Wilber v. Curtis

United States Court of Appeals
For the First Circuit

No. 16-2250

ROBERT JUDE WILBER,

Plaintiff, Appellant,

v.

ROBERT CURTIS; BRIAN KINSELLA; MICHAEL ROGERS,

Defendants, Appellees,

MICHAEL SIMONEAU,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Jennifer C. Boal, Magistrate Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

Richard K. Latimer for appellant.
Thomas R. Donahue, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins and Kesten, LLP were on brief,
for appellees.

September 20, 2017
 BARRON, Circuit Judge. This appeal concerns a challenge

to a summary judgment ruling that dismissed a lawsuit that a

Massachusetts property owner brought against three police

officers. The suit addressed the owner's arrest for actions that

he took in connection with his objection to the clearing of

vegetation on his property by the work crew for an electrical

utility, which held an easement to the property. We affirm the

grant of summary judgment in part and vacate in part.

I.

We first recount the following undisputed facts. We

take them from the unchallenged findings that are set forth in the

Order on the Parties' Motions for Summary Judgment issued by the

Magistrate Judge assigned to the case.

The plaintiff is Robert Wilber. He resides and owns

property in Falmouth, Massachusetts. NStar Corporation ("NStar"),

which is an electrical company, possesses a deeded easement over

a part of Wilber's property. The deed grants NStar an "easement

to erect, operate, maintain and remove a line . . . for the

transmission of electricity. . . . [t]ogether with the right to

trim, cut and remove such trees and underbrush as in the judgment

of [NStar] may interfere with or endanger said line and equipment

and to enter upon said land for any of the aforesaid purposes."

(last modification added).

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 NStar employs Vegetation Control Services ("VCS") "to

clear vegetation on its easements in order to provide for the

maintenance of power lines and structures." The District Court

recognized that Wilber describes himself as "a vocal opponent of

NStar's program of spraying herbicides on its utility easements,"

and that he is of the view that "NStar's program of clear-cutting"

on those easements "was overly aggressive."

In early November, 2011, Wilber saw two VCS employees at

a worksite near his property. Wilber approached the VCS employees

and "hassled" them. As a result of this confrontation, VCS

requested a police presence at future worksites on Wilber's

property.

On November 21, 2011, a week after that earlier encounter

between Wilber and VCS employees, VCS crew members came onto the

easement on Wilber's property in order to begin their work in

clearing vegetation from the site. As a result of VCS's request

for a police presence, the crew members were accompanied by two

Barnstable Police Officers, Officer Robert Curtis and Officer

Brian Kinsella, each of whom is a defendant in this case.

Two VCS employees "measured the clearing distance from

the center of the power lines toward the abutting properties and

marked the clearing area with red tape tied off to tree limbs."

Upon seeing the crew at work, Wilber went into "a high state of

agitation." And, after observing "chainsaws and heavy-duty

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machinery in action within the clearing area; Wilber vocally

protested and strung yellow caution tape and plastic rope across

the easement."

A VCS employee observed Wilber's actions and informed

the two officers. "Curtis observed the tape 'zig-zagged' across

the easement and saw Wilber, who was standing in the easement,

taking pictures." The officers, together with two VCS crewmembers,

attempted to remove the yellow caution tape, which "caused an

interruption to the work of the VCS crew." Kinsella then told

Wilber that Wilber would be arrested if he "interfered with the

removal of the vegetation within the easement."

Wilber responded that VCS's clear-cutting work on his

property must stop. Kinsella, in turn, "informed Wilber that the

work would not stop absent a court order" and instructed Wilber

"to stand outside the marked area easement area while the crew was

working." Wilber, however, "disregard[ed]" these instructions.

"[W]hen [Wilber] reentered the worksite, a large machine was in

use eighty to one hundred feet away, a chainsaw was in use fifty

feet away, and another chainsaw was being sharpened twelve to

fifteen feet away."

Kinsella again asked Wilber "to stay outside the red

tape markers" set out by VCS. Wilber refused and sat down on a

freshly cut tree stump. While Wilber was sitting on the stump,

the VCS crew stopped working. Wilber shouted to the workers that

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they "didn't have to do this." Curtis and Kinsella then approached

Wilber, and Curtis asked Wilber once more to leave the work area.

The officers warned Wilber to leave the worksite at least three

more times and notified Wilber that noncompliance could result in

his arrest. Rather than complying, "Wilber [then] stood up, placed

his hands behind his back, and did not resist arrest."

