Full opinion text
MEMORANDUM AND ORDER WITH REGARD TO CROSS-MOTIONS FOR SUMMARY JUDGMENT (Document Nos. 4-8 and 57) NEIMAN, United States Magistrate Judge. Eli Damon (“Plaintiff’) brought this action asserting certain common law and civil rights claims and seeking a permanent injunction against the Town of Hadley Police Department and certain Hadley police officers (“Defendants”), Dennis Hukowicz (Chief of the Hadley Police Department), Mitchell Kuc (a Hadley police officer), and Michael Mason (a sergeant in the department). Plaintiff sued each officer in both their individual and official capacities. Plaintiffs claims stem from multiple encounters with the Hadley police in connection with his riding a bicycle in the center of the right-hand lane of a state highway, resulting in three traffic stops, the confiscation of both his bicycle and a camera on his helmet, and the pursuit of criminal charges against him. Pursuant to 28 U.S.C. § 636(c) and Fed. R.CivJP. 73, the parties have consented to the jurisdiction of this court. Presently, both Plaintiff and Defendants seek summary judgment on all of Plaintiffs claims. For the reasons that follow, the court will allow Defendants’ motion for summary judgment in part and deny it in part and, in turn, deny Plaintiffs motion for summary judgment. As a result of these rulings, certain claims against Mitchell Kuc in his individual capacity will survive: malicious prosecution, conversion, unreasonable seizure, and violation of the Massachusetts Civil Rights Act. In addition, one claim against Michael Mason in his individual capacity will survive: violation of the Massachusetts Civil Rights Act. The parties have also filed motions to strike certain parts of the opposing side’s statement of facts. The court will deny Plaintiffs motion to strike and allow Defendants’ motion to strike but in part only. I. Standard of Review When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is “material” when it might affect the outcome of the suit under the applicable law. Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mend.es v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review.” Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006). II. Background The court notes as an initial matter that each side has responded to almost every paragraph of the other side’s statement of undisputed facts by informally seeking to “strike” certain information as mischaracterizations of deposition testimony, as irrelevant and/or prejudicial, as constituting improper legal arguments or conclusions, and/or as failing to cite the record. The court will not delve into the minutiae of these arguments but will instead refer below only to those that deserve highlighting. The parties have also filed separate, formal motions to strike certain statements and exhibits referenced in the other party’s undisputed facts. The court will address below the arguments raised in these separate motions. A. Facts Not in Dispute The parties do not dispute the following facts. At all times relevant to this action, Plaintiff resided in Amherst, Massachusetts. (Concise Statement of Undisputed Material Facts in Support of Defendants’ Motion for Summary Judgment (“Defs’ SOF”) ¶ 1.) He does not own an automobile but, instead, chooses to travel by bicycle. (Id. ¶ 6.) State Highway Route 9 in Hadley is one of the roads on which Plaintiff regularly rode his bicycle. (Id. II7.) Consistent with his view that bicyclists have the right to use public roads in the same manner as motorists, Plaintiff, since the Summer of 2005, often rode in the center of the travel lane. (Id. ¶ 8, 10; Plaintiffs Response to Defendants’ Concise Statement of Undisputed Material Facts (“Pi’s SOF”) ¶ 10.) He also believes that this practice is often safer than riding closer to the shoulder of the road because motorists approaching from behind will notice him earlier, “perceive [him] as relevant and be able to react earlier if [he is] in a prominent position.” (Defs’ SOF ¶ 14; Exhibit A (attached to Defs’ SOF) at 100.) Thus, if there was more than one lane in the same direction, Plaintiff “almost always” rode in the center of one of the lanes, usually in the right lane. (Exhibit A (attached to Defs’ SOF) at 71-72.) Plaintiff had a number of confrontations with motorists while riding in this manner on Route 9. For example, on March 30, 2007, Plaintiff was riding in the middle of the right lane for approximately one mile when Eric Perkins, driving a pickup truck, “came up behind [him] and laid on his horn for a pretty long time, and finally went around [him] and pulled into the Domino’s parking lot.” (Defs’ SOF ¶ 19-20; Exhibit A (attached to Defs’ SOF) at 108.) Plaintiff never moved from the middle of the right lane while Perkins was behind him. (Defs’ SOF ¶ 21.) Plaintiff, however, followed Perkins into the parking lot where, he claims, Perkins threw him to the ground on top of his bicycle. (Exhibit A (attached to Defs’ SOF) at 108-109.) Hadley police officer Adam Bartlett was dispatched to the scene and later informed Plaintiff that he did not have enough information to charge Perkins with a crime. (Defs’ SOF ¶ 23; Exhibit AA (attached to Defendants’ Responses to Plaintiffs Statement of Facts (“Defs’ Response”) ¶ 3.) Approximately one month later, Plaintiff made a complaint to the Hadley Police Department about being harassed by a school bus driver who attempted to pass him on Route 9 when there was insufficient room on the road. (Defs’ SOF ¶ 25.) Plaintiff again met with officer Bartlett who, according to Plaintiff, “kept repeating back [Plaintiffs] story to [him] incorrectly and then, when [Plaintiff] corrected him, accused [Plaintiff] of being inconsistent.” (Exhibit F (attached to Defs’ SOF) at 264.) Bartlett claims that he explained to Plaintiff that “it sounded ... as though the-bus driver was trying to help him [by yelling at Plaintiff to get out of the road] so that he would not get hurt.” (Exhibit AA (attached to Defs’ Response) ¶ 4.) Bartlett claims he “said [to Plaintiff] that if someone told him to get out of the road, they were not threatening him because he did not have the right to ride in the middle of a lane during rush hour when he was impeding traffic.” (Id.) Plaintiff was also pulled over by Hadley police on several occasions for riding his bicycle in this manner on Route 9. For example, on August 22, 2009, Plaintiff was riding down the middle of the right lane traveling west at approximately fifteen miles per hour in a thirty-five mile per hour zone; the traffic was “light to medium,” and cars behind him had to wait until the left lane opened up to pass him. (Defs’ SOF ¶¶ 26, 27; Exhibit G (attached to Defs’ SOF) at 103-104.) At the time, Hadley police officer Mitchell Kuc was inside a parked police cruiser in a driveway off the main road. (Id.) As Plaintiff passed, he heard Kuc shout through a loudspeaker to “get out of the middle' of the road.” (Id.) After hearing this, Plaintiff did not move but instead continued riding in the center of the right lane. (Id. ¶ 28.) Kuc then pulled Plaintiff over and, according to Plaintiff, told him that it was illegal to ride a bicycle on a state highway and that he was obstructing traffic. (Id. ¶ 