United States Court of Appeals For the First Circuit

No. 20-1800

MICHAEL FINAMORE,

Plaintiff, Appellant,

v.

LT. NICK L. MIGLIONICO, in his individual and official capacity, ET AL.,

Defendants, Appellees.

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

[Hon. David H. Hennessy, U.S. Magistrate Judge]

Before

Howard, Chief Judge, Selya and Barron, Circuit Judges.

Bart W. Heemskerk and Heemskerk Business Litigation PLLC on brief for appellant. Gerard T. Donnelly, Matthew G. Lindberg, and Hassett & Donnelly, P.C. on brief for appellees.

September 28, 2021 SELYA, Circuit Judge. Plaintiff-appellant Michael

Finamore, convinced that the town of Douglas, Massachusetts (the

Town), was infringing upon his property rights by allowing the

public to traverse a public way that cut through his property,

tried to enforce his perceived rights through self-help. A ruckus

ensued, and police officers arrested the appellant for disturbing

the peace and disorderly conduct. After the criminal charges were

dismissed, the appellant sued a number of municipal actors

(including the police officers). The district court entered

summary judgment for the defendants, and the appellant assigns

error. Concluding that the entry of summary judgment was

appropriate, we affirm.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case. The appellant owns real estate (the Property), located in

the Town. Part of Cedar Street, which has been used as a public

way for many years, cuts through the Property. After commissioning

a survey, the appellant came to believe that the portion of Cedar

Street that crossed the Property belonged to him. Consequently,

he sought to rescind public access across it.

The Town was unpersuaded. It continued to maintain that

the disputed portion of the street was a public way. Litigation

followed, and the state superior court found in favor of the Town

and declared all of Cedar Street to be a public way. On appeal,

- 2 - though, the judgment was vacated and a new trial ordered. See

Hunter v. Town of Douglas, No. 14-1531,

, at *2

(Mass. App. Ct. July 24, 2015). The appellant claims — albeit

without elaboration — that he thought the appeals court decision

meant that he could rescind public access through the disputed

section of Cedar Street pending the new trial.

On October 13, 2015, three members of the Town's police

force — Lt. Nick Miglionico, Officer Anthony Yannino, and Officer

Mark Kaminski (collectively, the Officers) — responded to a report

that the appellant had unilaterally closed off the street. By the

time the Officers arrived on the scene, the appellant had stretched

an orange plastic snowfence across the northernmost boundary of

the disputed portion of Cedar Street and was about to erect a

similar barrier across the southernmost boundary. Two other Town

hierarchs, Town Administrator Mike Guzinski and Highway

Superintendent John Furno (collectively, the Municipal Officials),

also came to the scene. Lt. Miglionico told the appellant to

remove the fence and warned him that he would be arrested if he

did not do so. The appellant refused, stating that he would rather

go to jail.

In the meantime, a crowd had gathered, people were

yelling and screaming, and the appellant was bombarded with demands

to open the street. After conferring with the Municipal Officials

and confirming that the appellant did not have the authority to

- 3 - close Cedar Street, Lt. Miglionico again ordered the appellant to

remove the fence. When the appellant still balked, Lt. Miglionico

arrested him and directed Highway Superintendent Furno to take

down the fence.

The Officers transported the appellant to the police

station, booked him on charges of disturbing the peace and

disorderly conduct, and forced him to surrender his personal items

(including his prescription medication). Although the appellant

was detained in a holding cell for nearly five hours, he claims to

have no memory of anything past the first fifteen minutes. The

appellant asserts that this memory loss was due to a cardiac event,

which he says resulted in a loss of consciousness. There is no

evidence in the record, though, of any contemporaneous medical

treatment.

Officer Yannino filed a criminal complaint against the

appellant for disturbing the peace and disorderly conduct. See

(b). The state district court made

a finding of probable cause, but the charges were ultimately

dropped — one was dismissed and the other nolle prossed.

That was not the end of the matter. The appellant later

repaired to the United States District Court for the District of

Massachusetts and sued the Officers and the Municipal Officials.

