Arias v. US Government et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert Arias,
Plaintiff
v. 	Case No. 17-cv-516-SM
Opinion No. 2021 DNH 011
Michael Bernard; Noah Herzon;
Ty Kucharski; Christopher Day;
Adalberto Garcia; and Juan Infante,
Defendants
O R D E R
On September 8, 2016, Robert Arias was arrested in an
operation that involved the six named defendants, as well as
about a dozen other federal law enforcement officers. 	He claims
the arresting officers used excessive force against him (count
1) and says those officers who witnessed his violent arrest
failed to protect him from the excessive force used by others
(count 2). 	He seeks monetary damages for physical and emotional
injuries he claims to have suffered. 	See generally Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). 1
1 	Although several of the named defendants are police
officers employed by the cities of Nashua and Manchester, New
Hampshire, they appear to have been “detailed” to work on a
federal drug interdiction task force. 	Accordingly, the parties
have assumed that, for purposes of this suit, all defendants are
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Defendants move for summary judgment, asserting that there
are no genuinely disputed material facts and saying they are
entitled to judgment as a matter of law. 	Alternatively, they
say they are entitled to the protections afforded by qualified
immunity. 	For the reasons discussed, that motion is granted as
to two defendants, but denied as to all remaining defendants.
Standard of Review
When ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party’s favor.” 	Block Island Fishing, Inc. v. Rogers,
844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). 	Summary
judgment is appropriate when the record reveals “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	In this
context, a factual dispute “is ‘genuine’ if the evidence of
record permits a rational factfinder to resolve it in favor of
either party, and ‘material’ if its existence or nonexistence
has the potential to change the outcome of the suit.” 	Rando v.
Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
properly treated as federal agents. 	See generally 5 U.S.C. §§
3374(a)(2) and (c)(2).
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Background
During the summer of 2016, members of the High Intensive
Drug Trafficking Area Task Force (“HIDTA”), with the assistance
of an undercover Drug Enforcement Administration operative, made
several controlled purchases of fentanyl-laced heroin from the
plaintiff, Robert Arias.
On September 8, 2016, the six named defendants, along with
10 to 15 other law enforcement officers, were assigned to aid in
Arias’s arrest at the Rockingham Mall, in Salem, New Hampshire.
As Arias approached the mall, the decision was made to arrest
him in the parking area, before he could exit his vehicle. 	The
car was driven by Arias’s wife, Carmen Jose. 	Arias was seated
in the front passenger seat. 	Once Ms. Jose pulled into a
parking spot, several law enforcement vehicles blocked the car
in. 	Jose briefly tried to back up, but realized she was unable
to do so. 	She then put the car in park, as numerous officers,
many in plain clothes and with weapons drawn, surrounded the
vehicle.
All agree that Arias and Jose complied with the officers’
commands and did not resist. 	Jose was removed from the vehicle
without incident. 	As officers attempted to remove Arias from
the vehicle, they quickly realized they could not do so because
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he was wearing a seatbelt. 	One of the officers then cut Arias’s
seatbelt and he was dragged from the car, taken to the ground,
and handcuffed. 	According to the defendants (some of whom
actively participated in the arrest, while others merely
observed it), the arrest was quick, routine, non-violent, and
unremarkable. 	Because Arias offered no resistance, all
defendants join in saying that very little force was needed to
extract him from the car, take him to the ground, secure his
arms and legs, and restrain him in handcuffs. 	In support of
their view that Arias suffered no significant injuries,
defendants point to Arias’s booking photos, which do not appear
to show any visible injuries to his face or head, and reveal
only a small mark or abrasion on the right side of his neck.
See Declaration of Michael Bernard, Exhibit 1 (document no. 43-
3) at 10-15.
Arias and his wife tell a markedly different story. 	They
agree that Arias offered no resistance and complied with the
officers’ commands. 	But, they say the officers used excessive
force in extracting Arias from the vehicle, taking him to the
ground, and restraining him on the ground. 	According to Arias’s
sworn testimony:
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When we arrived in the parking lot and stopped, two
men, in plain clothes approached the car and had guns
drawn.
As they approached the car, I put my hands up. 	The
windows of the car were not tinted, so the men
approaching the car could see that I was putting up my
hands.
I did nothing throughout the Arrest to resist being
arrested.
The two men pulled me from the car, mainly by my neck.
It was done very forcibly. 	At the same time, they cut
my seatbelt with a knife and threw me to the ground.
I then noticed that there were many men/officers
around me, the majority were in plain clothes and many
had their guns drawn. 	They were yelling something
like “don’t move.”
I was yelling at Carmen, who was pregnant at the time,
to “leave” in Spanish. 	I was worried about her and
her pregnancy.
After I was on the ground, there were approximately 7
men/officers on top of me. 	I was not resisting arrest
at all. 	They were mainly on top of my legs and it
hurt my knee. 	There was an intense pressure on my leg
that caused me to scream in pain.
The men/officers again banged my head to the ground,
mainly the right side of my head.
I don’t remember where they touched me, I just have an
intense memory of the pain in my leg.