29; Exhibit A (attached to Defs’ SOF) at 126-127.) According to Kuc, he stated that Plaintiff was riding on a busy state road, where vehicles travel at a high rate of speed and where there had been several accidents, and that he was concerned for Plaintiffs safety.. (Exhibit G (attached to Defs’ SOF) at 116.) Kuc also stated at the time that if he saw Plaintiff in the middle of the road again, he could be arrested. (Exhibit A (attached to Defs’ SOF) at 127, 132, 135; Exhibit G (attached to Defs’ SOF) at 117.) Plaintiff responded by stating that it was not illegal to ride his bicycle in the middle of the lane and that it was actually safer to do so. (Defs’ SOF ¶ 31; Exhibit A (attached to Defs’ SOF) at 135; Exhibit G (attached to Defs’ SOF) at 117.) Kuc then walked to his cruiser, brought back a statute book, and showed Plaintiff a statute that Kuc claimed required Plaintiff to move to the right to facilitate overtaking by other vehicles. (Defs’ SOF ¶ 31.) Thereafter, Kuc let Plaintiff go without giving him a written warning. (Id. ¶ 32.) Plaintiff had another encounter with Kuc on September 12, 2009. , (Id. ¶ 40.) Plaintiff was riding in approximately the same vicinity as he had been on August 22, 2009, at approximately the same speed, when he was again pulled over by Kuc. (Id. ¶ 40-41.) The two had an exchange similar to that which occurred on August 22. (Id. ¶ 41; Exhibit A (attached to Defs’ SOF) at 138; Exhibit G (attached to Defs’ SOF) at 128-29.) Again, Kuc stated that Plaintiff had a duty to move to the right when traffic came -up behind him to allow overtaking traffic to pass, whereas Plaintiff stated that it was safer to ride down the middle of the lane. (Defs’ SOF 46; Exhibit G (attached to Defs’ SOF) at 127-28.) Kuc then confiscated Plaintiffs bicycle and stated that he could pick it up at the Hadley Police Station. (Defs’ SOF ¶ 42.) After Kuc took his bicycle, Plaintiff walked approximately two miles to the police station, where Kuc returned the bicycle. (Id. ¶ 43.) At the station, Kuc stated that what Plaintiff had done might have been legal but that he did not care about the law, as he considered the manner in which Plaintiff was riding his bicycle on public roads “stupid.” (Id. ¶44; Pi’s SOF ¶ 44.) Kuc also stated that, if he heard that Plaintiff was riding in the middle of the lane on any road in Hadley, he would make sure Plaintiff was punished. (Id.) At his deposition, Kuc testified that he took Plaintiffs bicycle because he felt its continued operation would be dangerous and that he was authorized to confiscate it pursuant to his role as a “community caretaker,” authorizing police officers to take unsafe drivers off the roadway. (Defs’ SÓF ¶ 47.) Kuc pulled Plaintiff over a third time on March 20, 2010. (Defs’ SOF ¶ 51-52.) Plaintiff was traveling west in the middle of the right lane on Route 9, when Kuc pulled up behind him, activated his rear blue lights, and began videotaping him from inside his cruiser. (Id. ¶ 49-50; Exhibit G (attached to Defs’ SOF) at 145; Exhibit I (attached to Defs’ SOF).) Plaintiff was traveling approximately fifteen miles per hour in a 40 mile per hour zone, and, again, cars had to wait until the left lane opened up to pass him (and Kuc). (Exhibit G (attached to Defs’ SOF) at 147; Exhibit I (attached to Defs’ SOF).) After videotaping Plaintiff for twenty-six seconds, Kuc activated his front blue lights and siren and Plaintiff pulled over. (Defs’ SOF ¶ 51-52.) Kuc informed Plaintiff that he was issuing him a citation for failure to keep to the right. (Id. ¶ 53.) He explained that, while Plaintiff generally could ride his bicycle in the middle of the lane, when a vehicle came up behind him he had to move over to the right. (Id.) Kuc then went back to his cruiser to conduct a background check on Plaintiff. (Id. ¶ 54.) Kuc’s computer was not functioning properly; instead, Kuc used Officer David Isakson’s computer when he arrived at the scene. (Id.) Because Plaintiff also went by additional names, including “Eli Damon Cooper,” Kuc was further delayed in researching his information. (Exhibit BB (attached to Defs’ Response).) Approximately fifteen minutes after Kuc went to his cruiser, he returned and gave Plaintiff a uniform civil citation for failure to keep right upon being overtaken. . (Id. ¶ 55.) Although the citation listed M.G.L. c. 85, § 11B, as the violated statute, Kuc was mistaken; he intended to list M.G.L. c. 85, § 11B. (Exhibit D (attached to Pi’s SOF); Defs’ Response ¶ 55.) After giving Plaintiff the citation, Kuc asked Plaintiff what was on top of his bicycle helmet. (Defs’ SOF ¶ 56.) Plaintiff explained that it was a camera. (Id.) Kuc then asked whether the camera was recording his voice, and Plaintiff replied “yes.” (Id.; Exhibit A (attached to Defs’ SOF) at 158; Exhibit G (attached to Defs’ SOF) at 168.) Kuc stated that it was illegal to secretly record his voice; Plaintiff stated that he was not being secretive but, rather, was openly recording. (Defs’ SOF ¶ 57.) Kuc explained that Plaintiff did not inform him of the camera and that it was not apparent because there was no “flashing red light.” (Id.) Plaintiff responded that he did not think he needed to tell Kuc and then took the camera off his helmet and showed Kuc the red light indicating that it was recording. (Id.) Plaintiff states that he was wearing the camera for two reasons: (1) he “was testing it out for ... taking footage for educational stuff,” and (2) he “was afraid of being pulled over by the police and [he] wanted evidence in case that occurred.” (Exhibit A (attached to Defs’ SOF) at 160.) After discussing the camera with Plaintiff, Kuc stated that he was taking the camera “to hold as evidence” and asked Plaintiff to turn it off. (Defs’ SOF ¶ 60.) Plaintiff turned off the camera and asked Kuc for a receipt, but Kuc explained that he could not provide one because it was not department policy to do so. (Id. ¶ 61.) At some point, Sergeant Michael Mason arrived on the scene, and Kuc discussed with him his intent to bring illegal wiretapping and disorderly conduct charges against Plaintiff. (Id. ¶ 63, 68.) Plaintiff testified at his deposition that Mason made disparaging comments about the fact that Plaintiff had obtained an attorney; Mason also stated, according to Plaintiff, that •wiretapping was a serious crime, that he was in big trouble, and that if Mason saw him riding in the middle of the lane again he would have Plaintiff arrested immediately. (Defs’ SOF ¶ 63; Pi’s SOF ¶ 63.) Mason, for his part, denies that he made disparaging comments about Plaintiff having an attorney and, instead, claims that he stated “that his having an attorney did not change [Mason’s] opinion that [Plaintiffs] manner of operating his bicycle on Route 9 was very dangerous.” (Defs’ SOF ¶ 64; Exhibit Y (attached to Defs’ SOF).) Mason also claims that he stated to Plaintiff that “I thought his conduct amounted to disorderly conduct for which he could be arrested.” (Id.) In any event, Kuc eventually told Plaintiff that he'was free to go. (Defs’ SOF ¶ 66.) He did not inform Plaintiff that he would be bringing any specific charges against him. (Defs’ SOF ¶ 65; Pi’s SOF ¶ 65.) In total; the stop lasted approximately thirty