Invoking

and the district court's supplemental

jurisdiction, see

, he brought a total of nine

- 4 - claims. The parties agreed to proceed before a magistrate judge.

See

(c); Fed. R. Civ. P. 73(b). Following pretrial

discovery, the district court granted summary judgment in favor of

all defendants on all counts. See Finamore v. Miglionico, No. 17-

40122,

, at *1 (D. Mass. June 24, 2020). This

timely appeal ensued.

II. ANALYSIS

Before us, the appellant challenges the entry of summary

judgment on six of the original nine claims. The six claims are

a false arrest claim under section 1983 and the Fourth Amendment;

a claim under the Massachusetts Civil Rights Act (MCRA), see Mass.

Gen. Laws ch. 12, § 11I, for false arrest; a combined common-law

claim for false arrest and false imprisonment; a common-law claim

for malicious prosecution; a common-law claim for civil

conspiracy; and a common-law claim for intentional infliction of

emotional distress.

We review de novo the district court's entry of summary

judgment. See Shurtleff v. City of Boston,

(1st

Cir. 2021). In conducting that review, we take the record in the

light most flattering to the nonmovant (here, the appellant) and

draw all reasonable inferences to his behoof. See Houlton

Citizens' Coal. v. Town of Houlton,

(1st Cir.

1999). But this plaintiff-friendly approach has well-defined

limits: one such limitation dictates that "motions for summary

- 5 - judgment must be decided on the record as it stands, not on

litigants' visions of what the facts might some day reveal."

Maldonado-Denis v. Castillo-Rodriguez,

(1st Cir.

1994).

When all is said and done, "[s]ummary judgment is

appropriate when there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Arabian Support & Servs. Co. v. Textron Sys. Corp.,

(1st Cir. 2019). For this purpose, a genuine issue exists if

"a reasonable jury could resolve the point in favor of the

nonmoving party." McCarthy v. Nw. Airlines, Inc.,

(1st Cir. 1995) (quoting United States v. One Parcel of Real

Prop.,

(1st Cir. 1992)). By the same token, a

fact is material only if "it possesses the capacity, if determined

as the nonmovant wishes, to alter the outcome of the lawsuit under

the applicable legal tenets." Roche v. John Hancock Mut. Life

Ins. Co.,

(1st Cir. 1996).

A. Section 1983 and MCRA Claims.

We begin with the appellant's counterpart claims under

section 1983 and the MCRA. "The two essential elements of an

action under [section 1983] are . . . (i) that the conduct

complained of has been committed under color of state law, and

(ii) that this conduct worked a denial of rights secured by the

Constitution or laws of the United States." Chongris v. Bd. of

- 6 - Appeals of Andover,

(1st Cir. 1987). As the

appellant's section 1983 claim is premised upon an alleged

violation of the Fourth Amendment — an allegation that the Officers

wrongfully arrested him — the appellant must show that the Officers

lacked probable cause to effect the arrest. See Roche,

; see also Mann v. Cannon,

(1st Cir. 1984) ("To

prove a section 1983 false arrest claim, . . . [the appellant]

must show at minimum that the arresting officers acted without

probable cause.").

A similar set of requirements underpins the appellant's

statutory state-law claim. Under the MCRA, see Mass. Gen. Laws

ch. 12, § 11I, the appellant must show that "his exercise or

enjoyment of rights secured by the Constitution or laws of either

the United States or of the Commonwealth" was either "interfered

with, or attempted to be interfered with" through "threats,

intimidation or coercion." Bally v. Northeastern Univ.,

(Mass. 1989) (quoting Mass. Gen. Laws ch. 12, § 11H);

see Meuser v. Federal Express Corp.,

(1st Cir.

2009). Because the appellant premises his MCRA claim on an

allegation of false arrest, he must establish that the Officers

lacked probable cause to arrest him in order to prevail on that

claim. See Santiago v. Fenton,

(1st Cir. 1989).

As the absence of probable cause represents the sine qua

non of the appellant's claims under both section 1983 and the MCRA,

- 7 - we start — and end — with that element, turning directly to the

issue of whether the Officers acted with probable cause when they

arrested the appellant for disturbing the peace and disorderly

conduct. In the context of warrantless arrests, the standard for

probable cause is coextensive under federal and Massachusetts law.