I lost consciousness and was so afraid that I urinated
in my pants.
Again, I was not resisting arrest at all, just yelling
out in pain and trying to protect Carmen by not having
her see what was happening. 	I may have been moving
because of the pain that they were causing.
They put handcuffs on me after I was on the ground.
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After the handcuffs were on me, the men/officers
stepped on me, on my left leg, while I was on the
ground. I think it was not necessary as I was already
in handcuffs. 	They did this multiple times.
Affidavit of Robert Arias (document no. 48-2), at paras. 7-19.
See also Arias’s Answers to Interrogatories (document no. 43-10)
at 3 (“Two agents came out [and] my wife put the car in reverse.
The two Agents who exited Macy’s ordered us to stop the car. 	My
wife then came to a complete stop and put the car in park. 	One
of the Agents then opened the passenger door, [and they]
identified themselves as ‘DEA Agents.’ 	One of the Agents used
excessive force to take me out [of] the vehicle, by pulling me
out by [my] neck when my seatbelt was still on. 	One of the
Agents then cut off my seatbelt. 	They slammed me to the ground
[and] several more Agents came. 	The[n] one of the Agents cut
off my waist belt on my pants. 	I pissed my pants out of fear
for my life as the Agents continuously assaulted me. 	I thought
my life was over.”).
Arias’s wife, Carmen Jose, recounts a similar version of
the relevant events and describes the arresting officers as
having used more force against Arias than was objectively
reasonable under the circumstances. 2
2 	See generally Graham v. Connor, 490 U.S. 386, 397 (1989)
(noting that the inquiry into whether law enforcement officers
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I am the wife of Robert Arias, who was arrested on
September 8, 2016 (“Arrest”) and filed a complaint
against the U.S. Government on or about October 2017
(17-CV-516-SM) (“Lawsuit”) related to his Arrest. 	I
have not seen the Complaint, but my husband has spoken
of it to me.
My husband, Robert, does not speak or understand
English. 	He came to the United States from the
Dominican Republic in 2015.
I was present on September 8, 2016 when Robert was
arrested in the parking lot of the Rockingham Mall in
Salem, New Hampshire.
At the time of the Arrest, I was 3 months pregnant and
it was a delicate pregnancy because of my health.
I drove up to the Rockingham Mall parking lot, and
Robert was in the passenger seat. 	Some suspicious men
approached the car. 	Then a vehicle blocked in our
car. 	I was in the driver’s seat at the time and
Robert was in the passenger seat.
As the men/officers approached me, I told them that I
was pregnant and not to touch me.
I saw much of what happened to Robert before I was led
away by a man/officer to a car with tinted windows.
At no time during the Arrest did Robert or I resist
being arrested. 	We were both very concerned about my
pregnancy.
I saw the men (who were not in uniform) approach our
car with guns drawn. 	They forcibly grabbed Robert out
of the car and cut the seatbelt. 	In addition, they
cut the belt to his pants.
employed excessive force in the context of an arrest or
investigatory stop is an objective one, focused on whether the
officers’ conduct was “objectively reasonable in light of the
facts and circumstances confronting them.”)
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I saw them punch Robert on the face when they took him
out of the car. 	They used a choke hold to get Robert
out of the car and then slam him to the ground.
When they slammed Robert to the ground, I believe he
hit his head because he screamed.
I remember saying “What are you guys doing?” as I
could not believe why they were using such force on
Robert.
I remember Robert saying to me “Tell them not to hurt
me like that” in Spanish.
At this point there were many, many men around, enough
to fill a chapel. 	Most of them were in regular
clothes, not police uniforms.
I saw that many men/officers were on top of Robert and
started to step on Robert’s leg and stomach. 	At one
point, I saw at least 5 men/officers, who were on top
of Robert, mainly on his leg and knee.
At this point they also started kicking Robert, mainly
in the ribs and I believe it was on the right side.
I saw them pick up Robert and slam him to the ground.
They used such force with Robert that he urinated on
himself.
Throughout this whole time, the officers kept their
guns drawn even though neither Robert nor I were
resisting arrest at all. 	Our main focus was on my
pregnancy. 	Some of the men/officers put their guns
away when Robert was on the ground.
Throughout the Arrest, Robert was screaming at me to
“leave” in Spanish as he was concerned about the
pregnancy. 	I believe that Robert was concerned that
watching him getting beat up would cause me distress
and could affect the pregnancy.
I addition, I remember Robert screaming in pain at
times and shouting “my knee, my knee” a number of
times. 	It was very distressing to hear Robert in such
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pain and not be able to do anything. 	Robert does not
speak English, so all these words were in Spanish.
* * *
I saw Robert again that evening at the County jail.
His face was swollen (his eye and lips on the right
side) and he had dark marks. 	In addition, he showed
me his knee which was swollen. 	He complained of the
hurt. 	The swollenness seemed to be getting worse with
time.
Affidavit of Carmen Jose (document no. 48-3) at paras. 2-22, 25.
