Tvedten v. City of Boston et al
Filing
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Judge George A. OToole, Jr: OPINION AND ORDER entered granting 6 Motion to Dismiss; granting 20 Motion for Leave to File Amended Complaint. (Danieli, Chris)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-11291-GAO
TYLER TVEDTEN,
Plaintiff,
v.
CITY OF BOSTON, GEORGE CROWLEY, ANDREW POWERS, STEVEN SWEENEY, and
ROY HECHAVARRIA
Defendants.
OPINION AND ORDER
March 29, 2012
O’TOOLE, D.J.
The plaintiff, Tyler Tvedten, filed suit against defendants, Officer Powers, Officer
Crowley, Sergeant Sweeney, Lieutenant Hechavarria and the City of Boston, alleging violations
of his constitutional rights. The plaintiff also brought two claims against the City of Boston,
alleging liability under 42 U.S.C. § 1983 and liability under the Massachusetts Tort Claims Act
(“MTCA”), Mass. Gen. Laws ch. 258 §§ 1, et seq. The City of Boston has moved for dismissal
of both claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiff
has also moved to amend his Complaint, pursuant to Rule 15(a)(2) of the Federal Rules of Civil
Procedure.
I.
Background
The plaintiff alleges that on March 18, 2009, the Boston Police Department dispatched
officers Crowley, Powers and Sweeney to 16 Ashford Street, Boston, Massachusetts. Upon
arrival, the officers observed approximately one-hundred people in and outside the premises.
Sweeney looked through the front window, observed the plaintiff looking at the police officers,
and asked that he open the front door. 1 Sweeney entered the house, approached the plaintiff, and
asked him if he lived at the residence. The plaintiff reported that he did not, and Sweeney
responded, “We’ll see if that’s true.” The officers attempted to further question the plaintiff, and
he informed them that he chose to remain silent and that he wanted to speak with his lawyer.
The plaintiff was arrested for disorderly conduct. Powers made the arrest; Sweeney and
Crowley allegedly assisted in the arrest. 2 No other persons were arrested. The plaintiff was taken
to a police station, booked and processed. 3 Crowley prepared the police report and noted that the
plaintiff was a disorderly person. Crowley also signed the criminal complaint. The police report
and the arrest were allegedly approved by Hechavarria, Crowley’s supervisor. After spending
one night detained, the plaintiff was arraigned. The criminal charges were later dismissed.
The plaintiff alleges that his arrest and detention violated his constitutional rights as
guaranteed by the Fourth, Fifth and Fourteenth Amendments because the officers had not
observed any activity or behavior that would establish probable cause for his arrest.
II.
Motion to Amend
After the City’s motion to dismiss was filed, the plaintiff sought leave to amend his
Complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. The City opposes
this motion on the ground that it is futile because the Amended Complaint still does not state a
viable claim against the City.
1
Although the plaintiff does not allege whether or not he opened the door, the defendant’s
motion to dismiss suggests that he did not.
2
The plaintiff alleges that “the officers” restrained, handcuffed and placed him into a police
wagon, without specifying particular names. (Compl. ¶¶ 39-40, 42-43 (dkt. no. 18).).
3
The complaint alleges that “the officers” took the plaintiff to the police station, without
additional clarity with regard to which officers took him to the police station, or which officers
were present during the time in which the plaintiff was booked.
2
Rule 15 authorizes leave to amend to be freely given when “justice so requires.” Fed. R.
Civ. P. 15(a)(2). Here, the Amended Complaint alleges the same two causes of action against the
City. The City’s motion to dismiss addresses these claims, and the plaintiff’s opposition to that
motion does likewise. Further, to the extent there are a few new factual allegations in the
Amended Complaint, the City has addressed them in its opposition to the motion to amend.
Under the circumstances, the amendment can be allowed and the City’s motion also considered.
For these reasons, the plaintiff’s motion to amend is granted, and the Amended Complaint is
deemed filed and the operative statement of the plaintiff’s claims.
III.
Motion to Dismiss
A.
42 U.S.C. § 1983 Claim
To establish municipal liability under 42 U.S.C. § 1983 “a plaintiff must show that a
policy or custom of the city led to the constitutional deprivation alleged.” Santiago v. Fenton,
891 F.2d 373, 381 (1st Cir. 1989) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658
(1978)). A showing of “both the existence of a policy or custom and a causal link between that
policy and the constitutional harm,” is required to impute liability to a municipality. Santiago,
891 F.2d at 381. The municipal policy may either be an official policy articulated or adopted by
a decision-maker or an unofficial custom as evidenced by widespread action or inaction.