See id.; Coblyn v. Kennedy's, Inc.,

(Mass.

1971). The existence vel non of probable cause "depends . . . upon

whether, at the moment the arrest was made, . . . the facts and

circumstances within [the Officers'] knowledge and of which they

had reasonably trustworthy information were sufficient to warrant

a prudent [person] in believing that the [appellant] had committed

or was committing an offense." Beck v. Ohio,

(1964); see United States v. Figueroa,

(1st

Cir. 1987). "The preferred approach" to an inquiry into the

existence of probable cause "is pragmatic; it focuses on the

'factual and practical considerations of everyday life on which

reasonable and prudent [persons], not legal technicians, act.'"

Roche,

(quoting Illinois v. Gates,

(1983)). The applicable standard "does not require the

[O]fficers' conclusion to be ironclad, or even highly probable.

Their conclusion that probable cause exist[ed] need only be

reasonable." United States v. Winchenbach,

(1st Cir. 1999); see Commonwealth v. Ilya I.,

, 1052

(Mass. 2015).

- 8 - In the case at hand, the Officers arrested the appellant

for two different crimes: disturbing the peace and disorderly

conduct. Although a finding of probable cause for just one of the

two crimes would render the appellant's arrest lawful, see United

States v. Bizier,

(1st Cir. 1997), we review the

probable-cause finding as to each offense.

In Massachusetts, whether a person committed the crime

of disturbing the peace is evaluated under a bifurcated approach.

See Commonwealth v. Orlando,

(Mass. 1977).

That approach "proscribes activities which, first, most people

would find to be unreasonably disruptive, and second, did in fact

infringe someone's right to be undisturbed."

Here, the record

makes manifest that the appellant unilaterally cordoned off a

portion of Cedar Street with a plastic fence, wholly obstructing

the flow of traffic along a public way. The fence plainly

disturbed the public's right to pass along Cedar Street. And we

need look no further than the boisterous gathering of local

residents at the fence, provoked by the appellant's intransigence,

to discern that many people found the appellant's makeshift

blockade unreasonably disruptive. Taken together with the

Officers' contemporaneous discovery that the appellant was

responsible for erecting the fence, these circumstances provided

an ample basis for the Officers reasonably to conclude that the

appellant had disturbed the peace.

- 9 - In an effort to blunt the force of this reasoning, the

appellant argues that the Officers simply could have instructed

the Municipal Officials to remove the fence without placing the

appellant under arrest. For that reason, the appellant says, his

arrest was unnecessary, and the lack of necessity raises a genuine

issue of material fact concerning the validity of the arrest. This

argument lacks force. When probable cause for an arrest exists,

the arresting officer need not balance the "costs and benefits" of

making the arrest or determine that the arrest is "in some sense

necessary." Atwater v. City of Lago Vista,

(2001). As the Officers had probable cause to believe that the

appellant committed "even a very minor criminal offense" in their

presence, they could place the appellant under arrest for that

offense without transgressing the Fourth Amendment.

The appellant's arrest for disorderly conduct was also

appropriate. In Massachusetts, an individual commits the crime of

disorderly conduct when he, "with purpose to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk

thereof, . . . creates a hazardous or physically offensive

condition by any [non-expressive conduct] which serves no

legitimate purpose of the actor." Iacobucci v. Boulter,

(1st Cir. 1999) (quoting Alegata v. Commonwealth,

(Mass. 1967)); see Commonwealth v. A Juvenile,

(Mass. 1975). The appellant's blockade created just

- 10 - such a hazardous condition. The record shows, beyond hope of

contradiction, that the appellant placed plastic fencing across a

particularly dangerous portion of Cedar Street (a locus at which

several prior accidents had occurred). Even the appellant agreed

(in his deposition testimony) that his blockade "[a]bsolutely"

posed a traffic hazard. Viewed together with the appellant's

adamant refusal to remove the fence when twice directed to do so,

these circumstances provided a sufficient basis for the Officers

reasonably to conclude that the appellant had recklessly created

a risk to the public by putting the blockade into place.

