FEDERAL DISTRICT COURT

District of Massachusetts

Eastern Division

John E. Boyle, Pro Se Litigant Federal District Court Docket No.

Plaintiff 09CV11435-WGY

V.

Barnstable Police Department

Town of Barnstable

John Klimm, Town Manager

Chief John Finnegan (retired)

Chief Paul McDonald

Detective Sgt. John F. Murphy

Sgt. Arthur Caido

Sgt. Richard Morse

Defendants

OPPOSITION TO DEFENSE MOTION FOR

SUMMARY JUDGEMENT
 Now comes Plaintiff in opposition, pursuant to Mass Rule of Civil

Procedure 56, and moves that Defendants request for Summary

Judgment be denied. Plaintiff states that there are genuine issues of

material fact and is entitled to be heard as a matter of

Law.

I. STATEMENT OF THE CASE

Plaintiff concurs with Defendants Statement of Case, except that:

“Chief Paul McDonald and Sgt. John Murphy are never mentioned by

name in the Plaintiff’s complaint.”

Count 4, Paragraph 62 of the complaint reads, “Defendants Town of

Barnstable, Klimm, Finnegan, McDonald, Murphy, Caido and Morse are

liable under the doctrine of respondent superior or partnership by

estoppels.”

Count 1 says “all defendants” and mentions no

Individual name specifically.

Count 2 says “all defendants” and mentions no

Individual name specifically.

Count 3 says “all defendants” and mentions no

Individual name specifically.

Count 5 says “all defendants” and mentions no

Individual name specifically.

Count 6 says “all defendants” and mentions no

Individual name specifically.

Count 7 says “all defendants” and mentions no

individual name specifically

Count 8 says “all defendants” and mentions no

Individual name specifically.

II. STATEMENT OF FACTS

Plaintiff agrees with Defendant’s Statement of Facts except for:

Page 3 line 10 thru 12. “Mr. Boyle, as owner of King’s Coach, did not

obtain any permits in the year 2006 to operate a livery business in the

Town of Barnstable nor did he ever have his motor vehicles inspected as

required by the Town.” This statement is false as we will show every

requirement of the Town was met according to the rules and regulations of
Taxicab and Livery by the Town of Barnstable and it was the defendants,
not the plaintiff, who violated the statutory requirements.

Pg. 3, p. 3, l.3. “Mr. Boyle was granted a grace period until January 20,
2006.” Should read “Boyle was granted an extension by the Towns license
examiner of his 2005 livery license, as he had a pending buyer with no
closing date, to at least 6/20/06.”

Pg. 3 last line & Pg. 4 first line, “Again, Mr. Boyle was notified on
June 5, 2006 that if he did not complete the inspection and the 2006
permits would not be issued.” First, the above referenced letter reads
nothing of the sort, it reads “If permits are not renewed by June 20th, this
office will consider your permits to be null and void” In other words, the
Town of Barnstable considered King’s Coach permits to be valid until at
least June 20, 2006 (see exhibit 1). Granting extensions is a right according
to the rules of the Town of Barnstable Taxicabs and Livery section 11 (see
exhibit 2) VEHICLE FOR HIRE LICENSE EXPIRATION “…Such
license shall be valid for such term as the examiner shall determine.”
Also, within the regulations is an explicit requirement of written
notification, before license termination. Section 10 of the above referenced
rules states “A license holder shall be notified in writing…” King’s Coach
was never notified as the letter was sent to an address that King’s Coach
had not occupied for over four years.(see exhibit 3) The Town had sent
many other letters to his correct address.

Pg.4, p.2,l,2. “As a result, Mr. Boyle was not authorized to operate his
livery business in the Town of Barnstable as he was not permitted in the
year 2006. Should read “Mr. Boyle and King’s Coach were authorized and
permitted to operate a limousine company according to the rules and
regulations of the Town of Barnstable.”

