LaFrenier v. Kinirey

          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.




                                      -2-
          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;




                                -5-
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.

                                   -6-
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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