Nor does the record support the appellant's argument

that his placement of the blockade served a legitimate purpose.

Even if the appellant subjectively believed that the ongoing

litigation over the disputed portion of Cedar Street gave him the

right to erect the barrier, the Appeals Court's decision preserving

the status quo dictates — as an objective matter — that he did

not. See Hunter,

, at *1-2 (vacating judgment

declaring Cedar Street a public way and remanding to Superior Court

for new trial, but not declaring the appellant the rightful owner

of the disputed portion of the street). Aware of the ongoing

litigation, the Officers conferred with the Municipal Officials

prior to the arrest and confirmed that the appellant had no

authority to cordon off the disputed portion of Cedar Street. As

a general matter, government officials involved in an

- 11 - investigation are presumed to be reliable sources of credible

information for the purpose of developing probable cause. See

Commonwealth v. Zorn,

(Mass. App. Ct. 2006)

(citing United States v. Ventresca,

(1965)). It

follows that, on the facts available to them at the time, the

Officers reasonably could have believed — when they placed the

appellant under arrest — that the appellant lacked a legitimate

purpose for cordoning off Cedar Street.

To say more would be to paint the lily. Viewing the

record in the light most hospitable to the appellant, we discern

no genuine issue as to any material fact concerning the existence

of probable cause. We hold, therefore, that the Officers had

probable cause to arrest the appellant for disturbing the peace

and disorderly conduct. Consequently, the district court did not

err in entering summary judgment against the appellant with respect

to his claims under section 1983 and the MCRA.

B. False Arrest and False Imprisonment Claim.

Next, we turn to the appellant's combined common-law

claim for false arrest and false imprisonment. The two torts are

joined at the hip because, in Massachusetts, "[f]alse arrest is a

species of the tort of false imprisonment." Nuon v. City of

Lowell,

(D. Mass. 2011) (citing Wallace

v. Kato,

(2007)). To be liable for false

imprisonment, an individual must be shown, inter alia, to have

- 12 - unlawfully confined a person, either directly or indirectly. See

Walker v. Femino,

(D. Mass. 2018); see

also Noel v. Town of Plymouth,

(D. Mass.

1995). Ordinarily, a police officer may be held liable for false

imprisonment "'unless the . . . officer had a legal justification'

for the restraint." Barbosa v. Conlon,

(D. Mass. 2013) (quoting Sietins v. Joseph,

(D. Mass. 2003)). "Such justification exists if the officer

had probable cause to arrest the suspect." Sietins,

. So, too, the existence of probable cause to arrest

vitiates a standalone false arrest claim. See Cabot v. Lewis,

(D. Mass. 2017).

Viewed against this backdrop, the appellant's combined

common-law claim for false arrest and false imprisonment need not

detain us. Here, the Officers had probable cause to arrest the

appellant for both disturbing the peace and disorderly conduct.

See supra Part II(A). It follows inexorably — as night follows

day — that the Officers were legally justified in placing the

appellant under arrest and confining him while they prepared a

criminal complaint. See Cabot,

; Sietins,

. The district court, therefore, did not

err in granting summary judgment on the appellant's combined

common-law claim for false arrest and false imprisonment.

- 13 - C. Malicious Prosecution Claim.

This brings us to the appellant's common-law claim for

malicious prosecution against the Officers. "To prevail on a

malicious prosecution claim under Massachusetts law, [the

appellant] must prove that the [Officers] (i) instituted criminal

proceedings (ii) with malice and (iii) without probable cause, and

(iv) that the proceedings were terminated in the [appellant]'s

favor." Limone v. United States,

(1st Cir. 2009);

see Correllas v. Viveiros,

(Mass. 1991).

Viewing the record in the light most favorable to the

appellant, he plainly has satisfied the first and fourth elements

of the test. He has failed, however, to establish either malice

or a lack of probable cause.

Stripping away rhetorical flourishes, the appellant has

offered no probative evidence to show that the Officers acted with

malice when they effected his arrest: he merely suggests that

malice may be inferred under Massachusetts law when a police

officer makes an arrest without probable cause. See Chervin v.