Pg. 4, p.4, l,6. “Mr. Boyle’s vehicle for hire license or licenses was
never revoked or suspended because he never received a permit or license
for hire for a vehicle for hire license in the year 2006” Should read, Mr.
Boyle’s 2005 Livery license was properly extended by section 11 of the
rules governing such licenses, and, further, was revoked by applying the
same laws. (see exhibit 4)

Pg.5, p.2,l,3. “Mr. Boyle pled guilty to both of these offenses and the
matter was continued without a finding” Should read, Boyle never pled
guilty; instead both matters were continued without a finding.

Pg.5, p,3.l,3. “and for this he pled guilty”. Boyle never pled guilty to any
allegation or process.

Pg.5, p3,l,13. “..further he alleges that with regard to this matter the
defendants conspired against him regarding an “evidentiary magistrates
hearing.” Should read:” In Town employee Sgt. Caiado’s deposition, he
says on page 17 line 4 to 6 “ My role is I present the police reports and
facts to a magistrate, and they, as a magistrate, determine if there is
probable cause to charge somebody.” (see exhibit 5) Sgt. Caiado never
attempted to obtain the facts, and he certainly never tried to obtain a
magistrates hearing. The Town employee operated outside the normal
scope of his job in the hope of causing harm to another. It should be further
noted in a report by Department of Industrial accidents investigator Greens,
Sgt. Ciaido is quoted as saying “… Do not drop anything on this John
Boyle as everyone in the department knows all about him and his going
on’s”

Pg.6,p.2,l.8, “And her credit card was charged on the same day” Carmel
Fischer’s card was charged in May of 2006 for a ride in August of 2006.
(see exhibit 6)

Pg.6, p.2,l,16, “As a result, Sgt. Caiado of the Barnstable Police filed an
application for complaint relying on Ms. Fischer representations, and the
court issued a complaint for charges of limousine license violations and
larceny over $250.00”. As we will show, probable cause never existed.
Further, the facts will show for the August 16th ride King’s Coach and John
Boyle were both being charged for failure to have a license and larceny.
But the town contends the license was not in effect on 8/16/06. So if Boyle
does the run, he is guilty of a License violation, but if he doesn’t, fulfill the
obligation he is guilty of larceny. How can he be guilty of both? It’s a legal
catch 22. One recalls Sgt. Caiado’s words “Do not drop anything on this
John Boyle. Everyone in the department knows all about him and his going
ons.”

Pg.7.p.1,l.2, “It should be noted that the plaintiff plead to sufficient facts
on the violation of the town ordinance violation and the larceny charges
were dismissed”. Should read: “Boyle was advised by defense counsel that
upon paying a court fee the matter would go away; as good as not
guilty.”Can anyone really ever plead sufficient facts? Isn’t that heresy upon
a future event? Facts, maybe. Sufficient? Never.

Pg.7,p,2.l,4. “Further the applications for criminal complaints to issue were

based on statements from civilians that establish the elements of larceny.”
Should read :“Applications for criminal complaints should be based on the
facts of ALL parties, not just one side, and as Sgt. Caiado has sworn in his
deposition “all the facts are presented to a magistrate.” Again this
procedure wasn’t followed because of the bias and conspiracy of Town
employees and as they acted outside the color of law and scope in their
charges against John Boyle.

Pg.7,p,3.l,2. Except for two other charges “…Mr. Boyle was charged with
four counts.” Simply untrue. Mr. Boyle has suffered investigations and
charges from the Department of Industrial Accidents, the Attorney
General, Division of Unemployment, Department of Transportation,
Registry of Motor Vehicles, as well as multiple legal assaults by the
Barnstable Police, which far exceeds the claim of four additional tickets.
(See exhibit 7). It should be noted Boyle was found not “guilty” in all
except a few minor motor vehicle citations.

