed. R. Civ. P. 56. The complexity of the record has made the task of applying this standard difficult. The parties' submissions include: statements made to detectives immediately following the murder (including sometimes multiple, conflicting statements by the same witness, in some cases later recanted); testimony presented at the July 1987 motion to suppress hearing prior to the original trial; testimony presented at the November 1987 trial itself; evidence presented in connection with an unsuccessful motion for new trial filed in 1991 (heard and denied by the state court trial judge in 1992, and unsuccessfully appealed to the Massachusetts Supreme Judicial Court in 1995); evidence presented in support of the successful motion for new trial in 2013; and deposition testimony and affidavits generated during discovery in connection with this civil litigation. Although counsel have worked hard to present the record with reasonable coherence, the court's task has been complicated by assertions of undisputed fact made by both sides with sometimes elusive support in the record.

An additional handicap has been the submission by Defendants of successive statements of undisputed fact. Defendants' first rendition appeared as Dkt. 93; it was followed by Plaintiffs' counterstatement, Dkt. 106, which was keyed to the paragraphs of Defendants' first statement. Two months later, Defendants submitted a letter, Dkt. 115, indicating they would be submitting an updated statement, to correct certain typographical errors contained in their original version. At the same time, Defendants submitted a (so to speak) counter-counterstatement of facts, Dkt. 116, which was a photocopy of Plaintiffs' counterstatement, with bolded commentary offering Defendants' disagreements. On this same day, Defendants submitted another statement of undisputed facts, Dkt. 118, which appears, except for some alterations in exhibits, to be virtually identical to their original statement of undisputed facts, Dkt. 93.

To keep the discussion coherent, the court will refer below to Dkt. 93 as "Defs' SOF," except where some other version is expressly cited. This is the document that Plaintiffs' counterstatement ("Pls' SOF"), Dkt. 106, refers to, and this approach offers the cleanest avenue to a comprehensible overview of the parties' positions.²

Apart from the challenge of sorting out the factual record, the court's task has been complicated by the extremely aggressive pleading by Plaintiffs' counsel. As will be seen the complaint embraces a number of causes of action (among others, the claims against the City of Hartford, which have been dismissed) with marginal or non-existent legal or factual support.

A. The Murder of Victoria Seymour

On the night of September 2, 1986, at approximately 11:20 pm, Charles "Heavy" Stokes, his brother David Stokes, Anthony Cooke, and Michael Hosten were loitering outside a bar in Springfield, Massachusetts, called the After Five Lounge. Strangers, who police later concluded were probably from Hartford, approached the four men to discuss purchasing illegal drugs. A scuffle broke out; shots were fired, and a bullet struck Cooke in the shoulder. Charles and David Stokes, Hosten, and Cooke began to flee, and their assailant pursued, continuing to fire at them. When Charles Stokes stumbled, the gunman stood over him pointing a gun in his face while Stokes begged for his life. He then robbed Stokes of a bag containing drugs and some amount of money. The gunman and his friends then fled in one or two vehicles. Victoria Seymour, who had no connection with the botched drug deal, was standing near the front of the After Five Lounge. A single bullet fired by the same gunman who wounded Cooke and robbed Charles Stokes struck Ms. Seymour in the back, and she died later at a local hospital. Two friends of Ms. Seymour's, Willie Darko and Michael Bernard, observed the incident from somewhere nearby, either from an upstairs balcony or on the street, depending on which version of their testimony is accepted.

B. The Investigation

Shortly following the shooting, Defendant Detective Leonard Scammons ("Scammons"} of the Springfield Police Department ("SPD") began interviewing the Springfield men involved in the incident, as well as the victim's friend Michael Bernard. Descriptions of the shooter varied. Charles Stokes identified him as a black male wearing blue jeans and a white shirt. Cooke described him as a black male with a dark complexion, five feet nine inches tall, with a slender to medium build. On the day following the shooting, September 3, 1986, two other Springfield officers who are not defendants interviewed Cooke a second time at the hospital. In this interview, Cooke described the shooter as five feet eleven inches tall, twenty-one to twenty-three years old, or perhaps "an old looking 19-year-old" wearing a white warm-up jacket, blue jeans and white leather sneakers, and having an Afro which was "sort of full on top." Defs' SOF, Dkt. 93, Ex. 2 (Declaration of Detective Robert Cheetham at 4, report of interview with Anthony Cooke).

That same day, September 3, Defendant Scammons and a non-defendant Springfield police detective interviewed Michael Hosten, who described the assailant as a clean-shaven black male with medium skin who appeared to be around 30 years old, wearing a brown or beige jacket.

The first interview of Victoria Seymour's friend Michael Bernard also occurred the day after the shooting, September 3. Defendants' Statement of Facts, Dkt. 93, regarding this interview is perplexing. It offers a supposed description by Bernard of the shooter, citing in support of this description the Complaint, Dkt. 1 at ¶42, as well as Dkt. 93, Ex. 4A, which Defendants' Statement of Facts identifies as a "9/3/86 Signed Bernard Statement." Defs' SOF at ¶5, Dkt. 93.

Contrary to Defendants' assertion, ¶42 of the Complaint simply says that Bernard "did not provide a physical description of the assailant." Dkt. 1 at ¶42. Moreover, the document attached as Exhibit 4A to Defendants' first Statement of Facts, Dkt. 93, is not (as Plaintiffs' Statement of Facts at ¶5, Dkt. 106, points out) Bernard's 9/3/86 statement. Rather, it is an undated statement obviously taken from Bernard at some later point in time. Indeed, in Exhibit 4A to Dkt. 93, Bernard explicitly says that the statement is "in addition to a statement that [he] gave on September 3, 1986." Bernard's 9/3/86 statement actually appears in the record as Exhibit 3 to Dkt. 105, offered in support of Plaintiffs' opposition to Defendants' motion for summary judgment. To complicate matters further, Defendants have substituted a new Exhibit 4A, Bernard's actual statement of September 3, 1986, for the later undated statement originally appearing as Exhibit 4A as part of Dkt. 93, in their subsequent corrected Statement of Facts, Dkt. 116. In Dkt. 116, the original Exhibit 4A appended to Dkt. 93 has vanished.

At any rate, it appears undisputed that in his statement of September 3, 1986, Bernard described seeing the shooter discharge a handgun at Charles Stokes three or four times, and, when Stokes fell, lean over and take a plastic bag from him, then run away. Bernard described the assailant as five feet seven inches tall, 160 pounds, twenty-five years old with dark skin. Bernard said in this statement that he had never seen the shooter before. Dkt. 105, Ex. 3 at 2. In the later undated statement, originally offered as Exhibit 4A of Defendants' Statement of Facts, Dkt. 93, Bernard stated, inconsistently, that prior to the shooting he had seen the shooter a couple times in Hartford.

It is perhaps helpful here to take a step away from the chronology to note the contents of the undated, but later, Bernard statement that originally appeared in Defendants' Statement of Facts, Dkt. 93, as Exhibit 4A. First, the evidence suggests that this statement was given...