United States Court of Appeals
For the First Circuit
No. 07-1644
TIMOTHY L. LAFRENIER,
Plaintiff, Appellant,
v.
MARY ANNE KINIREY; DANIEL MORRISON; TOWN OF TOWNSEND,
Defendants, Appellees,
WILLIAM E. MAY,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Sean J. Gallagher for appellant.
Joseph L. Tehan, Jr. with whom Jackie Cowin and Kopelman and
Paige, P.C. were on brief for appellees.
December 16, 2008
LYNCH, Chief Judge. Timothy LaFrenier appeals from the
entry of summary judgment on his civil rights claims against the
Town of Townsend, Massachusetts and two police officers. The
appeal raises again the familiar but erroneous claim that summary
judgment may be defeated on an argument of mere disbelief of the
moving party's evidence.
The claims arose from events midday on June 15, 2001 when
Townsend police found LaFrenier sitting in his car, pulled over by
the side of the road. He was admittedly disoriented, confused,
unresponsive, and uncooperative. It turned out the cause of this
was that LaFrenier was sick and on medications, but this was not
known until after the key events which led to this case. A request
from a responding officer, defendant Mary Anne Kinirey, to
LaFrenier to step out of the car resulted in LaFrenier's struggling
with two officers, Kinirey and Daniel Morrison. This in turn led
to criminal charges against him of assault and battery on two
police officers, resisting arrest, and disorderly conduct.
Ultimately the charges were either dismissed or resulted in
LaFrenier's acquittal in March 2002.
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More than two years later, LaFrenier brought suit in
federal court asserting federal and state claims1 against the
defendants.
Defendants moved for summary judgment, offering evidence
of the officers' version of the events. Plaintiff said he had no
memory of the key events and so offered no contradictory evidence.
He sought to forestall summary judgment on the basis that the
officers' accounts of the events were not believable.
The court granted judgment on the merits, extensively
discussing the facts in its thoughtful opinion. LaFrenier v.
Kinirey, 478 F. Supp. 2d 126 (D. Mass. 2007). The court found it
unnecessary to reach defendants' qualified immunity defenses. For
our purposes, we merely summarize the court's conclusions. The
court entered judgment on the wrongful arrest claims under both
state and federal law finding there was probable cause to make an
arrest for assault and battery on the officers, for resisting
arrest, and for disorderly conduct.
1
The pertinent allegations of the complaint are that (1)
Officers Morrison and Kinirey violated 42 U.S.C. § 1983 by making
a false arrest, by using excessive force, by failing to provide
medical treatment, and by lodging and prosecuting false charges
against LaFrenier; (2) all defendants violated LaFrenier's civil
rights pursuant to Mass. Gen. Laws ch. 12, § 11I by force,
intimidation, and violence; (3) the Town of Townsend violated Mass.
Gen. Laws ch. 258, § 2 through its negligence; (4) Morrison and
Kinirey committed assaults and batteries against LaFrenier; (5)
Morrison and Kinirey committed a false arrest against LaFrenier;
and (6) Morrison and Kinirey committed abuse of process against
LaFrenier. LaFrenier asked for compensatory and punitive damages.
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On the excessive force claim, the court concluded that it
was undisputed that LaFrenier actively resisted arrest, that he
attempted to flee, that he posed a risk to himself and to others,
and that the force the officers used was not excessive.
On the medical treatment claim, the court concluded there
was absolutely no evidence the officers were deliberately
indifferent to LaFrenier's medical needs.
On the false prosecution charge against the two officers,
the court concluded there was both probable cause for the arrest
and no showing of improper motive. There was also no evidence to
support the pendent state claims.
The appeal sounds a single key theme: that summary
judgment could not be granted because LaFrenier is entitled to
attack the credibility of the officers' testimony. As a matter of
law this is incorrect. The Supreme Court held in Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986), that a plaintiff may not
defeat summary judgment by merely asserting that the jury might,
and legally could, disbelieve the defendant's denial. See id. at
252; see also, e.g., Sears, Roebuck & Co. v. Goldstone & Sudalter,
P.C., 128 F.3d 10, 18 (1st Cir. 1997) ("A party cannot create an
issue for the trier of fact 'by relying on the hope that the jury
will not trust the credibility of witnesses.'" (quoting Dragon v.