Pg8,p3,l,1. “In his complaint Mr. Boyle alleges Sgt. Caiado, Finnegan and
Klimm conspired against him. None of these individuals discussed or
conspired with each other against Mr. Boyle.” Should read “Mr. Boyle
alleges all defendants conspired against him”, and, further, memorandum
should state that defendants “allege” they didn’t conspire against Boyle. It
is our intention to show at trial it would be impossible for them to function
as they claim without communicating as they claim to have not done.

PLAINTIFF ADDS TO STATEMENT OF FACTS

Defense states in motion for Summary Judgment “In order to operate a

livery business in the Town of Barnstable (TOB) one must obtain permits

that are issued on an annual basis. In order to obtain a permit the business

must have its vehicles inspected and must pay the requisite fees. (See
exhibit 8).

In 2006 plaintiff was attempting to both move company to another

location and entertaining an active buyer (See exhibit 9) either of which

would negate the need to renew license. He contacted the examiner at

regulatory services and they granted a grace period they allege to be at

least through January 20, 2006. Defense fails to produce documentation

supporting such date other then memory of Tom Geiler via affidavit (it

should be noted Plaintiff wanted to depose Mr. Geiler and court

disallowed) Plaintiff had never been notified of such date. Further it should

be noted in a letter (See exhibit 10) dated June 5th they grant extension to

June 20th 2006 “If permits are not renewed by 6/20/06 then we will

consider your permits to be null and void” within those words they

exercise their right of extension, in section 11 (See exhibit 11) of their

rules governing taxicab and livery, and set expiration for any license, any

date. Further, it should be added, this notice of 6/5 was sent to an address

that Plaintiff had not been occupying for over four years (See exhibit 12)

He never received notice of nullification. The TOB Rules and Regulations

for livery (See exhibit 13) in article 1. Says the “Examiner is the chief of

Police or any person or persons the chief designated by the chief of

police”. Per proclamation Mr. Geiler says he is the licensing agent and or
examiner as called for by the rules. Within the rules, specifically section

11. VEHICLE FOR HIRE LICENSE EXPIRATION It states “…such

license shall be valid for such term as the examiner shall determine.” In the

case of Mr. Boyle and King’s Coach they extended his license through

June 20, 2006 at a minimum and failed to properly notify of their intent to

suspend or revoke as called for in section 10. Plaintiff conducted himself in

a normal and prudent business like manner after being reassured no less

than three times his personal meetings with Mr. Geiler (Geiler and Boyle

had a personal as well as professional relationship) of which license was

mentioned. This clearly was on Plaintiffs mind. Further it states “Such

License”, not Licenses, singular is which they speak and within the

dealings with the town the Examiner or Licensing agent granted an

extension per their testimony through January 20 and further through letter

dated June 5, 2006 to June 20, 2006. The revocation of 6/20 of was never

delivered in proper form which is called for by section 10 “A license

holder shall be notified in writing…” This never happened. Notice went to

an address that hadn’t been used in over four years and the Defendants had

Plaintiffs proper address and had contacted Boyle on many other occasions

at that address. In deposition chief Finnegan, head examiner for TOB

states, Pg 76 lines 18 to 22 (See exhibit 14) the question is the letter says
 the grace period is through June 20, we can agree to that, right? And Chief

Finnegan head examiner says “Yeah we can agree to that” And if you want

to use the term grace so be it, but again section 11 states that expiration is

the purview of examiner of an individual license.

III. Argument

A. Defendants Murphy and McDonald must not be dismissed .

By order of this court, Plaintiff was not allowed to depose Murphy or McDonald.
If we had been allowed to conduct discovery as we sought, a strong supervisory
relationship to other named defendants and a direct willful participation in the
allegations made in the complaint would have been established. Murphy and
McDonald are both mentioned by name and are included in all counts of the
complaint.

