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Sebastian Castro v. Charles Panica et al.

July 17, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 124


Sebastian Castro was injured when Manchester police officer Charles Panica tackled him during the course of an arrest. Castro brought a variety of state and federal claims against Panica, several other officers who were present when Castro was arrested, the Chief of Police, and the City of Manchester. Defendants have challenged all of Castro's claims in a motion for summary judgment. As I explain below, Castro has waived many of his claims by failing to defend them in response to defendants' motion for summary judgment. On the remaining claims, I conclude that the excessive force and the assault and battery claims against Panica survive summary judgment, as does the claim that the City is vicariously liable for the assault and battery.


Around midnight on August 15, 2009, a police officer escorted Castro and three of his friends (Marin, Harrold, and Jubrey) from the Black Brimmer Bar in Manchester following a dispute with a bouncer. They joined a crowd that had gathered outside the bar. At least five police officers, including two on horseback, were attempting to disperse the crowd. Castro and his friends began to walk away from the bar as directed.

As they were passing by several officers, Castro directed swear words at the officers' horses, which upset the officers. The group continued walking at a slow pace, with Castro ahead of his friends. Marin then heard one of the officers say "you're arrested for disorderly conduct." He turned around because he did not know to whom the officer was speaking. Castro continued walking at the same pace. Officer Panica then sprinted toward Castro and tackled him from behind at full speed in a football-style maneuver, slamming Castro's head on the pavement. Castro was immediately rendered unconscious. Officer Steven Flynn arrived to assist Panica in handcuffing the unconscious Castro while Marin urged them to call an ambulance. A mounted officer approached the scene as Panica and Flynn were handcuffing Castro. The horse lost its footing trying to climb onto the sidewalk and hit Officer Panica on the forehead.*fn1

Castro was transported by ambulance to the emergency room. A CAT scan showed that he had suffered a concussion. The cut on his head was approximately four inches long. Four staples were required to close the laceration.

Castro was discharged to police custody the next morning. He was charged with disorderly conduct, resisting detention, and resisting arrest. The charges were ultimately dismissed.


Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.


Castro asserts eight federal and state claims against a variety of defendants, all stemming from his core contention that Officer Panica used excessive force to arrest him. Defendants seek summary judgment on all counts. As I explain in the next section, Castro has effectively waived a number of the claims by failing to defend or even mention them in his objection to defendants' motion. I then address the three remaining claims: the excessive force, the assault and battery, and the negligent training and supervision claims.

A. Waiver

According to the First Circuit's well-established "raise-or-waive" rule, all claims not raised, plead, or argued with sufficiency are waived. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259-60 (1st Cir. 1999); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991). The rule "applies with equal force to situations where a plaintiff properly raises an issue in his complaint, but then fails to adequately address it as part of his summary judgment argument." Rocafort v. IBM Corp., 334 F.3d 115, 121 (1st Cir. 2003); see Higgins, 194 F.3d at 260 ("A party who aspires to oppose a summary motion must spell out his arguments squarely and distinctly, or else forever hold his peace."); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. ...

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