United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith Chief Judge.
the Court is Magistrate Judge Patricia A. Sullivan's
Report and Recommendation (“R&R”) (ECF No.
45), which recommends that Defendants' Motion for Summary
Judgment (ECF No. 14) be granted in part and denied in part.
In light of the R&R's split recommendations (with
aspects adverse to both parties), Plaintiff and Defendants
both objected (ECF Nos. 50, 51). Additionally Plaintiff has
filed a Motion to Vacate the Magistrate Judge's Order
Denying his Motion In Limine (“Motion to Vacate”)
(ECF No. 56). After careful review of the R&R and the
relevant papers, the Court accepts the R&R, over both
parties' objections, and denies Plaintiff's Motion to
outset, Plaintiff concedes that summary judgment should enter
for Defendants the Town of Coventry, David Nelson, and Randy
Polion. (Pl.'s Mem. in Supp. Obj. to R. & R.
(“Pl.'s Mem.”) 3, ECF No. 52.) He also admits
that summary judgment should enter for Defendants with
respect to his state law claims for larceny, computer theft,
tampering, conspiracy, and extortion. (Id.) Thus,
these need no discussion. The remainder of Plaintiff's
objection proffers several attacks on the R&R. None has
Plaintiff spends nearly twenty-seven pages of his
forty-one-page memorandum challenging Magistrate Judge
Sullivan's denial of his Motion in Limine (ECF No. 20) -
a denial that occurred by text order on June 13, 2018.
Putting aside the merits of Plaintiff's motion in limine,
the window of time for Plaintiff to challenge Magistrate
Judge Sullivan's order on this nondispositive motion has
passed. See DRI LR Cv 72 (“An objection to an order or
other ruling by a magistrate judge in a nondispositive matter
. . . shall be filed and served within 14 days after such
order or ruling is served.”). Plaintiff had until June
27, 2018, to object to Magistrate Judge Sullivan's denial
of his motion in limine. He waited until a month later on
July 27, 2018, raising the issue in his supporting memorandum
to his objection to the R&R. (See Pl.'s Mem. in Supp.
of Obj. to R&R, ECF No. 52). He belatedly raised the
issue again in his Motion to Vacate filed on August 14, 2018.
(See Pl.'s Mot. to Vacate Order on Mot. in Lim., ECF No.
56). As such, Plaintiff has waived the issue, and Magistrate
Judge Sullivan's text order of June 13, 2018, stands.
Moreover, this Court reviews a magistrate judge's order
on a nondispositive motion, like a motion in limine, for
clear error. See Fed.R.Civ.P. 72(a). Even if Plaintiff had
timely and properly objected, Magistrate Judge Sullivan's
text order is neither “clearly erroneous” or
“contrary to law.” See id.
Plaintiff objects to the recommendation that summary judgment
enter as to Plaintiff's federal and state law false
arrest claims. (Pl.'s Mem. 27.) He suggests that
Magistrate Judge Sullivan erred because the R&R
“failed to recount and closely consider all relevant
evidence he adduced showing his seizure/de facto arrest, and
made an erroneous determination of law that he was not
seized/arrested de facto because he simply could have left
the scene, at the price of surrendering his cellphone to
Defendants.” (Id. at 28.) Plaintiff also
complains about the R&R's alternative holding that
disposes of his claims on the basis of qualified immunity.
(Id. at 33.)
arguments fail. At the outset, Plaintiff grounds his
challenge to the R&R on a flawed premise that a seizure
always constitutes a de facto arrest. (See Id. 28-29
(using “seizure” interchangeably with “de
facto arrest”).) Not so. The law, of course, also
contemplates “lesser seizures generally known as
investigative or Terry stops, which require a lesser
reasonable suspicion.” United States v. Young,
105 F.3d 1, 6 (1st Cir. 1997). However, if a seizure occurred
here at all, how the Court classifies it (whether a Terry
stop or otherwise) is of no moment because the record
supports a finding of probable cause.
officers can justifiably rely upon the credible complaint by
a victim to support a finding of probable cause.”
Forest v. Pawtucket Police Dep't, 377 F.3d 52,
57 (1st Cir. 2004). Indeed, the First Circuit has
Victims' complaints are a prime source of investigatory
information for police officers. In the absence of
circumstances that would raise a reasonably prudent
officer's antennae, there is no requirement that the
officer corroborate every aspect of every complaint with
extrinsic information. The uncorroborated testimony of a
victim or other percipient witness, standing alone,
can support a finding of probable cause. Acosta v. Ames
Dep't Stores, Inc., 386 F.3d 5, 10 (1st Cir. 2004).
And, in this context, the critical point in time for
inquiring what officers knew is “the moment of the
arrest.” Fernández-Salicrup v.
Figueroa-Sancha, 790 F.3d 312, 324 (1st Cir. 2015)
(quoting Roche v. John Hancock Mut. Life Ins. Co.,
81 F.3d 249, 254 (1st Cir. 1996)). Here, it is not disputed
that Officer Poccia arrived at the scene in response to the
employer's complaint that Plaintiff had attempted to keep
company property after being fired. (R. & R. 5 ECF No.