minutes. (Defs’ SOF ¶ 66.) At some point thereafter, following Mason’s suggestion, Kuc spoke with Neil Desroches, an Assistant District Attorney, to obtain his opinion as to whether there was enough support for charges of disorderly conduct and a violation of the wiretapping statute; Kuc explained that he stopped a bicyclist who was riding in the middle of a travel lane on Route 9, that he observed the bicyclist not moving to the right for overtaking vehicles, and that there was room for the bicyclist to travel on the right side of the road. (Exhibit K (attached to Defs’ SOF).) Kuc also told Desroches that while he was issuing the citation to the bicyclist he noticed, for the first time, something on the bicyclist’s helmet and that, upon inquiry, the bicyclist admitted that it was a video camera which recorded audio. (Id.) Desroches stated that he agreed with Kuc that there was sufficient support for the charges. (Id. ¶ 69-70.) Later that day, Kuc filed an Application for Criminal Complaint against Plaintiff for unlawful wiretapping, and disorderly conduct. (Defs’ SOF ¶ 79.) . The Clerk Magistrate -of the Eastern Hampshire District Court found probable cause and issued a criminal complaint charging Plaintiff with unlawful wiretapping in violation of ■ M.G.L. c. 272, § 99(C)(1), and disorderly conduct in. violation of M.G.L. c. 272, § 53. (Id. ¶ 80-81.) After being arraigned, Plaintiff filed a motion to dismiss, which the court allowed with respect to the wiretapping and disorderly conduct charges but denied with respect to the civil motor vehicle citation Kuc had issued. (Id. ¶¶ 83, 85; Exhibit Q (attached to Defs’ SOF).) The court held a hearing on the civil citation on October 5, 2010, but because of a mix-up between the court and the Hadley Police Department, Mark Shlosser, who was representing the department on citation appeals that day, was not prepared to proceed. (Defs’ SOF ¶ 87; Exhibit R (attached to Defs’ SOF).) Despite Shlosser’s request to continue the hearing, the. court dismissed the citation. (Id.) Following these dismissals, Plaintiff contacted the District Attorney’s Office to obtain his camera. (Defs’ SOF ¶ 98.) The District Attorney’s Office informed him that the Hadley Police Department had the camera but failed to tell him that it, not the Hadley Police Department, still had the camera’s memory card. (Id.) After waiting “about a month” for the Hadley Police Department to “voluntarily” return the camera, Plaintiff wrote to Chief Hukowicz asking that the camera be made available to a “family member or other agent to pick it up.” (Pis’ SOF ¶ 99; Exhibit S (attached to Defs’ SOF).) In response, Hukowicz wrote Plaintiff the following: Your property may be picked up at the Hadley Police Department. You must make arrangements with the evidence officer, Sgt. Damion Shanley, who works 3pm-llpm to pick it up. If you are having someone other than yourself pick it up, you must supply a written document signed by you authorizing that person to pick it up on your behalf. (Exhibit T (attached to Defs’ SOF).) Plaintiff then asked an acquaintance, Sarah Strong, to go to the Hadley Police Department on his behalf. (Defs’ SOF ¶ 103.) He gave Strong a letter addressed to Shanley authorizing her to receive the camera. (Id. ¶ 104; Exhibit F (attached to Defs’ SOF) at 227.) When Strong arrived to retrieve Plaintiffs camera and presented the letter, Shanely refused to give it to her because the letter was not notarized. (Pi’s SOF ¶ 105.) According to Shanley, as a matter of practice he always requires a notarized letter prior to releasing evidence to anyone other than the property owner, and he informs individuals of this requirement if they contact him in advance. (Defs’ SOF ¶ 110; Exhibit U (attached to Defs’ SOF) at 62, 71-72.) Plaintiff had not contacted Shanley ahead of time. (Id. ¶ 105.) Shanley admits, however, that there is no published policy or procedure stating as much and that the only officer he recalls advising of this practice was Mason. (Exhibit U (attached to Defs’ SOF) at 62, 71-72.) On November 29, 2010, Plaintiffs counsel wrote Hukowicz explaining that Plaintiff had complied with the procedures set forth in Hukowicz’s letter by sending Strong, along with a signed letter, to retrieve the camera but that Shanley refused to turn it over. (Exhibit 6 (attached to Pi’s SOF).) Plaintiffs counsel asked that Plaintiffs camera be returned immediately and requested that Hukowicz contact him to make arrangements. (Id.) On October 29, 2011, after Plaintiff filed the instant action, Town Administrator David Nixon delivered the camera to Strong, whom he knows personally. (Defs’ SOF ¶ 112; Pi’s SOF ¶ 112.) The memory card, however, was not delivered as it was still in the possession of the District Attorney’s Office. (Defs’ SOF ¶ 113.) On December 14, 2011, two days after a hearing before this court on Plaintiffs motion for the return of his property (Doc. No. 8), Nixon delivered the memory card to Strong. (Id.) Plaintiff claims that since the stop on March 20, 2010, unidentified Hadley police officers have ordered him to “get off the road” on at least two occasions while he was riding in the middle of a lane on Route 9. (Defs’ SOF ¶92; Pi’s SOF ¶92.) On July 27, 2011, Plaintiff was struck by a vehicle while riding his bicycle in the middle of the right eastbound lane on the Coolidge Bridge on Route 9 in Northampton; he suffered personal injuries as a result. (Defs’ SOF ¶ 133.) In addition to the incidents in Hadley, police officers in other Massachusetts towns have also stopped Plaintiff for riding in the middle of a travel lane, including West Springfield, Easthampton, and Southboro, as well as in one New Hampshire town. (Defs’ SOF ¶ 93-97.) B. Defendants’ Motion to Strike (Document No. 65) Defendants have filed a motion to strike (1) references to a report prepared by Plaintiffs expert witness, John Allen, (2) various exhibits submitted by Plaintiff, and (3) the affidavits of two individuals who also claim to have been mistreated by Hadley police officers while bicycling there. The motion will be allowed in part and denied in part. 1. Expert Witness Report Defendants first argue that Alen’s expert report should be stricken because “an expert report ... meets the literal definition of hearsay” which cannot be considered on summary judgment. It is well established, however, that “[njonmovants may rely on the affidavits of experts in order to defeat a motion for summary judgment [although] such evidence must still meet the standards of Rule 56.” Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir.1993). In particular, Rule 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” See Poulis-Minott v. Smith, 388 F.3d 354, 360 (1st Cir.2004) (applying this rule to expert evidence). To the extent Defendants argue that Alen’s report constitutes hearsay because it is unsworn, Plaintiff filed an affidavit by Alen “adopt[ing[ ] and affirming] and certifying] as true under pains and penalties of perjury the entirety of my expert witness report submitted in this case.” (Exhibit 2 (attached to Plaintiffs Opposition to Defendants’ Motion to Strike).) Alen continued: “A1 facts are of my personal knowledge, except those facts which are referenced to sources therein. For those facts, [I] relied upon the sources identified, as is set forth in the report.” (Id.) This affidavit, the court finds, cures any deficiency regarding Alen’s compliance with Rule 56(c)(4). See Matías v. Amex, Inc., 2013 WL 795056, at *2 (D.R.I. March 4, 2013) (collecting cases which hold that unsworn expert reports subsequently verified by an affidavit may be considered at the summary judgment stage). Defendants, however, still' take issue with certain information contained in Alen’s report. For instance, Defendants seek to strike information regarding the condition of the Norwottuck Rail Trail, an adjoining bike path on a defunct railroad line. Since Plaintiff himself maintains that Defendants’ separate reference to the bike path in their statement of undisputed facts is “immaterial and irrelevant,” a description with which the court agrees, it will, as well, not consider the path’s allegedly poor condition and/or lack of access. Defendants also contend that much of Alen’s report constitutes improper conclusions of law. The court agrees. “Athough expert testimony may be more inferential than that of fact witnesses, in order to defeat ■ a motion for summary judgment an expert opinion must be more than a eonelusory assertion about ultimate legal issues.” Hayes, 8.F.3d at 92. Many of Alen’s statements, are improper legal conclusions regarding the state of the traffic laws in Massachusetts, an issue for the court not an expert to decide. See NievesVillanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir.1997) (“It is black-letter law that it is not for witnesses to instruct the jury as applicable principles of law, but for the judge.”) (quoting United States v. Newman, 49 F.3d 1, 7 (1st Cir.1995)). In particular, the court will strike paragraphs 114A, 114D, 114E, 114F and 114G from Plaintiffs Response to Defendants’ Statement of Undisputed Facts. As for the remainder of the statements in Alen’s report which Defendants target, most discuss generally accepted practices for bicyclists riding in traffic, the requisite width of a lane for motorists to safely pass a bicyclist- without changing lanes, and common causes of bicycle accidents. Allen’s report cites a number of sources for these propositions, many of which can be found online. Defendants argue that Allen’s reliance on such internet sources is inappropriate because they are not “self-authenticating.” In response, Plaintiff argues that “such materials are properly before the Court as they are ‘published treatises, periodicals, or pamphlets’ on a subject that have been relied upon by an expert.” (quoting Fed.R.Evid. 803.18.) Plaintiff has the better argument; the sources, while available online, are published studies and reports written by reputable experts. Simply because copies are available on the internet (in addition to print format) does not destroy their reliability under Fed.R.Evid. 803.18. The court agrees with Defendants, however, that paragraph 114C — which states that “[njowhere on Route 9 in Hadley are lanes as much as 14 feet wide, except where they split or merge to accommodate travel in more than one direction” — should be stricken because Allen admitted at his deposition that he “never did a measurement” of Route 9 and, therefore, the statement was not within his personal knowledge. (Exhibit 1 (attached to Pi’s SOF) at 113.) Similarly, the court will strike the statement in paragraph 1141 indicating that Route 9 is “too narrow to share safely with overtaking motor vehicles.” 2. Exhibits Defendants also seek to strike Plaintiff’s Exhibits A-l, A-2, G-l, and G-2. Exhibits A-l and A-2 are videos of Plaintiff and Allen riding on Route 9 and along the Norwottuek Rail Trail.; the court agrees that these videos fail to show whether Plaintiff was operating his bicycle in compliance with the relevant traffic rules or the road conditions at the time of the incidents at issue in this case. As for Exhibit G-l, it is a video taken in Orlando, Florida, and found on the website commuterorlando.com showing motorists passing a bicyclist riding in various lane positions. Exhibit G-2 is a video prepared by the Orlando Police Department regarding the proper lane positioning of bicyclists vis-a-vis motorists under Florida law. The court agrees with Defendants that these videos constitute inadmissible hearsay. Moreover, they are not relevant to the issues in this case as they pertain to bicycling techniques under Florida, not Massachusetts, law. 3. Affidavits Finally, Defendants seek to strike the affidavits of Lynn Grabowski and Timothy Cary on the ground that “they are not properly signed.” As Plaintiff explains, however, while the original copies of the affidavits filed with the court were not signed, he has since substituted signed copies. (See Doc. No. 58-4 and 58-5.) Nevertheless, the court notes that these affidavits, which describe two encounters with Hadley police officers on Route 9, are of limited value because the affiants are not plaintiffs in this action C. Plaintiffs Motion to Strike (Document No. 76) For his part, Plaintiff seeks to strike the affidavit of Adam Bartlett, another Hadley Police officer but not a party to this lawsuit. Defendants submitted Bartlett’s affidavit in order to dispute Plaintiff’s deposition testimony as to what Bartlett said during his encounters with Plaintiff. Plaintiff claims that the affidavit “is a classic sham affidavit” because it is inconsistent with prior testimony. The sham affidavit rule” applies when an affidavit “clearly contradicts [that witness’s] prior deposition testimony.” Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir.1994). Here, however, Bartlett was never deposed; therefore, as Defendants argue, his affidavit cannot contradict any “prior testimony.” See Patterson v. Dolan, 2001 WL 1154592, at *2 (D.Me. 2001) (where “there is no apparent contradiction” in testimony “Colantuoni does not apply”). Persevering, Plaintiff argues that Bartlett’s affidavit should be stricken nonetheless because it contradicts Kuc’s testimony regarding the state of traffic while Plaintiff was riding on Route 9. As Defendants explain, however, Bartlett was not present when Kuc observed Plaintiff in traffic; accordingly, the court sees no contradiction at this time in their testimony. As a last resort, Plaintiff argues that “even if not stricken, the Bartlett affidavit should be afforded no credibility, as it reflects the same bias exhibited by his brother defendant officers.” Plaintiff, however, provides no support for this statement and the affidavit is made on Bartlett’s personal knowledge. III. Discussion In his complaint, Plaintiff asserts claims for malicious prosecution and abuse of process (Count I), conversion (Count II), and violations of his civil rights (Count III). He also seeks a permanent injunction (Count IV), the particulars of which will be described below. A. Traffic Laws Much of the parties’ dispute comes down to their differing interpretations of two Massachusetts statutes. One, Mass Gen. Laws chapter 85, § 11B, provides: Every person operating a bicycle upon a way, as defined in section one of chapter ninety, shall have the right to use all public ways in the commonwealth except limited access or express state highways where signs specifically prohibiting bicycles have been posted, and shall be subject to the traffic laws and regulations of the commonwealth and the special regulations contained in this section, except that: (1) the bicycle operator may keep to the right when passing a motor vehicle which is moving in the travel lane of the way, (2) the bicycle operator shall signal by either hand his intention to stop or turn; provided, however, that signals need not be made continuously and shall not be made when the use of .