240 F.Supp.2d 121

United States District Court, D. Massachusetts.
Michelle ACETO, Plaintiff,

v.

David W. KACHAJIAN, and Paul Lavoie, Defendants.

No. CIV.A. 01-11420-PBS.
Jan. 24, 2003.
Arrestee brought civil rights and state tort suit against police officers for use of excessive force in handcuffing her behind her back despite being informed that behind-the-back handcuffing would exacerbate her preexisting shoulder separation. Police officers moved for summary judgment on ground of qualified immunity. The District Court, Saris, J., held that: (1) officers were not entitled to qualified immunity if they handcuffed cooperative arrestee behind her back despite being informed of her injury, and (2) issue of unjustified force also precluded summary judgment on assault and battery claim under Massachusetts law.
Motion denied.
*122 James Karathanasis, Hyannis, MA, John B. Rest, Leavis & Rest, P.C., Boston, MA, Maureen K. Flaherty, Law Offices of Maureen K. Flaherty, Kingston, MA, for Plaintiff.
Stephen C. Pfaff, Douglas I. Louison, Merrick, Louison & Costello, Boston, MA, for Defendant.
MEMORANDUM AND ORDER


SARIS, District Judge.
INTRODUCTION

Plaintiff Michelle Aceto filed suit against defendants David W. Kachajian and Paul Lavoie, both police officers employed by the Town of Barnstable, Massachusetts, bringing claims under 42 U.S.C. § 1983 for unconstitutionally excessive force (Counts I and III) and claims for assault and battery (Counts II and IV). Aceto alleges that on May 23, 2000, defendants injured her while arresting her for a thirteen-year-old traffic violation, by refusing to handcuff her with her arms in front of her body after she informed them that she had an injured shoulder.
Defendants now move for summary judgment on the ground that, as a matter of law, defendants did not use excessive force or commit assault and battery, or in the alternative, that they are entitled to qualified immunity. For the reasons stated below, the Court DENIES the motion for summary judgment.
STANDARD OF REVIEW

"Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir.1995) (quoting Fed.R.Civ.P. 56(c)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
"Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who 'may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.' " Barbour, 63 F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "There must be 'sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.' " Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505) (citations and footnote in Anderson omitted).
The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour, 63 F.3d at 36.
FACTS

Except where otherwise noted, there is no genuine issue as to any of the following facts:
On May 23, 2000, two Barnstable police officers (not the defendants) arrested Aceto, a small woman, at her residence on an outstanding warrant that had been issued in 1987 by the Framingham District Court. The warrant resulted from the non-payment of a speeding citation thirteen years *123 earlier. Aceto claims she paid the citation two or three days after receiving the citation. The two officers complied with Aceto's request to be handcuffed with her arms in front of her body after she informed them that she had a separated shoulder due to a hockey injury.
After being processed at the Barnstable Police Station and waiting in a jail cell for approximately forty-five minutes, defendant Kachajian brought Aceto to the booking area and informed her that he was going to handcuff her for transport to the Barnstable District Court. At this point, Aceto told Kachajian that she could not be handcuffed with her arms behind her back because of her separated shoulder. Kachajian returned Aceto to the cell and told her that he needed to check for documentation regarding her injured shoulder.
Kachajian returned approximately four minutes later and told Aceto that her arms were going to be put behind her back whether she liked it or not, because there was no documentation regarding her injured shoulder. Aceto began crying, and told Kachajian that putting her arms behind her back would aggravate an existing injury. She also provided him with the names of her two doctors and her physical therapist.
Kachajian escorted Aceto back to the booking area where defendant Lavoie was present. Aceto explained to Lavoie that she had just finished therapy for a separated shoulder and again provided the names of her two doctors and physical therapist. She did not, however, provide him with the telephone numbers. Lavoie told her that she was not going to tell the officers what to do; she responded that she was not going to let them hurt her. There is nothing in the record indicating that defendants made any effort to verify Aceto's shoulder injury with her physicians or physical therapist, though this incident occurred during working hours.
Following this exchange, defendants started to handcuff Aceto with her hands behind her back.FN1 Lavoie wrenched Aceto's left arm and twisted it around and down, while Kachajian took her right hand and brought it around behind her back. During the handcuffing, something popped, and Aceto felt intense pain in her left arm. When she cried out in pain, Lavoie lowered her left arm to her hip while Kachajian continued handcuffing her. Lavoie then instructed Kachajian to loosen the handcuffs because they were too tight and cutting into her.
FN1. Defendants maintain that they handcuffed Aceto with her arms in front of her body, but for the purpose of summary judgment, they adopt Aceto's allegation that they handcuffed her with her arms behind her back.
They finished handcuffing Aceto with her right hand almost completely over to the left side of her body, because her left arm would not move back. Despite asking for immediate medical attention, she remained in handcuffs for approximately forty-five minutes. Aceto was later diagnosed with having a herniated disc in her neck that resulted from the handcuffing.
Barnstable Police Department policy provides that "[a]ll prisoners shall be handcuffed prior to being placed into the transport vehicle, except when transporting handicapped, injured or sick prisoners, where the use of restraining devices is at the discretion of the transporting officer(s)," and that "[p]risoners will be handcuffed with their hands behind their back, palms facing outward, unless there are extenuating circumstances such as injury."
LEGAL ANALYSIS

I. Section 1983 Claims

A. Overview of Qualified Immunity

"Qualified immunity protects public officials from section 1983 civil liability so long *124 as they 'acted reasonably under settled law in the circumstances.' " Veilleux v. Perschau, 101 F.3d 1, 2 (1st Cir.1996) (per curiam) (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). The doctrine "protect[s] officers from the sometimes 'hazy border between excessive and acceptable force' " and "ensure[s] that before they are subjected to suit, officers are on notice that their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir.2000)).
The Supreme Court has set out a two-part test for determining whether an official is entitled to qualified immunity. See Saucier, 533 U.S. at 200-09, 121 S.Ct. 2151 (holding that while police officer may have used unconstitutionally excessive force in gratuitously shoving an arrestee, officer was subject to qualified immunity in light of precedent that not every push and shove constitutes excessive force). First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201, 121 S.Ct. 2151. If so, the second step requires examining "whether the right was clearly established." Id.
B. Excessive Force

The threshold issue is whether a routine behind-the-back handcuffing can constitute excessive force in violation of the Fourth Amendment when a non-threatening, non-flight-risk, cooperative arrestee for a minor crime (like a traffic violation) informs the police that she has an injury to her shoulder, and requests that she be handcuffed with her hands in front.

The Fourth Amendment provides the right to be free from excessive force in the course of arrest. See Graham v. Connor, 490 U.S. 386, 394-395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "Excessive force claims arising out of arrests are analyzed under the Fourth Amendment's protection against unreasonable seizures and the plaintiff 'must demonstrate that the police defendant's actions were not objectively reasonable, viewed in light of the facts and circumstances confronting him and without regard to his underlying intent or motivation.' " Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir.2002) ( quoting Alexis v. McDonald's Rests. of Mass., 67 F.3d 341, 352 (1st Cir.1995)). The factors that the court must consider include "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [wa]s actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865.