The officers first took Wilber to the police station for

booking, where he was booked by Curtis and a third Barnstable

Police Officer, Michael Rogers, who is the other defendant in this

case. Wilber was then brought to Falmouth District Court, where

he was held pending arraignment. That same day, the Commonwealth

filed in that court a criminal complaint for one count of

disorderly conduct against Wilber. The Commonwealth dismissed the

complaint on October 15, 2012.

This lawsuit followed. On November 20, 2014, Wilber

filed suit in Barnstable County Superior Court against Curtis,

Kinsella, and Rogers. Wilber's complaint contained one claim

arising under federal law: an allegation that the officers violated

Wilber's civil rights under 42 U.S.C. § 1983. The complaint also

contained five claims under Massachusetts law: violation of civil

rights under the Massachusetts Civil Rights Act ("MCRA"), Mass.

Gen. Laws ch. 12, § 11H, the state analogue to § 1983; malicious

prosecution; intentional infliction of emotional distress; false

arrest; and false imprisonment.

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 On January 22, 2015, the defendants removed the case to

the United States District Court for the District of Massachusetts.

On February 3 and 4, 2016, the parties filed cross-motions for

summary judgment, with the defendants moving for summary judgment

as to all claims and Wilber moving for summary judgment as to four

of the claims. The District Court initially assigned a magistrate

judge to the case to consider the cross-motions. On the consent

of both parties, the case proceeded before the Magistrate Judge

for all purposes. See LimoLiner, Inc. v. Dattco, Inc., 809 F.3d

33, 35 n.1 (1st Cir. 2015). The Magistrate Judge granted the

defendants' summary judgment motion as to all of the claims.

The Magistrate Judge first considered Wilber's § 1983

claim. With respect to that claim, the Magistrate Judge -- relying

on Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997) -- noted

that a plaintiff must show "two essential elements." Id. First,

"the challenged conduct must be attributable to a person acting

under color of state law." Second, "the conduct must have worked

a denial of rights secured by the Constitution or by federal law."

Id.

The Magistrate Judge found that the defendants did not

contest that they were acting under color of state law. The

Magistrate Judge then turned to the question whether the officers

had violated Wilber's constitutional rights -- and specifically

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whether his Fourth Amendment right against unreasonable seizure

had been violated by his arrest.

The defendants contended that Wilber's Fourth Amendment

right had not been violated because they had probable cause to

arrest Wilber for having committed any of four separate state law

offenses -- disorderly conduct, Mass. Gen. Laws ch. 272 § 53

(2015); disturbing the peace, id.; trespass, Mass. Gen. Laws ch.

266 § 120 (2001); and interfering with a police officer in the

performance of his duties, see Commonwealth v. Shave, 965 N.E.2d

227 (Mass. App. Ct. 2012) (affirming the validity of this common

law crime); Mass. Gen. Laws ch. 279 § 5 (2017) (providing for the

existence of common law crimes). They further contended that they

were entitled to summary judgment because the record showed that

no reasonable jury could find that the officers lacked probable

cause to conclude that Wilber had committed at least one of these

offenses.

In considering the defendants' summary judgment motion

on the § 1983 claim, the Magistrate Judge addressed only whether

there was probable cause to arrest Wilber for disturbing the peace,

Mass. Gen. Laws ch. 272, § 53, and for disorderly conduct, id.

The Magistrate Judge determined that, although genuine issues of

material fact existed as to whether probable cause existed with

regard to whether the officers lacked probable cause to arrest

Wilber for disorderly conduct, Wilber's § 1983 claim failed because

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no reasonable jury could find that the officers lacked probable

cause to arrest Wilber for disturbing the peace.

The Magistrate Judge then turned to Wilber's claim under

Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12,

§ 11H, which is Massachusetts' analogue to § 1983. The Magistrate

Judge explained that because it had "found for the defendants on

the Section 1983 claims, Wilber’s claims necessarily fail to pass

the narrower MCRA test." The Magistrate Judge also noted that, in

light of its ruling that there was no genuine issue of material

fact as to whether the officers lacked probable cause to arrest

Wilber for disturbing the peace, there was no need to "address the

parties' qualified immunity arguments."

The Magistrate Judge then turned to a consideration of

Wilber's remaining state law claims: false arrest, false

imprisonment, malicious prosecution, and intentional infliction of

emotional distress. The Magistrate Judge noted that Wilber's false

arrest, false imprisonment, and malicious prosecution claims could

survive summary judgment only if there was a genuine dispute of

material fact as to whether the officers lacked probable cause to

arrest Wilber. The Magistrate Judge then entered summary judgment

for defendants on those three state claims.