McElroy v. Lowell, 741 F. Supp. 2d 349 (D. Mass. 2010) (citing Fletcher v. Clinton, 196 F.3d
41, 55 (1st Cir. 1999)). Here, the plaintiff’s claim rests on an alleged official policy existent in
the Boston Police Department. No allegations of an unofficial custom are made in the Complaint.
Official policies may either be formal or informal. However, an official policy does not
require widespread practice. Pembaur v. Cincinnati, 475 U.S. 469, 481 (1986). See also Welch v.
Ciampa, 542 F.3d 927, 942 (1st Cir. 2008). Rather, an official policy may include “a specific
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decision or set of decisions designed to carry out such a chosen course of action.” Pembaur, 475
U.S. at 481, n.9 (internal quotations and citation omitted). Thus, isolated decisions may suffice if
they are made by individuals with decision-making authority. Id. at 481, 483. See also Welch,
542 F.3d at 942; Wilson v. Boston, 421 F.3d 45, 59 (1st Cir. 2005). Conversely, ‘“a municipality
cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.”’ Wilson, 421 F.3d at 59,
quoting Monell, 436 U.S. at 691 (emphasis in original).
Here, the plaintiff alleges that: (a) the actions of Crowley, Powers and Sweeney, in
arresting him without probable cause, “evidence[ ] a policy of unconstitutional behavior in the
Boston Police Department” (Am. Compl. ¶ 73.); (b) Crowley’s submission of a police report,
lacking a showing of probable cause, and Hechavarria’s approval of the police report “is
evidence of a policy of unconstitutional behavior in the Boston Police Department” (Compl. ¶
74.); (c) Crowley’s swearing of a criminal complaint, which did not recite probable cause for the
plaintiff’s arrest “is evidence of a policy of unconstitutional behavior in the Boston Police
Department” (Compl. ¶ 75.); and (d) the “defendant’s policies” violated his constitutional rights
(Compl. ¶ 76.).
The plaintiff’s Amended Complaint does not allege a viable § 1983 claim to trigger
municipal liability. The plaintiff’s Complaint fails to allege that the Boston Police Department
has an official policy permitting arrests for disorderly conduct without probable clause. The
plaintiff merely alleges that Crowley’s, Power’s, Sweeney’s and Hechavarria’s actions are
evidence of an unconstitutional policy within the Boston Police Department. Such an allegation
is not itself sufficient to present a plausible claim under § 1983. Moreover, although isolated
decisions by municipal employees may trigger liability under § 1983, the plaintiff does not allege
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that any of the police actors in relation to his arrest were officials with decision-making
authority. Likewise, the plaintiff does not allege that either Crowley or Hechavarria are decisionmakers with decision-making authority, whose decisions constitute official policy. Therefore, the
plaintiff is unable to sustain a § 1983 claim against the City of Boston.
B.
Massachusetts Tort Claims Act Claim
A municipality can be liable under § 2 of the MTCA for the negligence of employees,
including police officers, who were acting within the scope of their duty as employees. Lewis v.
Kendrick, 944 F.2d 949, 953 (1st Cir. 1991) (citation omitted); Mass. Gen. Laws ch. 258, § 2.
However, a municipality may not be held liable for intentional torts committed by employees. Id.
at § 10(c); see also Melendez v. City of Worcester, 870 F. Supp. 11, 14 (D. Mass. 1994). Such
excluded intentional torts include assault, battery, false imprisonment, intentional mental
distress, and malicious prosecution. Mass. Gen. Laws ch. 258, § 10(c).
The tortious acts of the individual officers alleged in the Amended Complaint all amount
to intentional torts. The attempted characterization of them as “negligence” is unavailing. Arrest
without probable cause, as alleged here, is an intentional act on the part of the arresting officers.
Additionally, the claims brought against the individual officers, which include assault and
battery, false imprisonment, intentional infliction of emotional distress and malicious
prosecution, further establish the intentionally tortuous nature of this conduct. The City is not
liable under the MTCA for the intentional torts of its employees.
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IV.
Conclusion
For the foregoing reasons, the plaintiff’s Motion (dkt. no. 20) to Amend the Complaint is
GRANTED and the City’s Motion (dkt. no. 6) to Dismiss the claims asserted against it is
likewise GRANTED. Those claims are dismissed.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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