Diggs v. Commonwealth of Massachusetts et al

Filing 37

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND ORDER. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARCUS B. DIGGS,
Plaintiff,
v.
TIMOTHY MILLS, et al.,
Defendants.

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Civil Action No. 10-11688-JLT

MEMORANDUM
July 21, 2011
TAURO, J.
I.

Introduction
Plaintiff Marcus B. Diggs brings suit against Defendants Timothy Mills, Peter Garabedian,

and Chris Adams, three Boston police officers, for allegedly violating his constitutional rights.
Presently at issue is Defendants’ Motion to Dismiss the Plaintiff’s Complaint [#29]. For the
following reasons, Defendants’ Motion to Dismiss is ALLOWED.
II.

Background1
Defendants Mills and Garabedian responded to a call for a person with a knife.2 When

Mills and Garabedian arrived on the scene, Defendant Adams and another Boston police officer
were already there, and Plaintiff was lying across the front seat of a car.3 A woman in the driver’s

1

Because the issues analyzed here arise in the context of a motion to dismiss, this court
presents the facts as they are related in Plaintiff’s Complaint, Trans-Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008), and construes those facts in the light most
favorable to Plaintiff, see Pettengill v. Curtis, 584 F. Supp. 2d 348, 362 (D. Mass. 2008) (quoting
Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007)).
2

See Compl., 2 [#1].

3

See Compl., 2 [#1].

seat of the car, Chi Wah Leung, was screaming to the nearby officers to get her infant son out of
the vehicle.4 It appeared to the police officers that Plaintiff was attempting to gain control of the
car.5 Garabedian and Adams ordered Plaintiff out of the vehicle and arrested him.6 During the
arrest, the officers twisted Plaintiff’s arm and slammed him to the ground.7
After Plaintiff was in custody, the officers spoke to the driver of a tour bus who had
witnessed the incident.8 According to the police report, the driver told the officers that Plaintiff
ran onto the tour bus with an open switch blade knife yelling, “Don’t touch me.”9 Plaintiff then
dropped the knife, ran off the bus, and lay down in the middle of the street.10
Leung told the officers that she saw Plaintiff lying in the street, so she pulled her vehicle to
the side of the road.11 Plaintiff then suddenly entered her vehicle and tried to take her car keys
from her and press the gas pedal.12 The police report also states that Leung was eventually able
to place her vehicle in park and hand the keys to a passerby.13

4

See Compl., 2 [#1].

5

See R. App. Evidence, Ex. 1, at 46 [#3].

6

See Compl., 20 [#1].

7

Compl., 20 [#1].

8

See Compl., 4 [#1].

9

See Compl., 4 [#1].

10

See Compl., 4 [#1].

11

See Compl., 4 [#1].

12

See Compl., 4 [#1].

13

See Compl., 5 [#1].
2

Defendant Mills filed a criminal complaint and Plaintiff was charged with carjacking,
assault with a dangerous weapon, and carrying a dangerous weapon.14 Plaintiff was arraigned on
August 11, 2008.15 Plaintiff was ordered detained because of probable cause that he violated his
probation.16 On September 19, 2008, Plaintiff’s probation was revoked.17
On November 18, 2008, the Commonwealth dismissed the charges of carjacking, assault
with a dangerous weapon, and carrying a dangerous weapon for lack of prosecution.18
On September 24, 2010, Plaintiff filed the Complaint, alleging that Defendants Mills,
Garabedian, and Adams violated Plaintiff’s constitutional rights through false arrest, false
imprisonment, perjury, malicious prosecution, abuse of process, excessive force, false reporting,
and conspiracy to falsify police reports.
III.

Discussion
Defendants move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss

Plaintiff’s complaint for failure to state a claim upon which relief can be granted and on the
ground that Defendants are entitled to qualified immunity.19
A.

False Arrest and False Imprisonment

As the First Circuit has explained, the “constitutionality of a warrantless arrest

14

See R. App. Evidence, 11 [#3].

15

See R. App. Evidence, 10, 11 [#3].

16

R. App. Evidence, 13 [#3].

17

See R. App. Evidence, 45 [#3].

18

See R. App. Evidence, Ex. 1, at 58 [#3].