As to the fourth state claim, intentional infliction of

emotional distress, the Magistrate Judge entered summary judgment

as well. The Magistrate Judge found that there was no genuine

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issue of material fact in dispute as to whether the officers were

"carrying out their obligations as law enforcement officials."

Thus, the Magistrate Judge concluded that there was no genuine

issue of disputed fact concerning whether the officers' conduct

could be "deemed extreme and dangerous," as, in light of Lund v.

Henderson, 22 F. Supp. 3d 94, 106 (D. Mass. 2014), and Godette v.

Stanley, 490 F. Supp. 2d 72, 81 (D. Mass. 2007), the officers'

conduct would have to have been deemed in order for the officers

to be liable for the intentional infliction of emotional distress.

Finally, the Magistrate Judge separately considered

whether summary judgment should be granted to the third defendant,

Rogers, as to all of Wilber's claims, state and federal. The

Magistrate Judge determined that the record clearly showed that

Rogers was not involved in Wilber's arrest and that he did not

even read the police report on the day of the arrest. The

Magistrate Judge thus determined that a reasonable jury could not

find Rogers to have had a sufficient "personal connection" with

the underlying arrest to be subject to liability on any of Wilber's

claims in light of Eason v. Alexis, 824 F. Supp. 2d 236 (D. Mass.

2011), which holds that, under Massachusetts law, a "police officer

does not 'arrest' a suspect unless he physically seizes the suspect

or the suspect submits to his authority and control," id. at 242.

With the summary judgment ruling in place, Wilber then

filed this timely appeal in which he seeks to have that ruling

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overturned as to each claim and as to each defendant. Our review

of the District Court's grant of summary judgment to the defendants

is de novo. Braga v. Hodgson, 605 F.3d 58, 60 (1st Cir. 2010).

We must "affirm if the evidence, viewed in the light most favorable

to [the] plaintiff[], shows that there is no genuine issue as to

any material fact and that the [officers are] entitled to summary

judgment as a matter of law." Abreu-Guzmán v. Ford, 241 F.3d 69,

73 (1st Cir. 2001).

II.

We begin our consideration of the challenge to the ruling

below by addressing the portion of that ruling that addresses

Wilber's only federal law claim, which Wilber brings pursuant to

42 U.S.C. § 1983. The District Court based its ruling on this

claim on its determination that the record clearly showed that

there was probable cause to arrest Wilber for disturbing the peace,

see Mass. Gen. Laws ch. 272, § 53, and that no reasonable jury

could find otherwise. Wilber contends on appeal, as he did below,

that this conclusion is wrong. And he also challenges the

defendants' arguments regarding the other state law offenses that

the defendants identify as ones for which no reasonable jury could

find the officers lacked probable cause to arrest Wilber.1 But,

1
Wilber does not dispute the defendants' contention
that, notwithstanding that Wilber was ultimately charged only with
disorderly conduct, the grant of summary judgment on his § 1983
claim must be affirmed so long as there was probable cause to

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we need not address the merits of Wilber's various arguments on

this score because, as the defendants contend, we may affirm the

grant of summary judgment on qualified immunity grounds. See Sands

v. Ridefilm Corp., 212 F.3d 657, 662 (1st Cir. 2000) ("There can

be no question of our power to rely on a different ground than the

district court did in affirming its judgment[.]").

In determining whether a government official is entitled

to qualified immunity under § 1983, we must determine not only

whether the official violated a federal statutory or

constitutional right, Ciolino v. Gikas, 861 F.3d 296, 302 (1st

Cir. 2017), but also "whether the right was 'clearly established'

at the time of" the challenged governmental conduct, id. at 303.

A clearly established right is one that is "sufficiently clear

that every reasonable official would have understood that what he

is doing violates that right." Reichle v. Howards, 566 U.S. 658,

664 (2012) (citations and alterations omitted). And, a government

official, in consequence of qualified immunity, may not be held

liable under § 1983 unless the official is found to have violated

a federal law right that is clearly established. Id.

We have explained that, with respect to a § 1983 claim

that seeks to hold a police officer liable for making a warrantless

arrest without probable cause, "if the presence of probable cause

arrest Wilber for any of the state law offenses that the defendants
identify.