B. Town must not be released as an entity

The Town functions as a corporation within the Commonwealth. Therefore, it
could only be that this “person” of law is both liable and responsible for the actions
of its employees. It is to the TOB that all defendants work and act on behalf of.
C. The defendants maliciously prosecuted plaintiff

The criminal charges brought against Boyle, “municipal code”. violation,

and“operating without a Livery license” were “continued without a finding” Boyle

never uttered the words “guilty”. Defense states that criminal proceedings must

meet the test as described in Limone v. US., 579 F. 3d 79, 89 (1st Cir. 2009);

Nieves v. Mc Sweeney, 241 F. 3d 46, 53 (1st Cir. 2001), whereby malicious

prosecution requires the plaintiff to establish that (1)the defendant instituted

criminal proceedings (2) with malice and (3) without probable cause and (4) that

proceedings were terminated in defendants favor.

Caido and Morse played an active part in the initiation and proceedings of the
criminal Complaints, and signed the criminal Complaints against Boyle. Further,
they were supervised by other defendants.

The charges were not based upon probable cause; that is, the state of the facts in
the mind of the prosecutor would not lead a man of ordinary caution and prudence
to believe, or entertain an honest or strong suspicion that Boyle was guilty. Further
one need only look to the reported words of Sgt Caiado; “Don’t drop anything on
this Boyle, everyone in the department knows all about him and his going ons”

Defendants had a duty to ascertain whether there was reasonable and probable
cause for a prosecution, to wit, to learn whether Boyle had purposely deprived
subject individuals of their monies or whether it was carried out in the normal
course of business. Further many additional reservations, and credit cards charged,
were made prior to notice of licensing matter.
 The criminal proceeding terminated in favor of Boyle when the court dismissed all
charges after a hearing to dismiss..

Defendants Town of Barnstable, Klimm, Finnegan, Mc Donald, Murphy, Caido

and Morse are liable under the doctrine of respondent superior or partnership by
estoppels.

It was the policy of King’s Coach that a credit card is charged upon making the

reservation. The fact that both Carmel Fischer and Richard Fischer (Verling) made

reservations and were charged, and the service was not performed does not rise to

the level of larceny. Carmel Fischer sent a letter (See exhibit 15). She states a

travel agent made the reservation on 5/22/06 for 8/16 and 8/20. The card was

charged 5/22, and the Town put King’s Coach out of business on, according to

them, June 20, 2006. Yet they charge plaintiff with Larceny on 8/18 and 8/20. This

is the letter defense counsel refers to when she says defendants used reasonable

methods of deduction. Line 2 reads “Reservations were made 5/22”. It should be

noted that a reasonably similar fact pattern exists for the other Fischer (Verling).

Sgt. Ciaido’s deposition, on page 17 line 4 to 6 states, “ My role is I present the

police reports and facts to a magistrate, and they, as a magistrate, determine if there

is probable cause to charge somebody.” But it doesn’t seem as though Sgt. Ciaido

or Morse followed their duty as sworn court officers but instead sought to unduly

influence a criminal proceeding. The fact that the defendants can not establish that

they had probable cause to believe that Boyle intended to commit larceny is further
proof of their malicious intent. For probable cause to exist, there must be “such a

state of facts in the mind of defendant as would lead a person of ordinary caution

and prudence to believe, or entertain an honest or strong suspicion, that the

plaintiff has committed a crime” Bendarz v. Bendarz 27 mass App Ct. 668, 542

N.E. 2d 300, 302 (Mass App. Ct. 1989) Guiterrez v. Mass Bay Transport Authority

437 Mass 396, 772 N.E. 2d 552 562 (Mass 2002). Yes, a Mrs. Fischer and a Mr.

Fischer (Verling) may believe a crime has been committed, but two seasoned

police prosecutors could easily have determined that no crime was committed

simply by investigating the facts. And the fact that a Magistrate’s hearing was

bypassed, who more than likely would have concluded that no crime had been

committed, shows complicity, conspiracy and malicious intent.