19

Defs.’ Mot. Dismiss Pl.’s Compl., 1 [#29].
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‘depends . . . upon whether, at the moment the arrest was made, the officer[] had probable cause
to make it.’”20 The existence of probable cause “is gauged by an objective standard; as long as
the circumstances surrounding the event warrant the officer’s reasonable belief that the action
taken is appropriate, the arrest is justified.”21 In determining whether probable cause existed at
the time of an arrest, “police officers can justifiably rely upon the credible complaint by a victim to
support a finding of probable cause.”22
False imprisonment is “the ‘intentional and unlawful confinement of a person, either
directly or indirectly, of which the person confined is conscious or is harmed by such
confinement.’”23 Because unlawfulness is one element of false imprisonment, the existence of
probable cause to effectuate an arrest often determines whether a plaintiff was falsely

20

Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997) (quoting Beck v. Ohio, 379 U.S.
89, 91 (1964)).
21

Id. (citing Scott v. United States, 436 U.S. 128, 137–38 (1978)). If an arrest is
challenged on the basis that probable cause was lacking, the arrest is “‘deemed objectively
reasonable unless there clearly was no probable cause at the time the arrest was made.’” Sheehy
v. Town of Plymouth, 191 F.3d 15, 19 (1st Cir. 1999) (quoting Top v. Wolkowski, 994 F.2d 45,
48 (1st Cir. 1993)). Moreover, a police officer “constitutionally may arrest an individual if he ‘has
probable cause to believe that an individual has committed even a very minor offense . . . .’”
United States v. Matias-Maestres, 738 F. Supp. 2d 281, 295 (D.P.R. 2010) (quoting Atwater v.
City of Lago Vista, 532 U.S. 318, 354 (2001)).
22

Forest v. Pawtucket Police Dep’t, 377 F.3d 52, 57 (1st Cir. 2004) (citing B.C.R.
Transport Co., Inc. v. Fontaine, 727 F.2d 7, 10 (1st Cir. 1984)). Further, under the “fellowofficer” rule, law enforcement officials “are entitled to rely upon each other’s knowledge of facts
when forming the conclusion that a suspect has committed or is committing a crime.” United
States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997) (citing United States v. Ventresca, 380 U.S.
102, 111 (1965)).
23

Goddard v. Kelley, 629 F. Supp. 2d 115, 129 (D. Mass. 2009) (quoting Jonielunas v.
City of Worcester Police Dep’t, 338 F. Supp. 2d 173, 177 (D. Mass. 2004)).
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imprisoned.24
Here, Defendants Mills and Garabedian acted in an objectively reasonable manner and
with probable cause when they arrested Plaintiff. Defendants were responding to a 9-1-1 call
regarding a person with a knife.25 Further, when Defendants arrived on the scene, the driver of
the car, Leung, was screaming and appeared to be frightened, and Plaintiff appeared to be
attempting to take control of the car.26 Because Plaintiff appeared to be committing a crime and
because the safety of Leung, her child, and others were of concern, probable cause existed to
arrest Plaintiff.
Because the officers had probable cause to arrest Plaintiff, Defendants’ arrest and
imprisonment of Plaintiff was constitutional. The false arrest and false imprisonment claims
against Defendants therefore are dismissed.
B.

Perjury

Police officers are “absolutely immune from civil liability for perjured testimony.”27 For
that reason, the perjury claim against Mills and Garabedian is dismissed.
C.

Malicious Prosecution

The elements of a malicious prosecution claim are: “(1) commencement or continuation of

24

See Aldrich v. Town of Brookline, No. 06-10950, 2010 U.S. Dist. LEXIS 24790, at
*12 (D. Mass. Mar. 18, 2010) (“False imprisonment is a species of false arrest, based on an arrest
without probable cause.” (citing Goddard, 629 F. Supp. 2d at 129)).
25

See supra text accompanying note 2.

26

See supra text accompanying note 4–5.

27

Aldrich, 2010 U.S. Dist. LEXIS 24790, at *15 (citing Briscoe v. LaHue, 460 U.S. 325,
326 (1983)).
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a criminal proceeding against the eventual plaintiff at the behest of the eventual defendant; (2) the
termination of the proceeding in favor of the accused; (3) an absence of probable cause for the
charges; and (4) actual malice.”28
The Complaint is devoid of any facts to support such a claim. In response to a showcause order from this court,29 Plaintiff alleges that Mills acted with malice and that there was not
probable cause to support each element of the charged offenses.30 Because Mills had probable
cause to arrest Plaintiff,31 Plaintiff has failed to articulate sufficient facts to state a claim for
malicious prosecution. This claim is dismissed.
D.

Abuse of Process

An abuse of process claim requires a plaintiff to show “(1) that process [has been] used
(2) for an ulterior or illegitimate purpose, (3) resulting in damage to the plaintiff.”32
Here, Plaintiff has failed to allege conduct by any of Defendants that would establish an
abuse of process claim. The only mention of abuse of process in the Complaint is on the cover
page. Further, Plaintiff did not allege a wrongdoer for his abuse of process claim, and there was
probable cause to arrest Plaintiff. Plaintiff’s claim for abuse of process therefore is dismissed.

28

Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) (citing Correllas v. Viveiros, 410
Mass. 314, 318 (1991)).
29

See Mem. & Order, 21 [#8].

30

See Mot. “Dismiss” Certain Parties Civil Suite, 4–5 [#11].

31

See supra Part III.A.