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is arguable or subject to legitimate question, qualified immunity

will attach." Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004). We

also have made clear that police officers are, in determining

whether probable cause exists to make a state law arrest, entitled

to qualified immunity for their reasonable but mistaken

assessments of the bounds of state law. Cortés-Reyes v. Salas-

Quintana, 608 F.3d 41, 51–52 (1st Cir. 2010) (holding that

defendants were protected by qualified immunity because the

underlying state law was uncertain, and "any conclusions we might

draw about the relevant Commonwealth law would be uncertain at

best").

Here, as we have noted, the defendants identify two state

law offenses for which an officer reasonably could have determined

that there was probable cause to arrest Wilber beyond the two state

law offenses (disorderly conduct and disturbing the peace) that

the Magistrate Judge considered. In affirming the grant of summary

judgment on qualified immunity grounds, we focus on only one of

these two other state law offenses: interfering with the duties

of a police officer, which is a common law crime in Massachusetts.

See Shave, 965 N.E.2d at 227 (affirming the validity of this common

law crime); Mass. Gen. Laws 279 § 5 (2017) (providing for the

existence of common law crimes); see also Commonwealth v. Tobin,

108 Mass. 426, 426 (1871) (affirming a conviction for a defendant

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who had "knowingly and designedly . . . hinder[ed], resist[ed] and

oppose[d] a police officer").

The defendants contend that the record shows that there

was probable cause to arrest Wilber for this offense for the

following reasons. They argue that the record shows that, at the

time of the arrest, Kinsella and Curtis "were engaged in the lawful

performance of their duties to keep citizens out of the easement

area and worksite for the safety of the public and the VCS

crewmembers." And, the defendants further argue, Wilber "refused

numerous requests to leave the worksite." Thus, they contend that

the officers had probable cause to arrest Wilber for this offense,

given that state law supports the conclusion that an individual

commits this offense by "knowingly and

designedly . . . hinder[ing], resist[ing], and oppos[ing], against

the peace of the Commonwealth." See Tobin, 108 Mass. at 426; see

also Docket No. 1557 CR 000243 (Wrentham Dist. Ct. 2015) (charging

a defendant with the crime of interference with a police officer

for "intimidat[ing], hinder[ing] or interrupt[ing] a police

officer in the lawful course of his or her duty."). The defendants

go on to assert that, at the least, the record indisputably shows

that they acted reasonably in so concluding. As a result, they

contend that, at a minimum, the record shows that they are entitled

to summary judgment on qualified immunity grounds and thus that

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the ruling below granting them summary judgment on this claim must

be affirmed.

In response, Wilber chiefly trains his focus on whether

there was probable cause to arrest him for disturbing the peace or

for disorderly conduct, and he gives only scant attention to this

independent ground for effecting his arrest, in which interfering

with the duties of a police office is the relevant offense. Wilber

does assert that his actions challenging the clearing of the

vegetation are protected by the First Amendment and that the cases

that the defendants cite to show that his conduct at the worksite

suffices to support an arrest for the crime of interfering with

the duties of a police officer each involved the use of physical

force against the officer, which did not occur here.

But, for purposes of qualified immunity, it is not enough

to show that the officers may have made a mistaken determination

about whether Wilber's conduct provided probable cause to conclude

that he had committed the offense for which he was arrested.

Wilber must show that it was clear under state law that there was

not probable cause to arrest him for this crime. See Cox, 391

F.3d at 31. And, with respect to that question, Wilber cites no

authority -- and we are aware of none -- that would suggest that

it was clear at the time of his arrest that this offense does not

encompass the particular circumstances that the officers

confronted.

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 After all, Wilber does not dispute that Kinsella and

Curtis were present at the worksite for a legitimate law

enforcement reason, that he placed yellow tape across the worksite

which the officers had to take down, or that he then remained on

the site after those officers repeatedly requested that he leave

in consequence of his actions and even after the officers had

informed him that he would be arrested if he failed to comply with

their request that he leave. To be sure, Wilber is right that

there is nothing in the record to suggest that he had any physical

contact with the officers. But Wilber cites to no Massachusetts

authority that would indicate such contact is a requirement of the

crime, nor does he make any argument as to why it would be

unreasonable to conclude that no such requirement exists. Rather,

the cases he does cite for the proposition that physical contact

is required merely show that one can commit the crime by engaging

in such conduct, see Shave, 81 Mass. App. Ct. 1131; Tobin, 108

Mass. at 429 (describing this crime to include an "affray or

assault," but failing to say that such physical contact is a

requirement of the offense), and not that this offense imposes any

requirement that such conduct must have occurred. See Tobin, 108

Mass. at 426.