D. The defendants are liable for abuse of process

Defendants maliciously used a "legal process `to accomplish some ulterior purpose
for which it was not designed or intended, or which was not the legitimate purpose
of the particular process employed.'"

Defendants knew that the complaints initiated were groundless and made
misrepresentations to the court to gain a collateral advantage in further process or
to simply exact some ulterior effect upon plaintiff 

Defendants knew that the complaint initiated was groundless and made
misrepresentations for revenge upon Boyle for, but not limited to (a) Speaking
publicly against an investigation(b) Being the subject of libelous media coverage,
(c) Addressing Police officers in the same manner and effect in which they opted
to address Plaintiff, and(d) Political and personal reasons, to name but a few.

Defendants knew or should have known that the complaints were groundless but
still sought to use the process for an ulterior purpose. Defendants used the legal
process with the ulterior purpose, to wit, for personal or political vendettas and
published name recognition.

Abuse of process, in this instance, is a bottom up phenomenon, e.g., supervisors

become liable for the actions of their subordinates. Both Ciaido and Morse have

been shown through their respective actions to have used a sacred process in a

manner not reflective of its normal course, and of which bypassed normal process

in the hopes of an ulterior end. Remember Caiado’s deposition where he says on

page 17 line 4 to 6, “ My role is I present the police reports and facts to a

magistrate, and they, as a magistrate, determine if there is probable cause to charge

somebody.”Ciaido did not follow his sworn charge, not once, but twice. Morse as

well, in their departures from societal norms. Ciaido has shown himself to be

especially aggressive in his malicious abuse of process in the hopes of damages

against plaintiff. (See exhibit 17) Mr. Ciaido especially has become obsessed with

Mr. Boyle for reasons unknown. Though one can only conclude by the evidence

submitted that he has an agenda, and by his own proclamation, and the actions of

individual police officers, has established complicity by the whole Barnstable

Police Department. (See exhibit 18) I submit letters and citations issued by the

Barnstable Board of Health regarding an incident where a tenant of his assaulted an

electrician and destroyed property (See exhibit 19 (cd)) I phoned the Police which

took no action, other than to file complaints against me. Within that process they

had the Board of Health write two non criminal citations (See exhibit 20) and as

per instructions I requested a hearing before a magistrate. What I received back

was unbelievable to say the least. Sgt. Arthur Ciaido had taken those two non

criminal citations and elevated them to a criminal Magistrates show cause hearing

(See exhibit 21) A civil matter be elevated to a criminal proceeding without even

the benefit of process or failure to respond, neither of which occurred. Again, this

is but another example of many attempts by the Barnstable Police to abuse process

to exact revenge.

E. TORT, LIBEL AND SLANDER

Both the first and the second Cape Cod Times articles, were and concerning the
Plaintiff, and were inaccurate, incorrect, misrepresented, untrue, malicious, and
libelous. Defendants knew or should have known that Cape Cod Times had
intentionally misrepresented facts.

Defendants used the media Cape Cod Times with the ulterior purpose, to wit, for
personal political vendettas and public condemnation of Boyle.
Said articles, individually and collectively, have prejudiced Plaintiff Boyle in his
profession and business and or impute upon him an unfitness to conduct business.

Defendants intentionally and deliberately inflicted irreparable harm on Boyle by

maliciously prosecuting Boyle, or by abusing the lawful process by unlawful
purpose, or by violating Boyle’s constitutional rights, or by conspiring against
Boyle by publication of falsehoods that Defendants should have known to be false.

The old axiom “actions speak louder than words” is only part of the story. On July

21, 2006 the Cape Cod Times published (See exhibit 22) a scathing article

indicting Boyle and King’s Coach. Said article is the subject of current litigation.