32

Refuse & Envtl. Sys., Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 41 (1st Cir. 1991)
(citing Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 489 (1986)); see also
Ladd v. Polidoro, 424 Mass. 196, 198 (1997).
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E.

Excessive Force

To establish excessive force in violation of the Fourth Amendment, a plaintiff must show
that a “defendant’s actions in handcuffing [the plaintiff] were objectively unreasonable in light of
the circumstances and the facts known to the officer at the time.”33 The reasonableness of the
force “‘must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.’”34 In effectuating an arrest, a police officer may “use some degree
of physical coercion or threat thereof to effect” the arrest.35 Indeed, the “‘use of force is an
expected, necessary part of a law enforcement officer’s task of subduing and securing individuals
suspected of committing crimes.’”36
Here, Plaintiff falls short of stating an actionable claim for excessive force. His claim is
based on his allegation that Defendants Garabedian and Adams twisted his arm behind his back
and slammed him to the ground.37 Plaintiff does not allege any facts, however, that demonstrate
that Defendants were objectively unreasonable under the circumstances. Indeed, Defendants used
objectively reasonable force because they reasonably believed that Plaintiff was armed and posed a

33

Calvi v. Knox County, 470 F.3d 422, 428 (1st Cir. 2006) (citing Graham v. Connor,
490 U.S. 386, 397 (1989)).
34

Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007) (quoting Graham, 490 U.S. at 396).
Courts must pay “‘careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Id. (quoting Graham, 490 U.S. at 396).
35

Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 22–27 (1968)).

36

Jennings, 499 F.3d at 11 (quoting Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir.

37

See supra text accompanying note 7.

2002)).

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danger to the officers, the occupants of the car, and nearby civilians.38 Plaintiff has thus failed to
state a claim upon which relief may be granted, and his claim for excessive force is dismissed.
F.

False Reporting

The First Circuit has held that “the mere filing of false police reports, by themselves and
without more, [does] not create a right of action in damages under 42 U.S.C. § 1983.”39
Because the Complaint lacks an explanation of how the alleged false police report
constituted a constitutional violation, this claim is dismissed for failure to state a claim upon which
relief may be granted.
G.

Conspiracy to Falsify Police Reports

A civil rights conspiracy is “‘a combination of two or more people acting in concert to
commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of
which is an agreement between the parties to inflict a wrong against another or injury upon
another, and an overt act that results in damages.’”40 For a conspiracy claim, a plaintiff must

38

Other courts have held that police officers who have used force similar to the force used
against Plaintiff here did not use excessive force. See, e.g., Wertish v. Krueger, 433 F.3d 1062
(8th Cir. 2006) (affirming summary judgment in favor of a police officer on a plaintiff’s excessive
force claim where the plaintiff failed to cooperate with police by exiting his vehicle and the officer
pulled the plaintiff out of the vehicle, took him to the ground, and handcuffed him); Jackson v.
City of Bremerton, 268 F.3d 646 (9th Cir. 2001) (holding that a police officer had not used
excessive force where the officer pushed a potentially threatening plaintiff to the ground for the
purpose of handcuffing her, despite knowing of her preexisting back and shoulder injuries).
39

Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir. 1980) (internal citation omitted);
see also Shock v. Tester, 405 F.2d 852, 855 (8th Cir. 1969).
40

Santiago v. Fenton, 891 F.2d 373, 389 (1st Cir. 1989) (quoting Hampton v. Hanrahan,
600 F.2d 600, 620–21 (7th Cir. 1979)).
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prove both an agreement as well as an actual deprivation of a constitutional right.41
Here, Plaintiff’s Complaint alleges no such facts to demonstrate an agreement to violate
his constitutional rights. It is not even entirely clear who Plaintiff alleges the conspirators are.
The conspiracy claim against Mills and Garabedian is therefore dismissed because Plaintiff has
failed to state a prima facie claim.
H.

Qualified Immunity

Government officials performing discretionary functions generally are granted qualified
immunity—that is, they “are shielded 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.”42 An official is entitled to qualified immunity unless: (1) “the plaintiff’s
allegations, if true, establish a constitutional violation”; (2) “the constitutional right at issue was
clearly established at the time of the putative violation”; and (3) “a reasonable officer, situated
similarly to the defendant, would have understood the challenged act or omission to contravene
the discerned constitutional right.”43
Here, Plaintiff cannot meet the first requirement of pleading facts that show a
constitutional violation.44 As such, Defendants are entitled to qualified immunity and Plaintiff’s
claims against them are dismissed.

41

See Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988).

42

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citing Procunier v. Navarette, 434
U.S. 555, 565 (1978)).
43

Cox v. Hainey, 391 F.3d 25, 29–30 (1st Cir. 2004).

44

See supra Parts III.A–G.
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IV.

Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss the Plaintiff’s Complaint [#29]

is ALLOWED.
AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro
United States District Judge

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