Thus, while the defendants bear the burden of proving

that they are entitled to summary judgment on qualified immunity

grounds, we conclude that that they have met that burden here.

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Accordingly, we affirm the grant of summary judgment on this

ground.

III.

We turn next to the portions of the summary judgment

order that concerns Wilber's five state law claims. Those claims

are, to recap, for deprivation of civil rights under the

Massachusetts Civil Rights Act (MCRA), intentional infliction of

emotional distress, malicious prosecution, false arrest, and false

imprisonment.

The District Court granted the defendants' motion for

summary judgment to all three defendants on all five state law

claims. On appeal, Wilber asks us to reverse the summary judgment

ruling as to each of these state law claims as to each defendant.

He does so on the ground that there is a genuine issue of material

fact as to each claim that precludes the grant of summary judgment.

We begin by noting that each of the state law claims at

issue is in federal court solely as a result of an exercise of

supplemental jurisdiction. See 28 U.S.C. § 1367. Given our

decision to affirm the grant of summary judgment as to the § 1983

claim, however, there is no longer any federal claim in this case.

And the Supreme Court has instructed that "in the usual case in

which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the pendent jurisdiction

doctrine -- judicial economy, convenience, fairness, and

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comity -- will point toward declining to exercise jurisdiction

over the remaining state-law claims." Carnegie–Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988); see also 28 U.S.C. §

1367(c)(3).

In accord with that guidance, moreover, we have held

that, when all federal claims have been dismissed, it is an abuse

of discretion for a district court to retain jurisdiction over the

remaining pendent state law claims unless doing so would serve

“the interests of fairness, judicial economy, convenience, and

comity.” See Desjardins v. Willard, 777 F.3d 43, 45-46 (1st Cir.

2015) (citation omitted); Rivera-Díaz v. Humana Ins. of Puerto

Rico, Inc., 748 F.3d 387, 392 (1st Cir. 2014). We have also held

that, under this standard, it can be an abuse of discretion -- if

no federal claim remains -- for a district court to retain

jurisdiction over a pendent state law claim when that state law

claim presents a substantial question of state law that is better

addressed by the state courts. Desjardins, 777 F.3d at 45-46.

Nevertheless, as just noted, Wilber does not argue on

appeal that, once the federal claim was dismissed on summary

judgment (as we have determined that the District Court rightly

held), it was an abuse of discretion for the District Court to

retain jurisdiction over the pendent state law claims and thus

that the grant of summary judgment as to the pendent state law

claims must be vacated per Desjardins. Wilber instead asks us to

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overturn the summary judgment ruling as to all of the pendent state

law claims solely on the ground that the Magistrate Judge erred,

as to each of those claims, in concluding that there was no genuine

issue of material fact that would preclude granting summary

judgment to the defendants. Thus, as we are confronted with only

this limited challenge to the ruling below as to the five pendent

state law claims, we see no reason not to affirm at least those

portions of the ruling granting summary judgment that are so

plainly correct that no substantial question of state law is

presented. See Disher v. Info. Res., Inc., 873 F.2d 136, 141 (7th

Cir. 1989) (affirming as "sensibl[e]" a district court's decision

to "take a quick look" to determine whether remaining state law

claims "could perhaps be wound up then and there").

Against this background, we affirm the grant of summary

judgment as to Wilber's MCRA claim as to all three defendants, as

our reason for affirming the grant of summary judgment to the

defendants on Wilber's § 1983 claim necessarily compels that

result. See Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002)

(citing Duarte v. Healy, 537 N.E.2d 1230, 1232 (Mass. 1989) ("The

same qualified immunity standard that applies under § 1983 has

also been held to apply to claims under the MCRA[.]")). We

likewise affirm the District Court's grant of summary judgment to

all defendants on Wilber's claim for intentional infliction of

emotional distress. Even if Wilber's cursory treatment on appeal

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of the Magistrate Judge's grant of summary judgment on the

intentional infliction of emotional distress claim as to each

defendant does not amount to a waiver of his challenge to that

ruling, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived."), Wilber identifies nothing in the record that

could support a conclusion that the officers "intended to inflict

emotional distress or . . . knew or should have known that

emotional distress was the likely result of [their] conduct[,]"

Limone v. United States, 579 F.3d 79, 94 (1st Cir. 2009) (quoting

Agis v. Howard Johnson Co., 355 N.E.2d 315, 318 (Mass. 1976)).

