Wolski v. Gardner Police Dep't

560 F.Supp.3d 387

Joseph WOLSKI and Christina Wolski, Plaintiffs,

v.GARDNER POLICE DEPARTMENT, Eric McAvene, Danial Wildgrube, Michael Travers, and Matthew Prescott, Defendants.

CIVIL ACTION NO. 18-12631-WGY

United States District Court, D. Massachusetts.

Filed September 7, 2021

Herbert S. Cohen, Boston, MA, for Plaintiffs.

Gerard T. Donnelly, Courtney E. Mayo, Hassett & Donnelly, P.C., Worcester, MA, for Defendants Gardner Police Department, Eric McAvene.

Austin M. Joyce, Michael J. Akerson, Reardon, Joyce & Akerson, P.C., Worcester, MA, for Defendant Danial Wildgrube.

Joseph P. Kittredge, Lorena Galvez, Rafanelli & Kittredge, P.C., Acton, MA, for Defendant Michael Travers.

Daniel J. Moynihan, Jr., Mark A. Russell, Law Office of Daniel J. Moynihan, P.C., Stoneham, MA, for Defendant Matthew Prescott.

MEMORANDUM & ORDER

YOUNG, D.J.¹

I. INTRODUCTION

In theory, qualified-immunity summary-judgment cases are "a tug-of-war ... between who gets the benefit of the doubt: summary judgment requires absolute deference to the nonmovant's factual assertions, while qualified immunity demands deference to the reasonable, if mistaken, actions of the movant." Justiniano v. Walker, 986 F.3d 11, 27 (1st Cir. 2021) (quotations omitted); see Ortiz-Resto v. Rivera-Schatz, CIVIL ACTION NO. 17-02362-WGY, 2021 WL 2555488, at *3-4 (D.P.R. June 22, 2021) (recognizing "the complexity of deciding qualified immunity at the summary judgment stage").

In reality, this tug-of-war can result in a "super-summary judgment" standard: "[e]ven when an official is not entitled to summary judgment on the merits -- because the plaintiff has stated a proper claim and genuine issues of fact exist -- summary judgment can still be granted when the law is not reasonably clear." Jamison v. McClendon, 476 F. Supp. 3d 386, 405 (S.D. Miss. 2020) (quotations omitted) (quoting Mark R. Brown, The Fall and Rise of Qualified Immunity: From Hope to Harris, 9 Nev. L.J. 185, 195 (2008) ); see, e.g., Wilson v. Layne, 526 U.S. 603, 614-18, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999).

This case aptly illustrates the point. The undisputed facts show that Massachusetts State Police trooper Matthew Prescott ("Prescott") violated the Fourth Amendment rights of plaintiffs Joseph Wolski and Christina Wolski (collectively, the "Wolskis"). "But owing to a legal deus ex machina -- the ‘clearly established’ prong of qualified-immunity analysis -- the violation eludes vindication." See Zadeh v. Robinson, 928 F.3d 457, 478-79 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part), cert. denied, ––– U.S. ––––, 141 S. Ct. 110, 207 L.Ed.2d 1051 (2020).

A. Undisputed Facts

On January 20, 2016, Prescott and two other Massachusetts State Police troopers, Michael Travers ("Travers") and Danial Wildgrube ("Wildgrube"), traveled to the City of Gardner to begin a homicide investigation. Defs.’ Joint Statement Undisputed Facts ("Defs.’ SOF") ¶ 9, ECF No. 88. During the investigation, Francis Arbolay ("Arbolay") and his stepbrother Thomas Racine ("Racine") became persons of interest. Id. ¶ 10. Joseph Wolski, then an officer with the Gardner Police Department, offered to help locate Arbolay, explaining that he had a rapport with Racine. Id. ¶ 11. Joseph Wolski soon located Racine and interviewed him in the Gardner Police Station. Id. ¶ 13. During this recorded interview, Racine asked another police officer to leave the room so that Racine could speak with Joseph Wolski alone. Id. ¶¶ 14-15. Racine then asked to use Joseph Wolski's cell phone, a request which Joseph Wolski granted. Id. ¶ 15. Racine typed into the cell phone and gave it back to Joseph Wolski to read. Id. ¶¶ 15-16. Joseph Wolski read the message and told Racine that he would delete it. Id. ¶ 16. Joseph Wolski deleted the message and did not tell anyone at the Gardner Police Department what had happened. Id. ¶ 17. Joseph Wolski "normally used his personal cell phone to communicate with the informants he utilized as part of his job with the Gardner Police Department." Pls.’ Joint Statement Undisputed Facts ("Pis.’ SOF") ¶ 13, ECF No. 102.

The District Attorney's Office indicted Arbolay for homicide. Defs.’ SOF ¶ 20. The Massachusetts Superior Court sitting in and for the county of Worcester later allowed Arbolay's motion to compel the preservation and production of "all field, investigation, and/or other notes or communications -- written, electronic, or otherwise -- generated by or between law enforcement officials or any other agents of the Commonwealth during response to and investigation of the incident that gave rise to this case." Defs.’ Joint Mot. Summ. J. ("Defs.’ Mot."), Ex. F, Mot. Preserve & Provide Police Notes ("Superior Court Order"), ECF No. 87-6.