Travelers Ins. Co.,

(Mass. 2006). That is

true as far as it goes — but it does not take the appellant very

far. Because we have found no genuine issue of material fact

concerning the existence of probable cause, see supra Part II(A),

there is no foundation from which an inference of malice could

arise. Accordingly, the appellant has failed as a matter of law

- 14 - to make out a claim for malicious prosecution, and the district

court did not err in entering summary judgment on this claim.

D. Civil Conspiracy Claim.

We next address the appellant's claim that the Officers

and the Municipal Officials engaged in a civil conspiracy to bring

about his false arrest. We agree with the appellant that, in

Massachusetts, a claimant can bring a civil conspiracy claim under

a concerted action theory, "whereby liability is imposed upon one

individual for the tort of another." Thomas v. Harrington,

(1st Cir. 2018) (quoting Kurker v. Hill,

(Mass. App. Ct. 1998)). But such a claim demands proof

of an "underlying tort," and "[t]he conspiracy consists in agreeing

to, or assisting in, [that] underlying tort." Taylor v. Am.

Chemistry Council,

(1st. Cir. 2009).

Here, the appellant identifies false arrest as the

underlying tort. He contends that the Officers and the Municipal

Officials acted collectively to bring about his false arrest. In

support, however, he notes only that the Officers conversed with

the Municipal Officials regarding the legality of his slapdash

blockade. Even if we assume that such a brief consultation could

establish the concerted action required to prove the existence of

a conspiracy — a matter on which we take no view — our finding

that the Officers had probable cause to arrest the appellant, see

supra Part II(A), dooms the appellant's insistence that his arrest

- 15 - was unlawful. Without an underlying tort, there can be no

actionable civil conspiracy. See Taylor,

. We hold,

therefore, that the district court did not err in entering summary

judgment against the appellant on his civil conspiracy claim.

E. Intentional Infliction of Emotional Distress Claim.

The appellant's final claim is for intentional

infliction of emotional distress. In order to establish this

claim, the appellant must show that the defendants, "by extreme

and outrageous conduct and without privilege," subjected him to

"severe emotional distress." Limone,

(quoting Agis

v. Howard Johnson Co.,

(Mass. 1976)).

Specifically, the appellant had to show:

(1) that the [defendants] intended to inflict emotional distress or that [they] knew or should have known that emotional distress was the likely result of [their] conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized community; (3) that the actions of the [defendants] were the cause of the [appellant's] distress; and (4) that the emotional distress sustained by the [appellant] was severe and of a nature that no reasonable [person] could be expected to endure it.

at 94 (quoting Agis,

).

The appellant asserts that a reasonable jury could find

that the Officers' decision to leave him in a holding cell without

his cardiac medication amounted to extreme and outrageous conduct.

Yet, the appellant's time in the holding cell was limited, and the

- 16 - record contains no evidence that any cardiac incident occurred.

To cinch the matter — aside from lamenting that the fallout from

his arrest has left him "unable to earn a living on a piece of

property that [he] purchased" — the appellant has adduced no

evidence that he suffered any severe emotional distress as a result

of what he self-servingly styles as his "ordeal." And during his

deposition testimony, the appellant went to considerable lengths

to debunk the possible utility of consulting a mental health

professional for his alleged emotional upset.

To fill this void in the record, the appellant argues

that "he should be permitted at trial to testify to his distress

which is foresseable [sic]" from his arrest. This argument is

unavailing. We have stated before — and today reaffirm — that

"[b]rash conjecture, coupled with earnest hope that something

concrete will eventually materialize, is insufficient to block

summary judgment." Dow v. United Bhd. of Carpenters & Joiners of

Am.,

(1st Cir. 1993). Given the dearth of probative

evidence, we conclude that the district court did not err in

entering summary judgment against the appellant on his common-law

claim for intentional infliction of emotional distress.

III. CONCLUSION

We need go no further. By improvidently blocking a

public way, the appellant managed to block his path to a successful

prosecution of his claims against the Officers and the Municipal

- 17 - Officials. For the reasons elucidated above, the judgment of the

district court is

Affirmed.

- 18 -