-both hands is necessary for the safe operation of the bicycle, and (3) bicycles may be ridden on sidewalks outside business districts when necessary in the interest of safety, unless otherwise directed by local ordinance. A person operating a bicycle on the sidewalk shall yield the right of way to pedestrians and . give an audible signal before overtaking and passing any pedestrian. Operators of bicycles shall be subject to the following regulations: (1) Bicyclists riding together shall not ride more than 2 abreast but, on a roadway with more than 1 lane in the direction of travel, bicyclists shall ride within a single lane. Nothing in this clause shall relieve a bicyclist of the duty to facilitate overtaking as required by section 2 of chapter 89. The other statute, Mass Gen. Laws Chapter 89, § 2, provides in relevant part as follows: If it is not possible to overtake a bicycle or other vehicle at a safe distance in the same lane, the overtaking vehicle shall use all or part of an adjacent lane if it is safe to do so or wait for a safe opportunity to overtake. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on visible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle. Similarly, 720 C.M.R. § 9.06(5) provides that: [s]ubject to the provisions of M.G.L. c. 89, § 2, the driver of a vehicle when about to be overtaken and passed by another vehicle approaching from the rear shall give way to the right when practicable in favor of the overtaking vehicle, on suitable and visible signal being given by the driver of the overtaking vehicle, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle. Significantly, another regulation, 720 C.M.R. § 9.01 explicitly defines “vehicle” as “including bicycles when the provisions of these rules are applicable to them.” This definition, combined with the statement in M.G.L. c. 85, § 11B, that “[n]othing in this clause shall relieve a bicyclist of the duty to facilitate overtaking as required by section 2 of chapter 89,” leads the court to conclude that the reference to the “driver of an overtaken vehicle” in M.G.L. c. 89, § 2, includes bicyclists. Defendants contend that these provisions, read together, require that bicycles ride “as close as practicable” to the right side of the roadway unless there is not faster traffic in the right lane behind the cyclist or unless the cyclist is preparing to make a left turn. In further support, Defendants cite Five Borough Bicycle Club v. City of New York, 684 F.Supp.2d 423, 448-49 (S.D.N.Y.2010), which construed somewhat similar New York statutes. One of those statutes provides that “[ejvery person riding a bicycle ... upon a roadway shall be granted all of the rights and shall be subject to all the duties applicable to the driver of a vehicle by this title, except as to special regulations in this article and except as to those provisions of this title which by their nature can have no application.” N.Y. Veh. & Trae. L. § 1231. The other provides that “any vehicle proceeding at less than the normal speed of traffic ... shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the road way____” Id. § 1120(b). The court in Five Borough Bicycle Club held that “[sjince bicyclists typically proceed at less than the normal speed of traffic and are subject to the same duties as motorists, [the statutes], read together, require that bicycles ride as close as practicable to the right-hand curb or edge of the roadways except where there is no faster traffic in the right-hand lane or when preparing to make a. left turn.” Id. at 449. Plaintiff, for his part, contends that M.G.L. c. 89, § 2, only addresses a vehicle being overtaken on a two lane road, i.e., one in each direction, and does not apply to the portions of Route 9 at issue which have multiple lanes of travel in each direction. Because there was a passing lane to the left, Plaintiff asserts, he was free to ride in the center of the right lane continuously in accord with M.G.L. 85, § 11B, which states that bicyclists “shall have the right to use all public ways in the commonwealth” (except those where they are specifically prohibited). Plaintiff also argues that “taking the lane” in this manner is a universally accepted practice among bicyclists and that it is safer than riding on the right. In the court’s opinion, neither side has the interpretation of these various provisions quite right. Defendants’ assertion that, generally, bicyclists need to ride “as close as practicable” to the right side of the roadway does not appear to take into account safety considerations inherent in the governing statutes unless, of course, they view “practicability” in this manner. Plaintiff, on the other hand, overstates the equivalence of bicyclists and motorists and, in his own way, ignores safety- concerns related to the significant speed differential between bicycles and cars. For its part, the court, in light of the plain language of the statutory provisions, has little trouble concluding that Massachusetts law requires a slower-traveling bicyclist to pull to the right to allow a faster-traveling motorist to pass when it is safe to do so under the circumstances. While “[b]icycl[ists] are expressly.authorized by statute to use most public ways,” Opinion of the Justices to the Senate, 370 Mass. 895, 352 N.E.2d 197, 200 (1976) (citing M.G.L. c. 85, § 11B), they are likewise obligated to comply with applicable traffic laws, most notably, M.G.L. c. 89, § 2, which. requires bicyclists to “give way to the right in favor of the overtaking vehicle.” This obligation is enhanced by 720 C.M.R. § 9.06(a), which prohibits bicyclists from “unnecessarily” obstructing “the normal movement of traffic.” Concomitantly, motorists may only pass bicyclists “at a safe distance” when passing within “the same lane” or they must wait until a “safe” opportunity to pass by using “all or part of an adjacent lane.” M.G.L. c. 89, § 2. (The parties agree that an “adjacent lane” includes one going in the same direction or in the opposite direction where appropriate.) Thus, as required by yet another statute, motorists approaching and seeking to pass a bicyclist also must “slow down and pass at a safe distance and at a reasonable and proper speed.” M.G.L. c. 90, § 14. Clearly, then, the legislature contemplated that motorists would regularly pass bicyclists. The statutes also create reciprocal obligations on the part of both motorists and bicyclists to ensure that passing would occur only at a time when it is safe to do so and only in a safe manner. Such safety, of course, would include the configuration of the roadway and its shoulders, as well as their conditions and/or states