An Assistant District Attorney subsequently asked Wildgrube "to ensure the extraction of the data from the cell phones of all investigators ...." Defs.’ SOF ¶ 22. Wildgrube, in turn, assigned Prescott to conduct a data extraction of approximately nine cell phones belonging to various officers of the Massachusetts State Police Department and Gardner Police Department. Id. ¶¶ 23-26. Lieutenant Eric McAvene ("McAvene"), who was third in command at the Gardner Police Department, Pls.’ SOF ¶ 15, summoned Joseph Wolski and "inform[ed] [him] of the [Superior] Court's Order for his cell phone," Defs.’ SOF ¶¶ 28-29, to which he responded by "hand[ing] over [his] personal cell phone to defendant McAvenue [sic]," Aff. Pl. Joseph Wolski ¶ 16, ECF No. 104. Joseph Wolski explained, however, that the cell phone he "currently had wasn't even the same phone [he] had used during [his] involvement with the Arbolay matter and the Racine interview -- [his] wife and [he] had upgraded since that time, and [he] didn't even think it had the same phone number." Id. ¶ 15. McAvene then gave Joseph Wolski's cell phone to Travers, "who left the room with it for about 45 minutes," id. ¶ 17. Travers gave Joseph Wolski's cell phone to Prescott, who conducted the data extraction. Defs.’ SOF ¶ 30.

To conduct the data extraction, Prescott used Cellebrite, a software installed on his laptop. Defs.’ Mot., Ex. D, Aff. Def. Matthew Prescott ("Prescott Aff.") ¶ 8, ECF No. 87-4. Prescott is a "trained specialist in computer and cell phone extractions" who has conducted more than 500 cell phone extractions for the Massachusetts State Police Department. Id. ¶ 4. He has "completed numerous training opportunities and received certifications in the area of processing computers and cell phones," and he also has "obtained a certification to extract information from computers and cell phones using the Cellebrite software." Id. Cellebrite "does not provide an option to pick which data [are] extracted during the process," meaning that data extractions through Cellebrite copy the entire "file system, which includes all the data on the phone." Defs.’ SOF ¶ 23. After conducting the data extraction, Prescott returned Joseph Wolski's cell phone to him, left the Gardner Police Department, gave a copy of the data to Travers on a disc, did not copy or share the data again, and deleted the data from his laptop hard drive at the conclusion of the Arbolay case. Prescott Aff. ¶¶ 11-15.

The Wolskis kept consensually taken photographs of their sexual activity (the "intimate data") in a "locked photo album vault" on Joseph Wolski's personal cell phone. Pls.’ SOF ¶¶ 31, 33; Remote Dep. Christina Wolski 59:17-19, ECF No. 87-7. Prescott's data extraction extended into this locked photo album vault. Pls.’ SOF ¶ 39. McAvene later learned of and told other Gardner Police Department officers about the intimate data, id. ¶¶ 39-41, and word subsequently spread further in the Gardner Police Department, id. ¶ 43.

B. Procedural History

In December 2018, the Wolskis filed the operative complaint for invasion of privacy in violation of 42 U.S.C. § 1983 (count I), conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985 (count II), negligent training and supervision in violation of the Massachusetts Tort Claims Act (count III), crimes against chastity, morality, decency, and good order in violation of Massachusetts General Laws chapter 272, section 105(c) (count IV), and intentional infliction of emotional distress (count V). First Am. Verified Compl. & Jury Demand ("Am. Compl.") 1, ECF No. 30.

When the Massachusetts State Police Department moved to dismiss, Def. Massachusetts State Police Department's Mot. Dismiss Pls.’ First Am. Verified Compl., ECF No. 31, this Court allowed the motion, holding that the Eleventh Amendment shields the Massachusetts State Police Department from suit, Wolski v. Gardner Police Dep't, 411 F. Supp. 3d 187, 194 (D. Mass. 2019).

The Gardner Police Department, McAvene, Travers, Wildgrube, and Prescott moved for summary judgment. Defs.’ Mot.; Defs.’ SOF; Def. Michael Travers’ Mem. Law Supp. His Mot. Summ. J., ECF No. 89; Mem. Supp. Def. Danial Wildgrube's Mot. Summ. J., ECF No. 90; Def. Matthew Prescott's Mem. Law Supp. His Mot. Summ. J. ("Prescott's Mem."), ECF No. 91; Mem. Supp. Defs. Gardner Police Department & Lieutenant Eric McAvene's Mot. Summ. J., ECF No. 92. The Wolskis opposed the motion. Pls.’ Opp'n Defs.’ Joint Mot. Summ. J. ("Pls.’ Opp'n"), ECF No. 101.

This Court held oral argument on July 8, 2021. See Elec. Clerk's Notes, ECF No. 111. When arguments concluded, this Court made several rulings. First, this Court dismissed the Gardner Police Department because it is not a suable entity, see Henschel v. Worcester Police Dep't, 445 F.2d 624, 624 (1st Cir. 1971), noting further that a motion for leave to amend the complaint to name the City of Gardner would be futile as to counts I and II and that this Court would decline to exercise supplemental jurisdiction over counts III, IV, and V, see 28 U.S.C. § 1367(c)(3). Second, this Court construed this civil action as an individual-capacity suit and not an official-capacity suit. See Powell v. Alexander, 391 F.3d 1, 22 (1st Cir. 2004). Third, this Court...