NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-1146
JOHN C. VIEIRA, SECOND1
vs.
JOHN ALEXANDER & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from the dismissal of his claims on
summary judgment against three Barnstable police officers.3 The
claims -- for malicious prosecution and related torts -- were
based on an incident that occurred on July 12, 2018, when the
plaintiff was arrested following an argument with his son. The
plaintiff argues that his wife's and son's statements to a
police officer about the argument should have been corroborated
by a second officer and that, without such corroboration, there
1 As is our custom, we spell the plaintiff's name as it appears
in the complaint, although the lower court docket refers to the
plaintiff as John C. Veira, II.
2 Dennis Frankio and Anson Moore.
3 The order entered October 22, 2021, denying the plaintiff's
motion for relief from judgment is not before us, the plaintiff
having failed to notice an appeal from that order. Accordingly,
we do not consider any arguments, to the extent made, addressing
that order.
was no probable cause to arrest him, his tort claims were
viable, and the judge erred in granting summary judgment to the
defendants. We affirm.
"We review a decision to grant summary judgment de novo, to
determine 'whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law.'" Jenzabar, Inc. v. Long Bow Group, Inc., 82
Mass. App. Ct. 648, 649 (2012), quoting Bank of N.Y. v. Bailey,
460 Mass. 327, 331 (2011). "If a plaintiff has failed to
establish 'an essential element' of [his] case, all other facts
are rendered immaterial." Helfman v. Northeastern Univ., 485
Mass. 308, 314 (2020), quoting Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 716 (1991). Lack of probable cause is an
essential element in the plaintiff's claims of malicious
prosecution, false arrest, and false imprisonment; summary
judgment on these claims is proper where there is probable cause
to arrest.4 See, e.g., Gutierrez v. Massachusetts Bay Transp.
4 Probable cause is not an essential element of the plaintiff's
claims for malicious abuse of process and intentional infliction
of emotional distress. However, the plaintiff's brief raises no
argument other than the lack of probable cause and, therefore,
the dismissal of those claims is not before us. See Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
We also deem waived, to the extent raised, any argument that the
motion judge should have, sua sponte, recused himself, the
plaintiff having failed to raise that argument before judgment
entered. See Carey v. New England Organ Bank, 446 Mass. 270,
2
Auth., 437 Mass. 396, 405 (2002) (defendants' probable cause to
arrest precludes liability for false arrest and malicious
prosecution); Doggett v. Hooper, 306 Mass. 129, 133 (1940) ("An
arrest warranted by law is not false imprisonment").
"Probable cause in the context of a civil action for
malicious prosecution has long been defined as 'such a state of
facts in the mind of the . . . [defendant] as would lead a man
of ordinary caution and prudence to believe, or entertain an
honest and strong suspicion,' that the plaintiff had committed a
crime" (emphasis, footnote omitted). Carroll v. Gillespie, 14
Mass. App. Ct. 12, 19 (1982), quoting Lincoln v. Shea, 361 Mass.
1, 4-5 (1972). See Bednarz v. Bednarz, 27 Mass. App. Ct. 668,
672 n.5 (1989) ("probable cause is judged by an objective,
rather than a subjective standard"). "We examine 'the
information known to [the defendants] "at the time [they]
instituted the complaint rather than . . . what may turn out
later to have been the actual state of things."'" Chervin v.
Travelers Ins. Co., 448 Mass. 95, 104 (2006), quoting Carroll,
supra. "Implicit in this inquiry, however, is the question
whether it was reasonable for the defendant to have relied upon
that information, given its quality, quantity, and the
285 (2006). See also Matter of a Care & Protection Summons, 437
Mass. 224, 239 (2002) (belated request for recusal "suggests a
tactical decision in the face of an adverse ruling").
3
availability of additional information. The answer to this
question depends on the facts of the individual case." Carroll,
supra at 19-20.
Except where otherwise indicated, the following facts from
the summary judgment record are undisputed. On the evening of
July 12, 2018, the plaintiff got into a "very vicious argument"
with his son in the living room of the family's home about a
cell phone bill. During the argument, the plaintiff threw his
cell phone at his son,5 who was seated on the couch. The
plaintiff then turned around (without seeing where the cell
phone landed), walked away, and called the police.
Two officers responded separately to the call; the first
officer spoke to the plaintiff in the driveway, while the second
officer spoke to the plaintiff's wife and son on the front
porch. The plaintiff's wife and son told the second officer
that the plaintiff struck his son when he threw his cell phone;
the plaintiff did not hear this conversation. Based on the
statements of the plaintiff's wife and son, the second officer
arrested the plaintiff on charges of assault and battery, in
violation of G. L. c. 265, § 13A,6 and assault and battery with a
5 The plaintiff maintains that he "tossed his cellphone alongside
his son," rather than throwing the cell phone.
6 Section 13A prescribes the criminal penalty for assault and
battery, but does not define the crime; the elements are found
in the common law. See Commonwealth v. Slaney, 345 Mass. 135,
138 (1962). See also Commonwealth v. Bianco, 390 Mass. 254, 263
4
dangerous weapon (to wit, a phone), in violation of G. L.
c. 265, § 15A.7 The charges against him were ultimately
dismissed for lack of prosecution after his wife and son (the
only witnesses to the argument) declined to testify against him.
Here, the facts available to the second officer at the time
he arrested the plaintiff would give a reasonable person
probable cause to believe the plaintiff committed an assault and
battery by throwing his cell phone at his son. The second
officer's reliance on the plaintiff's wife's and son's account
of the argument was objectively reasonable under the
circumstances, as it came from two first-hand witnesses to the
altercation who expressed no disagreement as to how the event
occurred. Although corroboration of the wife's and son's
version of events was not necessary, partial corroboration came
from the fact that the plaintiff had himself called for the
police to come to the house because there had been an argument.
Because the summary judgment record showed that the plaintiff
had no prospect of establishing at trial that the defendants
(1983), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931)
("An assault and battery is the intentional and unjustified use
of force upon the person of another, however slight").
7 "[Section] 15A requires an assault by means of a dangerous
weapon, . . . and also an intentional, unjustified touching,
however slight, by means of that dangerous weapon."
Commonwealth v. Appleby, 380 Mass. 296, 306 (1980).
5
lacked probable cause at the time of his arrest, summary
judgment dismissing his claims was proper.
Judgment affirmed.
By the Court (Wolohojian,
Englander & D'Angelo, JJ.8),
Clerk
Entered: February 8, 2023.
8 The panelists are listed in order of seniority.
6