Within the article is published the direct actions of Ciaido and Morse and by

extension his superiors of which they maliciously abused process by seeking

criminal complaints against Boyle for larceny and municipal code violations. If

they had not maliciously pursued Boyle by any means possible and with ulterior

motive, said article would have never been written, but because they did act in

such a improper manner, Boyle has been forever and irreparably harmed. As we

have shown, Defendants have operated with an ulterior and malicious purpose

throughout and because of Boyle’s standing in the community and propensity for

news coverage defendants knew such action on their behalf would result in
negative press and used said articles as another way to hurt Boyle by another

means.

F. THE CLAIM OF EMOTIONAL DISTRESS MUST STAND

The abuse of power and abuse of process exacted against John Boyle could only be

for one purpose, to inflict harm, And whereas it was not directly physical, it would

have to be emotional, which then becomes physical. We have established on

numerous counts and can establish on many more that the actions of BPD and

select individuals could only be construed as wanting to irreparably harm the

plaintiff and deny him his rights as guaranteed by the constitution. The means test

for such is;

1) That the actor intended to inflict emotional distress or he knew or should have

known that emotional distress was the likely result of his 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 defendant are the cause of plaintiffs distress; and

4) That the emotional distress sustained by the plaintiff was severe and of a nature

“that no reasonable man could be expected to endure it”.

Agus v. Howard Johnson Co, 371 Mass. 140, 355 N.E. 2d 315,318-319 (1976)
Defendants intentionally and deliberately inflicted emotional distress on Boyle by
maliciously prosecuting Boyle criminally, or by abusing the lawful process by
unlawful purpose, and or by violating Boyle’s constitutional rights, and or by
conspiring against Boyle. 

Defendants knew or should have known that emotional distress was the likely
result of their conduct. Because no reasonable man, let alone officer of the court,
could conclude that what was simply a failed business transaction could rise to the
level of criminal statue.

Defendants conduct was extreme and outrageous, beyond all possible bounds of
decency and utterly intolerable in a civilized community.

The actions of the Defendants were the cause of Boyle’s distress.

Boyle is a reasonable man.

The emotional distress, ridicule, scorn and ensuing physical maladies sustained by
Boyle was severe and of a nature that no reasonable man could be expected to
endure.
As a result of the Defendants' extreme and outrageous conduct, Plaintiff was, is,
and with a high degree of likelihood, will continue to be emotionally distressed and
irreparably harmed due to the intentional commission.
 As a result of the Defendants' extreme and outrageous conduct, Boyle has suffered
and will continue to suffer mental pain and anguish, severe emotional trauma,
embarrassment, and humiliation.

Defendant’s actions could conclude many different ways, but emotional distress is

part of each and every one. Boyle has testified under deposition that he went into
deep depression due to actions of defendants. Without doubt, defendant’s actions

met and exceeded the means test in Agus v. Johnson. We have already established

that Caiado and Morse should have known the charges they were filing had no

probable cause and no basis in law, but sought to avoid any and all information to

the contrary, which leads one to conclude they operated and conspired with tunnel

vision without regard for Boyle’s innocence, reputation or health. Police officers

are held to a higher standard, so we are taught and told. If this is true, then their

actions were “extreme and outrageous” “beyond all possible bounds of decency”,

and, further, “utterly intolerable in a civilized community” Boyle went into deep

depression and suffered scorn and ridicule “that no reasonable man could be

expected to endure it”

G. CIVIL CONSPIRACY MUST STAND

All the Defendants (a) had an object to be accomplished under state law; (b)had an
agreement on the object or course of action; (c) performed one or more acts to
deprive plaintiff of rights, privileges or immunities; and (d) caused Boyle damages
that were a direct result of those acts. 

In furtherance of their object, defendants did two or more overt acts against the
plaintiff. Those unlawful overt acts include, but are not limited to, the following:

A) Defendants knew or should have known that Cape Cod Times had intentionally
misrepresented facts, yet sought to prosecute based on a salacious and untrue
publication and subjected Boyle to lose his right to conduct commerce, both locally
and federally protected intra-state, Defendants further failed to stop and protect
Boyle from the rogue conspirators, both civilian and their government agents, who
sought to inflict harm and deprive him of liberties and free trade and maliciously
use process to deny his freedoms and liberty.

