Alicea v. Wilcox et al

Filing 58

Judge Richard G. Stearns: ORDER entered denying 49 Motion to Dismiss; granting 51 Motion to Dismiss (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 09-CV-12231-RGS
EUSEBIO ALICEA
v.
KYLE R. WILCOX;
JOHN J. ROMERO, CHIEF OF POLICE;
MICHAEL SULLIVAN, MAYOR;
CITY OF LAWRENCE
MEMORANDUM AND ORDER ON DEFENDANTS’
MOTIONS TO DISMISS
April 28, 2011
STEARNS, D.J.
Although filed on the eve of trial, the court will consider the motions to dismiss
filed by Chief John Romero and former Mayor Michael Sullivan. As plaintiff
acknowledges, by reason of a calendering oversight, the filing of the motions is not
precluded by the court’s scheduling order. The standard applied by a federal district
court in reviewing a motion to dismiss since the overruling of Conley v. Gibson, 355
U.S. 41 (1957), has by now become mundane. A complaint must allege “a plausible
entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). “While
a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions, and a formulaic recitation of a cause
of action’s elements will not do.” Id. at 555 (internal citations omitted). See also
Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (dismissal for failure to state a
claim is appropriate if the pleadings fail to set forth “factual allegations, either direct
or inferential, respecting each material element necessary to sustain recovery under
some actionable legal theory.”) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515
(1st Cir. 1988)). The instant Complaint is not a surgical instrument by any means, but
it does make clear that Chief Romero and Mayor Sullivan are named as defendants
individually on a theory of supervisory liability.
A supervisory official cannot be held vicariously liable under section 1983 on a
theory of respondeat superior. Monell v. Dept. of Soc. Servs. of New York, 436 U.S.
658, 694 n.58 (1978); City of Canton v. Harris, 489 U.S. 378, 385 (1989). “Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 129 S. Ct. 1934, 1948 (2009). A
supervisor, in other words, can be held liable “only on the basis of her own acts or
omissions.” Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir. 1989).
“The case law speaks of the necessity of showing an affirmative link, whether
through direct participation or through conduct that amounts to condonation or tacit
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authorization.” Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999). Thus, a
supervisor who implements an unconstitutional policy, or who engages in a custom or
practice that causes a constitutional injury, or who displays a reckless or callous
indifference to repeated acts of constitutional misconduct on the part of his
subordinates, is subject to liability under section 1983. Maldonado-Denis v. CastilloRodriguez, 23 F.3d 576, 581-582 (1st Cir. 1994). “[E]ven if a supervisor lacks actual
knowledge of censurable conduct, he may be liable for the foreseeable consequences
of such conduct if he would have known of it but for his deliberate indifference or
willful blindness, and if he had the power and authority to alleviate it.” Id. at 582. “To
demonstrate deliberate indifference a plaintiff must show (1) a grave risk of harm, (2)
the defendant’s actual or constructive knowledge of that risk, and (3) his failure to take
easily available measures to address the risk.” Camilo-Robles v. Hoyos, 151 F.3d 1,
7 (1st Cir. 1998). See Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995)
(supervising officer knew of and acquiesced in the use of excessive force by officers
executing a search warrant); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir.
1985) (chief habitually failed to discipline officers who improperly resorted to deadly
force); Dobos v. Driscoll, 404 Mass. 634, 648-650 (1989) (supervisors knew or should
have known of a state trooper’s violent propensities).
“[D]eliberate indifference alone does not equate with supervisory liability; a
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suitor also must show causation.” Camilo-Robles, 151 F.3d at 7. A plaintiff can
establish the necessary causal link “if there exists a known history of widespread abuse
sufficient to alert a supervisor to ongoing violations.” Maldonado-Denis, 23 F.3d at
582. See Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 49 (1st Cir. 1999) (rogue
officer had been disciplined thirty times for abusive conduct and had six times been
recommended for dismissal from the force). As is the case with municipal liability in
general, without a showing of an underlying constitutional violation there can be no
assignment of liability. Nieves v. McSweeney, 241 F.3d 46, 50 (1st Cir. 2001).
A perusal of the Complaint with respect to Chief Romero discloses factual
allegations sufficient to survive the motion to dismiss. According to the Complaint: (1)
Officer Wilcox had been convicted of the criminal assault and battery of two other
detainees three weeks prior to the alleged assault on plaintiff Alicea; (2) Chief Romero
was aware of the fact that Wilcox was the subject of numerous civilian complaints and
lawsuits alleging the excessive use of force, including four of recent vintage filed in the
United States District Court; (3) the Department’s Use of Force Policy vested
responsibility in Chief Romero to oversee its implementation and enforcement; and (4)
despite that responsibility Chief Romero neither enforced the Policy nor investigated
allegations of violations by the officers under his command, including Wilcox. This is
enough for pleading purposes to satisfy Fed. R. Civ. P. 8.
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With respect to former

Mayor Sullivan, however, the only substantive allegation is that as chief executive
officer under the City Charter, Mayor Sullivan was “responsible for the general
supervision and control of [the City’s] various agencies and departments” and therefore
should have known of and corrected abuses of civilians by City police officers.
Complaint ¶ 109. This is an allegation of vicarious liability and nothing more. It is
plainly insufficient to survive scrutiny under the Twombly-Iqbal standard.
ORDER
For the foregoing reason, the motion to dismiss is DENIED with respect to Chief
Romero. It is, however, ALLOWED with respect to Mayor Sullivan.
SO ORDERED.
/s/ Richard G. Stearns
________________________________
UNITED STATES DISTRICT JUDGE

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