45; Exh. In Supp. of Mem. In Opp. To Def's Mot. Summ. J.
5, ECF No. 33.) This suffices to support probable cause.
there was no probable cause, the R&R nevertheless
correctly recommends that the officers' alleged conduct
is covered by qualified immunity. Officers “are
entitled to qualified immunity [if] they ‘reasonably
but mistakenly conclude[d] that probable cause [wa]s
present.'” District of Columbia v. Wesby,
138 S.Ct. 577, 591 (2018) (second and third alterations in
original)(quoting Anderson v. Creighton, 483 U.S.
635, 641 (1987)). The Court is satisfied, then, that “a
reasonable police officer under the same or similar
circumstances, ”-e.g., responding to a complaint that
an employee was refusing to give back company property-would
not have “understood the challenged act or omission to
contravene the discerned constitutional right.”
Burke v. Town of Walpole, 405 F.3d 66, 77 (1st Cir.
2005) (quoting Limone v. Condon, 372 F.3d 39, 44
(1st Cir. 2004)).
objection asks the Court to reject the R&R's
recommendation that summary judgment be denied as to
Plaintiff's 42 U.S.C. § 1983 claim for the alleged
seizure of the cell phone. First, Defendants contest
Magistrate Judge Sullivan's conclusion that
Plaintiff's cell phone seizure claim is not time barred.
(Defs.' Mem. in Supp. Obj. to R. & R.
(“Defs.' Mem.”) 2-4. ECF No. 51; see also R.
& R. 17-18.) Defendants also challenge Magistrate Judge
Sullivan's recommendation that trial-worthy factual
issues remain, both with respect to the merits of the Fourth
Amendment claim and qualified immunity. (Defs.' Mem. at
argument that Plaintiff's claim is time-barred attempts
to inject a heightened standard onto Rule 15's
relation-back requirement. (Id. at 1-5.) As
Magistrate Judge Sullivan noted, an amended pleading
“relates back” when “the amendment asserts
a claim or defense that arose out of the conduct,
transaction, or occurrence set out - or attempted to be set
out - in the original pleading.” (R. & R. 18, ECF
No. 45 (quoting Fed.R.Civ.P. 15(c)(1)(B))). Courts have
afforded Rule 15(c) a liberal thrust. See, e.g., Clipper
Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc.,
690 F.2d 1240, 1259 n.29 (9th Cir. 1982) (“We are
mindful that the relation back doctrine of Rule 15(c) is to
be liberally applied.”); Tri-Ex Enter. Inc. v.
Morgan Guar. Trust Co. of New York, 586 F.Supp. 930, 932
(S.D.N.Y. 1984) (describing Rule 15(c) as a “very
liberal standard”). And the Supreme Court has
interpreted the Rule to “depend on the existence of a
common core of operative facts uniting the original and newly
asserted claims.” Mayle v. Felix, 545 U.S.
644, 646 (2005). “A common core of operative facts
exists if ‘the opposing party has had fair notice of
the general fact situation and legal theory upon which the
amending party proceeds.'” Tenon v.
Dreibelbis, 190 F.Supp.3d 412, 416 (M.D. Pa. 2016)
(quoting Bensel v. Allied Pilots Ass'n, 387 F.3d
298, 310 (3d Cir. 2004)). “Thus, new claims will relate
back if they ‘restate the original claim with greater
particularity or amplify the factual circumstances
surrounding the pertinent conduct, transaction or occurrence
in the preceding complaint.'” Id. (quoting
Bensel, 387 F.3d at 310).
Plaintiff's First Amended Complaint to his original
Complaint makes clear that Plaintiff does precisely that.
(Compare Compl. ¶¶ 5-8 (citing 42 U.S.C. §
1983 and noting that Plaintiff “was commanded that if
he did not immediately relinquish his phone to the agent of
the Coventry Police Department that he would be arrested and
his cell phone confiscated anyway”), with First Am.
Compl. ¶¶ 9, 31(a) (alleging
“[u]nconstitutional search and seizure (false arrest
and seizure of private cellphone data...)”)). Plaintiff
satisfies the relation-back requirement. And Defendants
“had fair notice of the general fact situation and
legal theory upon which the amending party proceeds.”
Bensel, 387 F.3d at 310. Because Plaintiff “merely
expounds upon and further details the factual scenario and .
. . claims that were roughly sketched in [his] original
Complaint, ” Defendants' statute-of-limitations
argument fails. Id.
Court next considers Defendants' objection to Magistrate
Judge Sullivan's recommendation that “there are
trial worthy issues of fact regarding the nature of
plaintiff's interest in the cell phone and reasonableness
of the alleged seizure.” (Defs.' Mem. 5 (citing R.
& R. 14).) Defendants try to undercut the evidence that
creates a factual dispute as to who owns the cell phone,
while injecting a hypothetical scenario which asks the Court
to draw inferences for Defendants. Finally, while conceding
“there may be a factual dispute as to plaintiff's
interest in the cell phone created by ...