B) In concert with Cape Cod Times, who set the tone through sensational
journalism, defendants prosecuted on the grounds that Boyle stole the property of
another, and did not have proper licensure and sought to influence other process.
Yet defendants knew or should have known Boyle could not have stolen monies
as he simply was conducting himself in a normal course of business and hadn’t
violated any provision of license and regulations. The defendants agreed that the
object or course of action was to charge and maliciously prosecute him for crimes
they knew he did not commit and influence others to do same to stop his inter and
intra-state free trade. At certain times upwards 20% of plaintiffs work was out of
state.
 

Plaintiff suffered harm and damages that are a direct result of those acts. 

Defendant’s acted in such a way that clearly a conspiracy against plaintiff is clear

and obvious. From Mr. Ciaido stating “Don’t let anything go on this John Boyle

everybody in the department knows all about him and his goings ons” to denying

Boyle the right to conduct commerce intrastate to the filing of criminal complaints

without probable cause, to the elevation of civil process, to the level of criminal

without cause or process to influencing and obstructing justice. The sum total of

the actions of defendants was to file and charge Boyle with approximately thirty
criminal and civil charges of which Boyle successfully defended. In their motion

for summary judgment Defense says plaintiff’s malicious prosecution claim is

“garden variety”, and therefore must fail. Plaintiff contends that its garden is

specifically full of tomatoes, many of which are rotten, through no fault of our

own. Further, at a minimum, the actions of defendants denied plaintiff the right to

conduct commerce intra state, which meets the means test in Meehan v. Town of

Plymouth 167 F.3d 85,88 (1st Cir. 1999); Roche, 81 F 3d at 254.

H. The individual defendants are not entitled to qualified immunity

Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) speaks to qualified immunity for

government officials “from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known”. Plaintiff believes it has demonstrated that

the defendants, professional police officers, and their superiors, should have known

what they were doing was improper and not their normal course of conduct, which

speaks to conspiracy and ulterior motive. All of which meets and exceeds the

means test in Harlow.

Two questions must be addressed by the court in qualified immunity. First there

must be a right that is at issue which is “clearly established” and that a reasonable

official would understand that what he is doing violates that right. Anderson v.
Creighton 482 U.S. 635, 640 (1987). Next, the court must determine whether

defendants reasonably should have comprehended that their specific actions

transgressed those “clearly established” rights. Anderson at 752.

Plaintiff has established the transgressions and departures of defendants from

normally followed courses of action that any reasonable man would understand

their action violated the rights of plaintiff as evidenced by Defendants actions

which were outside the scope and color of their duties. In fact we maintain that

Defendants intended to violate rights of plaintiff in a personal, rather than

protected fashion. all of which says the defendants are not entitled to qualified

immunity as a matter of law.

I. FAILURE TO SUPERVISE MUST STAND

The actions of superiors and by extension their subordinates to properly supervise

defendants became a pattern and therefore custom or policy of employees of the

Town of Barnstable. Plaintiff reached out many times for corrective action and was

either ignored or rebuffed by individual employees. Plaintiff has shown multiple

instances of misconduct by the employees of the Town of Barnstable by either act

or omission. This pattern was the effect of his deprivation of constitutional

guarantees and of his “1983” claims.

IV. CONCLUSION

Based upon the above referenced arguments, the plaintiff respectfully request that

the Court recognize the genuine issues of material fact and deny defense motion

for summary judgment and allow a Jury of our peers to hear all the facts and

evidence to render an opinion on its merits.

Respectfully submitted,
                                                                      JOHN E BOYLE, PRO SE
                                                                      By himself,
 

                                                                      _____________________
28 February 2011                                     
                                                                      8 Seabrook Road
                                                                      Hyannis, Ma 02601
                                                                      508-648-7000