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Burkholder v. Kyhos

United States District Court, D. Rhode Island

February 8, 2016



RONALD R. LAGUEUX, Senior U.S. District Court.

This matter is before the Court on Defendants’ Motion for Summary Judgment. The parties have not identified any significant disputed facts, so the Court has rendered its decision based on the parties’ briefs and the thorough record developed during discovery.[1] Defendants’ Request for Oral Argument is denied. Defendants are three police officers from the town of Westerly, Rhode Island. Plaintiff, Dennis Burkholder, alleges that he was wrongfully arrested and prosecuted by Defendants when they charged him with trespassing in connection with an incident at the Westerly Home Depot store in October 2013. Because probable cause existed for Plaintiff’s arrest, the Court grants summary judgment in Defendants’ favor.


Plaintiff was a frequent shopper at his local Home Depot because of his work as a contractor. However, on August 18, 2013, his business at the store was personal. He had previously bought a washing machine at another store, and now he wanted to buy a matching dryer at Home Depot. Because of the lapse of time between the two purchases, Plaintiff was unable to get a dryer with a white paint finish that was a precise match with his washer. The issue had dragged on for several weeks and, apparently, one unsatisfactory dryer had already been sent to his home. When Plaintiff visited the store on August 18, he decided to take the matter up with the store manager, Scarlett Driscoll. Plaintiff acknowledges that, during this conversation, he became angry, raised his voice, and accused Driscoll of dishonesty while she stood on the store floor, about a couple of feet in front of him.

When the conversation concluded, Plaintiff continued to shop while, unbeknownst to him, Driscoll called the police. An officer, Michael Garafola, arrived, approached Plaintiff in the check-out line and escorted him from the store. In an affidavit, Garafola states that he told Plaintiff that he could not return to the Home Depot for two years. Garafola states further that, on his return to the police station, he entered “a no trespass concerning Mr. Burkholder and the Home Depot into the IMC database.” In his Complaint, Plaintiff asserts that he was never told that Home Depot or Driscoll was “issuing or requesting that a No Trespass Notice or Order issue against him whether pursuant to R.I.G.L. § 11-44-26 or any other statute.” In his deposition, Plaintiff stated the officer who asked him to leave the store told him that he would have to get permission from Home Depot’s District Manager if he wanted to return.

Whatever his understanding, Plaintiff was careful to avoid going inside the Home Depot after August 18 despite the fact that he needed to purchase supplies there for his contracting work. On an almost daily basis, Plaintiff dropped his son off at the store to make the purchases, and waited in the parking lot to pick him up. On October 1, 2013, Plaintiff sent his son into Home Depot and then pulled his truck up to the store’s exit in order to help his son load some heavy items. Plaintiff left the parking lot without incident - however not before he was spotted and identified by a store employee who reported back to Driscoll. According to Plaintiff, someone from the store called the Westerly police, and Defendants Kyhos and Gingerella came to the store and took statements from employees. Kyhos and Gingerella reported back to their sergeant, Defendant Turano, and an arrest warrant for Willful Trespass was issued against Plaintiff.

Plaintiff received a call from the police department, asking him to turn himself in. Plaintiff reported to the police station on October 2, 2013, and was charged with Willful Trespass under Rhode Island General Laws § 11-44-26. Plaintiff was booked and processed in approximately one hour, then he was released on his own recognizance. Plaintiff’s case went to trial in the Rhode Island District Court in Washington County. The trial lasted “many days” or “a few days.” The charges were ultimately dismissed on March 26, 2014.

The Complaint

Plaintiff’s present complaint sounds in two counts. The first count is for false arrest and false imprisonment. Plaintiff alleges that no probable cause existed for his arrest because “no valid ‘No Trespass’ order or notice was in effect or otherwise issued” to him. Moreover, Plaintiff asserts that R.I. Gen. Laws § 11-44-26 cannot “provide a legitimate, constitutional basis” for probable cause because the statute is “overly broad and impermissibly vague.” The Complaint states:

It impermissibly deputizes private actors with the police powers of the state by allowing them to independently deem entries onto property illegal acts. Such delegation of particular police powers is unconstitutional when accompanied by the vague directive of ‘legitimacy.’

Because Plaintiff’s arrest was not based on probable cause, the Complaint continues, the arrest was unconstitutional and violates Rhode Island’s law against discrimination, R.I. Gen. Laws § 42- 112-1, and the federal statute barring state and local officials from depriving others of their civil rights under color of state law, 42 U.S.C. § 1983.

In Count II, Plaintiff asserts that he was the victim of malicious prosecution and abuse of process. Plaintiff was never properly issued “a Notice Not to Trespass.” When Defendants issued the arrest warrant which led to Plaintiff’s prosecution, they lacked probable cause to believe that he “had committed, was committing, and/or was about to commit a crime.” Because Plaintiff’s arrest lacked a legitimate purpose, Defendants committed an abuse of process and maliciously prosecuted him, causing damages including the costs of defending the District court lawsuit.

Standard of Review

When ruling on a motion for summary judgment, the court must look to the record and view all facts and inferences therefrom in the light most favorable to the nonmoving party. Continental Cas. Co. v, Canadian Univ. Ins. Co., 924 F.2d 370, 373 (1st Cir. 1991). Once this is done, Rule 56(a) requires that summary judgment be granted if there is no ...

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