Corroborating the accounts of Arias and Jose are medical
records showing that Arias sought treatment (in the jail) in
November of 2016 for an injury to his knee. 	Subsequently, in
March of 2017, he saw the jail’s nurse, who reported that Arias
said he was unable to bend his left knee. 	Strafford County
House of Corrections Medical Records (document no. 51-2) at 10.
Three days later, X-rays of Arias’s left hip and left knee were
ordered “due to chronic pain.” 	Id. 	The physician’s assistant
reported, “Assessment: Chronic hip and knee pain over the last
six months. . .. 	I suspect patient has significant degenerative
changes. 	Likely will need orthopedic management.” 	Id.
Jail records reveal that Arias again complained of “hip and
knee pain” in September of 2017. 	Id. at 9 (“Seen in unit for ss
c/o hip pain. 	CO used as interpreter. 	IM states he was seen at
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seacoast ortho about 5 months ago and was given a shot for the
pain. 	It helped for a few days but then the pain returned.”).
That same day, Arias was seen by a physician, who prescribed
Ibuprofen, 800 mg, twice a day for 90 days. 	In June of 2018,
Arias was again seen for “chronic hip and knee pain” and the
nurse noted “marked [osteoarthritis] L knee; mild OA L hip.”
Id. at 7.
More recently, in January of 2019, and again in March of
2019, Arias was seen by jail staff for complaints of chronic
pain in his left knee and hip. 	One medical note states that a
physician reviewed Arias’s medical records and entered the
following order: “OK to MRI left hip to ‘assess lateral hip for
chronic bursitis changes and possible gluteal tear.’” 	Id. at 5.
Another note suggests that Arias was directed to have an
“outside consult” with an orthopedic specialist. 	Id.
Discussion
Two defendants – Juan Infante and Adalberto Garcia – move
for summary judgment on grounds that they were not present for,
nor did they even witness, Arias’s arrest. 	Rather, those
officers have testified that they remained inside the Rockingham
Mall during the entire course of that arrest. 	See Affidavit of
Juan Infante (document no. 43-6); Affidavit of Adalberto Garcia
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(document no. 43-7). 	Arias does not dispute those statements.
Although his complaint identifies those officers as having
participated in his arrest, his subsequent answers to
interrogatories reveal that he cannot identify Infante or Garcia
as having been in the group who allegedly assaulted him (or who
allegedly stood by while he was being assaulted). 	See Answer to
Interrogatory No. 2 (document no. 43-10) at 4. 	See generally
Gray v. Cummings, 917 F.3d 1, 5–6 (1st Cir. 2019) (collecting
cases and discussing the situation in which a plaintiff has
little or no memory of the events underpinning his or her
claims).
Because there is no evidence that Infante or Garcia
participated in or witnessed Arias’s arrest (and there is sworn
testimony that they did not), defendants Infante and Garcia
cannot be held liable for using excessive force or for failing
to intervene and stop other officers who were allegedly using
excessive force.
Each of the remaining defendants, however, either actively
participated in Arias’s arrest, or was present for and
witnessed, his arrest. 	As to those defendants, it is plain that
there are genuinely disputed material facts that preclude entry
of judgment as a matter of law in their favor. 	If a jury were
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to credit the accounts of Arias and his wife, it could plausibly
find for Arias on one or more of his Bivens claims against those
remaining defendants – that is, a jury could sustainably
conclude that one or more defendants violated Arias’s Fourth
Amendment rights by employing objectively unreasonable force to
take him into custody, and after he was in custody.
Finally, given the state of the factual record at this
juncture, the doctrine of qualified immunity affords defendants
no protection. 	As presently developed, the record suggests
that: Arias had no history of violence; officers did not have
reason to suspect that he would react violently to their efforts
to take him into custody; officers had no reason to suspect that
Arias might be armed; Arias was not armed; Arias was being
arrested for a non-violent crime; and Arias cooperated
completely with the arresting officers and offered no
resistance. 	Under such circumstances, the level of force used
against Arias – as alleged by Arias and his wife – would
obviously run afoul of the Fourth Amendment’s reasonableness
requirement. 	See, e.g., Raiche v. Pietroski, 623 F.3d 30, 39
(1st Cir. 2010) (“We need not decide whether there are
materially similar cases of controlling authority or a consensus
of persuasive authority existing at the time of the incident
which would have clearly established the law. 	This is because
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[the officer’s] excessive conduct was such an obvious violation
of the Fourth Amendment’s general prohibition on unreasonable
force that a reasonable officer would not have required prior
case law on point to be on notice that his conduct was
unlawful.”) (citations and internal punctuation omitted).
Conclusion
Defendants’ motion for summary judgment (document no. 43)
is granted in part and denied in part. 	As to defendants Juan
Infante and Adalberto Garcia, that motion is granted. 	As to all
remaining defendants, however, the existence of genuinely
disputed material facts precludes judgment as a matter of law.
Their motion for summary judgment is, therefore, necessarily
denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
January 19, 2021
cc: 	Robert Arias, pro se
Jeremy David Eggleton, Esq.
Michael T. McCormack, AUSA
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