of repair. If need be, these safety considerations must be measured from an objective rather than a subjective viewpoint, because one person’s idea of “safety” may differ greatly from another’s. See, e.g., Criminal Model Jury Instruction for Use in the District Court, Instruction 5.240 (MCLE 2013). In all, in the court’s view, “safety” is key to the legislative scheme; it is also the fulcrum upon which much of this case turns. That said, and contrary to Plaintiffs argument, there is nothing in M.G.L. c. 89, § 2, or any other statutory or regulatory provision which indicates that the obligation of bicyclists to “give way to the right in favor of the overtaking vehicle” does not apply on multi-lane roadways. Moreover, as discussed, 720 C.M.R. § 9.06(a) prohibits bicyclists from “obstructing] unnecessarily the normal movement of traffic upon any highway.” Therefore, Plaintiffs contention that he may “hold” the right-hand lane as long as there is a passing lane to his left, even when there is heavy traffic in both lanes and even when it would be safe for him to pull to the right to allow overtaking traffic to pass, cannot be correct. It is simply an unreasonable interpretation of the law in terms of its plain language, purpose, and practical implications. Having construed the applicable traffic laws, the court will now turn to Plaintiffs specific claims. B. Malicious Prosecution (Count I) In Count I of his complaint, Plaintiff asserts a malicious prosecution claim in connection with the criminal charges brought against him for disorderly conduct and under the wiretapping statute. “To prevail on a claim for malicious prosecution, a plaintiff must establish that he was damaged because the defendant commenced the original action without probable cause and with malice, and that the original action terminated in his favor.” Chervin v. Travelers Inc. Co., 448 Mass. 95, 858 N.E.2d 746, 753 (2006). As might be expected, the parties disagree over each element of this claim. In the end, however, the court will conclude, as to Plaintiffs claim against Kuc in his individual capacity, that there remain genuine issues of material fact such that summary judgment is not warranted but that summary judgment is appropriate in favor of the other defendants. As an initial matter, the court agrees with Defendants that there is no evidence that Chief Hukowicz had any involvement with the decision to bring charges against Plaintiff; Plaintiff does not argue to the contrary. The court also agrees that the Hadley Police Department is immune from this claim; under section 10(c) of the Massachusetts Tort Claims ACT (“MTCA”), public employers are immune from “any claim arising out of an intentional tort, including ... malicious prosecution.” M.G.L. c. 258, § 10(c). As the Hadley Police Department falls within the definition of a “public employer,” see M.G.L. c. 258, § 1, section 10(c) plainly applies. Moreover, the official-capacity claims against Kuc and Mason are actually claims against the department itself, see McMillian v. Monroe County, 520 U.S. 781, 785 n. 2,117 S.Ct. 1734,138 L.Ed.2d 1 (1997), and, thus, are barred by the MTCA. See Saxonis v. Lynn, 62 Mass. App.Ct. 916, 817 N.E.2d 793, 797 (2004). The court will therefore proceed to address the elements of the malicious prosecution claims against Kuc and Mason in their individual capacities. 1. Institution of Criminal Proceedings The parties first dispute whether Kuc and Mason instituted criminal proceedings against Plaintiff. For their part, Defendants cite Morrissey v. Town of Agawam, 883 F.Supp.2d 300, 312 (D.Mass. 2012), in which this court, after concluding that the defendants there had probable cause to arrest the plaintiff, held in the alternative that the defendants had an insufficient role in the process of charging the plaintiff. Kuc and Mason, Defendants argue, are similarly situated. For his part, Plaintiff argues that Morrissey is distinguishable and that, by filing the application for a criminal complaint, Kuc actually instituted the criminal proceedings against him. In addition, Plaintiff asserts that Mason was sufficiently involved with the decision to file the criminal complaint as to render him liable as well. There is ample support for the proposition that filing a criminal complaint constitutes the institution of criminal proceedings and, while such conduct is not always necessary for a claim of malicious prosecution, it is certainly sufficient See Limone v. United States, 579 F.3d 79, 89 (1st Cir. 2009) (“In broad brush, an individual may be said to have instituted criminal proceedings against another if he caused those proceedings to be initiated____The paradigmatic example exists when a person formally swears out a criminal complaint against another person----But malicious prosecution is by no means restricted to this paradigm.” (internal citations omitted)); Goddard v. Kelley, 629 F.Supp.2d 115, 130 (D.Mass.2009) (“The act of malicious prosecution begins with the submission, under oath, of a criminal complaint,” although “ ‘[a] person need not swear out a criminal complaint in order to be held answerable for malicious prosecution.’ ”) (quoting Correllas v. Viveiros, 410 Mass. 314, 572 N.E.2d 7,10 (1991)). In the case at bar, Kuc clearly instituted the criminal proceedings against Plaintiff by filing the application for a criminal complaint. In addition, as Plaintiff argues, Morrissey is distinguishable. The court agrees. The plaintiff there “concede[d] that [the defendants] had no formal role in the prosecutorial process and acknowledge[d] that ‘there [was] no evidence of affirmative pressure’ ” by them. Morrissey, 883 F.Supp.2d at 312. And in contrast to Kuc here, neither of the defendants in Morrissey filed an application for a criminal complaint; rather, the defendant most involved in the prosecution merely completed an arrest report. Id. Mason, on the other hand, did not seek the criminal complaint against Plaintiff. Moreover, there is no evidence that Mason affirmatively induced Kuc to bring any charges. See Limone, 579 F.3d at 89-90; Correllas, 572 N.E.2d at 10. The record demonstrates that Mason merely encouraged Kuc to contact Desroches, an Assistant District Attorney, because he was unsure whether there was enough support for the charges Kuc wished to bring. Such conduct does not amount to instituting criminal proceedings and, accordingly, the court will enter- summary judgment in Mason’s favor on the malicious prosecution claim. 2. Probable Cause As to the next element, Defendants argue that Kuc cannot be liable for malicious prosecution because he had probable cause to pursue the charges. This argument requires the court to analyze both the underlying charges and the factual circumstances of the March 20, 2010 stop. As might be expected, Plaintiff disputes Defendants’ assertions. “In the context of a malicious prosecution action based on a criminal complaint, probable cause has been defined as such a state of facts in the mind of the [defendant] as would lead a [person] of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the- plaintiff has committed a crime.” Bednarz v. Bednarz, 27 Mass. App.Ct. 668, 542- N.E.2d 300, 302 (1989) (internal quotation marks omitted). Whether probable cause exists “ ‘is judged by an objective, rather than a subjective standard.’ ” Chervin, 858 N.E.2d at 754 (quoting Bednarz, 542 N.E.2d at 303 n. 5.). “A lack of probable cause must be affirmatively proved, and may not be inferred from the existence of malice ... or from the fact of acquittal or anything else.... [But] [w]hen the facts are disputed, probable cause is a question for the jury.” Id. (internal quotation marks and citations omitted). Here, the underlying charges brought against Plaintiff were violations of M.G.L. c. 272, § 53, i.e., disorderly conduct, and M.G.L. c. 272, § 99(C)(1), commonly known as the “wiretapping statute.” An individual is guilty of disorderly conduct if: (1) he creates a hazardous or physically offensive condition by an act that serves no legitimate purpose of the individual; (2) his actions are reasonably likely to affect the public; and (3) he either intended to cause public inconvenience, annoyance or alarm, or recklessly created public inconvenience, annoyance or alarm. See Commonwealth v. LePore, 40 Mass.App.Ct. 543, 666 N.E.2d 152,155 (1996). The wiretapping statute makes it a crime to “willfully commit[ ] an interception ... of any wire or oral communication.” M.G.L. c. 272, § 99(C)(1). “The term ‘interception’ means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication .... ” M.G.L. c. 272, § 99(B)(4). Regarding the disorderly conduct charge, the court concludes that there are sufficient factual questions as to whether probable cause existed for that charge, namely, that Plaintiff had no legitimate reason for traveling in the middle of the roadway and either intended to cause or recklessly created a public inconvenience, annoyance or alarm. As described, the traffic laws require bicyclists to pull to the right and permit motorists to pass a bicyclist, but only when it is safe to do so. Therefore, if it was not objectively safe under the circumstances preceding the March 20th stop for Plaintiff to pull to the right, then it may be said that he had a legitimate purpose for “holding the road.” As indicated, the court has rejected Plaintiffs argument that, regardless of road conditions and other safety considerations, he has the unfettered right to ride in the middle of the right-hand lane in light of the passing lane to his left. Plaintiff, however, also* contends that it was not safe to pull to the right on March 20th because there were not only various driveways in the area — which could have led cars to unknowingly hit him upon entering or exiting if he was positioned close to the curb — but, as well, dirt, sand and other dangerous debris' on the side of the road. To be sure-, Plaintiff, in hindsight, may well be overstating these safety concerns, given his primary position that he could hold the center of the lane even in the absence of such conditions. The record, however, does contain video evidence of Plaintiff riding on Route 9 prior to the traffic stop, which shows some dirt and sand on the side of the road. Whether that was truly the reason for Plaintiffs holding the center of the lane on March 20th is in dispute. In sum, the issues of safety and, relatedly, probable cause are factual questions most properly resolved by a jury. Factual disputes similarly preclude the conclusion that probable cause existed as to the wiretapping charge. As explained by the First Circuit in Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir.2011) — which, although decided after the events at issue here, relies on pre-existing Massachusetts caselaw — the question of whether an individual “secretly” records audio of another in violation of the statute “turns, on notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.” Here, Defendants contend that the camera on Plaintiffs helmet was not apparent and that Kuc did not notice it until after he gave Plaintiff the citation; Plaintiff, on the other hand, asserts that it was open and obvious. There is also a dispute as to whether the red recording light was visible while the camera was attached to Plaintiffs helmet. Accordingly, if a jury believes Plaintiffs version of the facts, it could conclude that Kuc had actual knowledge of the recording and, as a result, that he did not have probable cause for the wiretapping charge. See id. at 88 (“[T]he use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the subjects’ actual knowledge of the recording.”) (citing Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963, 971 (2001)). Still, Defendants argue, citing Cox v. Hainey, 391 F.3d 25, 32 (1st Cir.2004), Kuc had probable cause to pursue both the disorderly conduct and wiretapping charges because he consulted with Desroches, the Assistant District Attorney. In Cox, the First Circuit held that a prearrest consultation with a prosecutor is one factor in determining whether qualified immunity protects an officer, from a false arrest claim under 42 U.S.C. § 1983. Unlike the situation in Cox, however, the malicious prosecution claim here arises under state, not constitutional, law and, thus, qualified immunity is not applicable. Williams v. Boston, 2012 WL 5829124, at *10 (D.Mass. Sept. 21, 2012) (holding that qualified immunity protects police officers from Fourth Amendment malicious prosecution claim but that the' plaintiffs state law malicious prosecution claim must survive). Even so, the First Circuit in Cox went out of its way to explain that “a wave of the prosecutor’s wand cannot magically transform an unreasonable probable cause determination into a reasonable one” and that, in order to rely on the prosecutor’s advice, the officer must have made “a full presentation of the known facts.” Cox, 391 F.3d at 34, 35. Here, according to Desroches’ affidavit, Kuc told him not only that Plaintiff did not pull to the right for overtaking vehicles even though there was room on the right side of the road, but, in addition, that he only noticed the camera after returning from his cruiser. As explained, however, Plaintiff asserts that it was not safe to pull to the right and that the camera was plainly apparent. Therefore, it is also unclear on this record whether Kuc made “a full presentation of the known facts”' to Desroches. Compare id. at 36 (“The undisputed facts indicate that the two reviewed the available evidence fully and had a frank discussion about it.”). If a jury believes Plaintiffs version of the facts, it could find that Kuc did not have probable cause to pursue the charges. 3. Malice Moving on to the next element, Defendants argue that there is no evidence that Kuc acted with malice but, rather, that the evidence indicates that he was trying to keep both Plaintiff and the public safe. In support, Defendants point out that Kuc only charged Plaintiff after his third stop and even showed him a statute book during the first. Plaintiff, for his part, argues that there is ample evidence to infer malice in the form of both words and conduct, namely, the multiple stops, the refusal to return the camera, and the general hostility toward Plaintiff. The court concludes that a jury could in fact find malice. “To raise a genuine issue of material fact on the question of malice, the plaintiff must come forward with some evidence that would permit a fact finder to conclude that [the defendant] (1) knew there was no probable cause, and (2) acted with an improper motive ... i.e., acted primarily for a purpose other than that of properly adjudicating the claim.” Sklar v. Beth Israel Deaconess Medical Center, 59 Mass.App.Ct. 550, 797 N.E.2d 381, 387 (2003) (internal quotation marks and citations omitted). “ ‘[I]mproper motive may be one of vexation, harassment, annoyance, or attempting to achieve an unlawful end or a lawful end through an unlawful means.’ ” Chervin, 858 N.E.2d at 757 (quoting Beecy v. Pucciarelli, 387 Mass. 589, 441 N.E.2d 1035, 1038 n.,9 (1982)). Looking solely at Kuc’s conduct, there is sufficient evidence from which a jury could infer that he acted with malice in pursuing the charges. Most telling were Kuc’s statements after the second stop. First, Kuc acknowledged that Plaintiff may have been complying with the law by riding in the middle of the lane but stated that he did not care about the law because he thought Plaintiffs riding technique was “stupid.” He then stated that if he heard that Plaintiff was riding in the. middle of any road in Hadley again, he would make sure that Plaintiff was punished. On the basis of these statements, a jury could infer that Kuc sought the charges, following his next stop of Plaintiff, knowing there was no probable cause and for the improper purpose of harassing, vexing, or annoying Plaintiff for what Kuc considered his “stupid” but lawful actions. 4. Termination of Criminal Proceedings in Favor of Plaintiff As to the last element, Defendants contend that Plaintiff did not prevail with regard to the criminal charges against him and that at least one of the charges was dismissed “only because Officer Shlosser did not get notice of the hearing and, therefore, was unable to proceed.” (Memorandum of Law in Support of Defendant’s Motion for Summary Judgment at 12.) Plaintiff contends that all of the charges were terminated in his favor, and the court agrees. Defendants, in the court’s opinion, misinterpret this last prong of the malicious prosecution claim. “[A]n accused [need] not endure a full trial and acquittal in order successfully to allege malicious prosecution.” Gouin v. Gouin, 249 F.Supp.2d 62, 72 (D.Mass.2003). Rather, “ ‘[criminal proceedings are terminated in favor of the accused by [a] discharge by a magistrate at a preliminary hearing.’ ” Id. (quoting Restatement (Second) of Torts, § 659). Plaintiff has satisfied that requirement here; the state trial court allowed his motion to dismiss the two criminal charges, explaining that the Commonwealth could not establish the elements of either charge. While Defendants are correct that the civil citation was dismissed because Shlosser was not prepared to proceed at the hearing, that proceeding was still terminated in his favor. See Chervin, 858 N.E.2d at 759 (“[F]avorable termination established by dismissal of proceedings because of failure to prosecute them” (citing Restatement (Second) of Torts, § 674 comment j)). Moreover, as best the court can determine, the civil citation does not form any basis of Plaintiffs malicious prosecution claim. In the end, it is inescapable that Plaintiff has brought forth sufficient evidence to defeat Defendants’ motion for summary judgment as to the malicious prosecution claim against Kuc in his individual capacity: the court, therefore, will deny Defendants’ motion in this respect. In turn, however, the court will also deny Plaintiffs cross-motion for summary judgment because the issues of probable cause and malice on Kuc’s part present factual questions which must be resolved by a jury. As to the other defendants, the court, for the reasons stated, will enter summary judgment in their favor on the claim. C. Abuse of Process (Count I) Count I of Plaintiffs complaint also includes an abuse of process claim. “In contrast to a claim for malicious prosecution, a claim under this theory requires proof neither of a termination in the plaintiffs favor, nor want of probable cause.” Fletcher v. Wagner, 221 F.Supp.2d 153, 155 (D.Mass.2002). “The elements of an abuse of process claim are that ‘process’ was used, for an ulterior or illegitimate purpose, resulting in damage.” Psy-Ed Corp. v. Klein, 459 Mass. 697, 947 N.E.2d 520, 534 (2011) (internal quotation marks omitted). “However, the ulterior purpose element is not satisfied merely by showing that a person commenced litigation knowing it was groundless.” Id. Nor is it satisfied by showing that the defendant acted with an improper motive of vexation, harassment, or annoyance. Id. at 534-35. “Rather, the ulterior purpose must be to gain some collateral advantage,” which “has been compared to extortion, in that the defendant has allegedly tried to extract some advantage by wrongful means.” Id. at 535 & n. 36; see also Fabre v. Walton, 436 Mass. 517, 781 N.E.2d 780, 783 (2002) (“[A]buse of process has been described as a form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money.” (internal quotation marks omitted)). Here again, Defendants argue that the Hadley Police Department is immune from this claim and that Hukowicz and Mason were not involved in instituting the criminal proceedings. They also argue that there is no evidence that Kuc sought the charges for any ulterior or illegitimate purpose so as to satisfy Plaintiffs claim. Plaintiff, all but conceding these points, has provided no developed counter-argument. Moreover, the court finds no evidence that Kuc or anyone else pursued the charges for an ulterior purpose of gaining some collateral advantage. Accordingly, the court will enter summary judgment in Defendants’ favor on this aspect of Count I. D. Conversion (Count II) In Count II of his complaint, Plaintiff asserts conversion claims for the confiscation of his bicycle and, subsequently, his camera. “The Supreme Judicial Court has ... endorsed the Restatement (Second) of Torts which defines conversion as ‘an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.’ Restatement (Second) of Torts § 222A.” Gouin, 249 F.Supp.2d at 76 (citing Third Nat. Bank of Hampden County, 388 Mass. 240, 446 N.E.2d 380, 383 (1983)). “Conversion is based upon the idea of an assumption by the defendant of a right of property or a right of dominion over the thing converted, which casts upon him all the risks of an owner, and it is therefore not every wrongful intermeddling with, wrongful asportation or wrongful detention of, personal property, that amounts to a conversion.” Spooner v. Manchester, 133 Mass. 270, 273 (1882). “[WJhether an act involving the temporary use, control or detention of property implies an assertion of a right of dominion over it, may well depend upon the circumstances of the case and the intention of the person dealing with the property.” Id. at 274; see also Cahaly v. Benistar Property Exchange Trust Co., Inc., 68 Mass.App.Ct. 668, 864 N.E.2d 548, 559 n. 18 (2007) (“Factors to be considered in determining the seriousness of the interference include the extent and duration of the defendant’s exercise of control; his intent to assert a right which is in fact inconsistent with the plaintiffs right of control; the defendant’s good faith or