That still leaves, though, the portion of the District

Court's order that grants summary judgment to each of the

defendants on Wilber's three remaining pendent state law claims,

which are for malicious prosecution, false arrest, and false

imprisonment. Here, things are a bit more complicated.

With respect to Rogers, we have no trouble affirming the

grant of summary judgment as to the malicious prosecution claim

because Wilber makes no argument as to how Rogers -- who, by

Wilber's own account, was involved only in booking Wilber -- could

be liable for malicious prosecution. In particular, Wilber has

not identified any evidence in the record that could support a

finding that Rogers had an "improper purpose" in taking the action

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that he did, notwithstanding that proof of such a purpose is an

essential "element of malicious prosecution." See Chervin v.

Travelers Ins. Co., 858 N.E.2d 746, 756, 758 (Mass. 2006)

("We . . . adopt the 'improper purpose' formulation . . . [for]

the element of 'malice.'").

Similarly, we have no trouble affirming the grant of

summary judgment as to Rogers on the false arrest claim. As Wilber

acknowledges, Massachusetts law precludes liability for false

arrest for an officer who does not "participate[] in the arrest"

and acts "in good faith and in the performance of his duties."

See Mass. Gen. Laws Ann. ch. 263, § 3. But, Wilber argues only

that Kinsella and Curtis directly participated in the arrest, not

that Rogers did as well. Nor does Wilber argue that Rogers'

involvement in the booking constituted participation in Wilber's

arrest or, for that matter, that Rogers failed to act "in good

faith and in the performance of his duties" in undertaking the

booking. Id. Thus, as to this claim against Rogers, we see no

basis for overturning the grant of summary judgment.

With respect to the grant of summary judgment to Rogers

on the claim of false imprisonment, though, we do not affirm, just

as we do not affirm the grant of summary judgment to Kinsella and

Curtis with respect to the claims of false imprisonment, false

arrest, or malicious prosecution. Unlike the MCRA and intentional

infliction of emotional distress claims just addressed, the merits

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of the summary judgment ruling as to these claims -- for false

imprisonment as to Rogers and for false arrest, false imprisonment,

and malicious prosecution as to Kinsella and Curtis -- necessarily

turn on issues that are "best resolved in state court," Desjardins,

777 F.3d at 46 (quoting Camelio v. Am. Fed'n, 137 F.3d 666, 672

(1st Cir. 1998)).

As to the claims of false arrest and false imprisonment

against Kinsella and Curtis, the merits of the summary judgment

ruling depend on whether a jury could reasonably find that the

officers lacked probable cause to arrest Wilber. That question,

however, necessarily turns in part on a judgment about an issue

that the parties sharply disagree about and that our resolution of

the one federal claim did not require us to address -- the right

definition of the scope of each of the state law offenses that the

defendants have identified as providing a basis for the arrest.

And, with respect to the claim of false imprisonment against

Rogers, yet another contested point of state law presents itself

-- namely, whether, as Wilber contends, Rogers' role in "booking"

Wilber precludes Rogers from claiming the protection conferred by

Mass. Gen. Laws. ch. 272 § 53.

Finally, as to the claims of malicious prosecution

lodged against Kinsella and Curtis, contested state law issues

arise once again. For, even if we could bypass the probable cause

inquiry, we still would then have to decide whether a jury

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reasonably could find that the officers had the improper purpose

required to trigger liability for that tort.

Thus, rather than attempt, with respect to these issues,

to resolve the parties' disagreements about how best to construe

state law in light of the record, we follow our approach in

Desjardins. We thus vacate the grant of summary judgment to all

three officers as to Wilber's claim for false imprisonment, as

well as to Wilber's claims for false arrest and malicious

prosecution to Kinsella and Curtis, and remand these claims to

state court.

IV.

We affirm the entry of summary judgment as to Officers

Kinsella, Curtis, and Rogers on the intentional infliction of

emotional distress claim and the claims under 42 U.S.C. § 1983 and

Mass. Gen. Laws ch. 12, § 11I, and as to Officer Rogers on the

malicious prosecution and false arrest claims. We vacate the entry

of summary judgment as to Officers Kinsella and Curtis on the

malicious prosecution, false arrest, and false imprisonment

claims, and as to Officer Rogers on the false imprisonment claim,

and we remand with instructions that the District Court remand

those claims to state court. Each party shall bear their own

costs.

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