R.I. Dep't of Mental Health, Retardation & Hosps., 936 F.2d 32, 35
(1st Cir. 1991))); Moreau v. Local Union No. 247, Int'l Bhd. of
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Firemen, 851 F.2d 516, 519 (1st Cir. 1988); Schoonejongen v.
Curtiss-Wright Corp., 143 F.3d 120, 129-30 (3d Cir. 1998).
Here, LaFrenier agrees he has no affirmative evidence
contrary to the defendants' evidence. He argues both that there
are such inherent inconsistencies in the officers' testimony and
that the officers' testimony is so inherently unbelievable as to
allow him to get to a jury. This case does not present the limits
of the viability of those assumptions because neither assumption is
supported by the record.
We agree with the district court that there was nothing
inherently unbelievable about either officer's testimony. For his
claim of inconsistency, LaFrenier relies on the fact that one
officer's police report did not provide a complete report of all of
the events or all of the details of plaintiff's assault on her.
However, a review of the officer's deposition testimony and the
police report reveals that there are no inconsistencies between the
two. The deposition testimony adds more details to the account
contained in the police report, but nothing in those details is
inconsistent. Further, the district court took these "omissions"
into account and correctly concluded that nonetheless, on the
version of the undisputed facts most favorable to LaFrenier,
defendants were entitled to summary judgment. The court did not,
as LaFrenier argues, presume the truth of the officers' accounts;
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rather it looked to whether plaintiff had put material facts in
dispute.
LaFrenier's last argument is that summary judgment must
be denied based on the fact that the police officers were not
"disinterested" witnesses. He bases this on a reading of certain
language in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000), which states:
[T]he court should give credence to the
evidence favoring the nonmovant as well as
that "evidence supporting the moving party
that is uncontradicted and unimpeached, at
least to the extent that that evidence comes
from disinterested witnesses."
Id. at 151 (quoting 9A C. Wright & A. Miller, Federal Practice &
Procedure § 2529, at 300 (2d ed. 1995)). LaFrenier reads Reeves as
precluding summary judgment where the movant relies on the
testimony of interested witnesses. We have rejected that reading
of Reeves in this circuit.2 See Dennis v. Osram Sylvania, Inc.,
___ F.3d ___, 2008 WL 5158868, at * 3 (1st Cir. Dec. 10, 2008) ("At
summary judgment we need not exclude all interested testimony,
specifically testimony that is uncontradicted by the nonmovant.");
Ronda-Perez v. Banco Bilbao Vizcaya Argentaria-P.R., 404 F.3d 42,
45-46 (1st Cir. 2005) (refusing to accept argument that witnesses
2
While the court did not reach the qualified immunity
defense asserted by the defendants, we note that qualified immunity
turns on assessing the situation from the point of view of an
objectively reasonable officer and that defendants would be
entitled to immunity in any event.
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connected with the defendant should be "deemed unworthy of
belief"). Other circuits have also rejected that reading. See,
e.g., Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72
(3d Cir. 2007); Luh v. J.M. Huber Corp., 211 F. App'x 143, 146 (4th
Cir. 2006); Stratienko v. Cordis Corp., 429 F.3d 592, 597-98 (6th
Cir. 2005). A similar rule is applied at trial. Quintana-Ruiz v.
Hyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002) ("Juries . . .
may reject uncontradicted, unimpeached testimony when it is
improbable, inherently contradictory, riddled with omissions, or
delivered in a manner giving rise to doubts. There must otherwise
be some affirmative evidence in the record to put the witness's
credibility in doubt." (citations omitted)).
Plaintiff's citation to Bazan v. Hidalgo County, 246 F.3d
481 (5th Cir. 2001), does not help. See id. at 491-93 (holding a
genuine dispute over material facts existed where the only evidence
came from the uncorroborated testimony of the defendant police
officer, the sole survivor of a shooting, and where the record cast
doubt on his credibility). The Fifth Circuit has applied its Bazan
holding narrowly and refused to allow a nonmovant to defeat summary
judgment where, as here, he or she "points to nothing in the
summary judgment record that casts doubt on the veracity of the
[witness's] version of the events." Aujla v. Hinds County, No. 01-
60699, 2003 WL 1098839, at * 4 (5th Cir. Feb. 11, 2003).
We affirm the grant of summary judgment to defendants.
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