Semedo v. Elliott et al

Filing 38

Judge Rya W. Zobel: ORDER entered denying 21 Motion for Summary Judgment. A pretrial conference is set for 7/31/12 at 2:30 p.m. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-11976-RWZ

JOSE SEMEDO
v.
LON L. ELLIOTT
and CITY OF BROCKTON

ORDER
June 28, 2012
ZOBEL, D.J.
Plaintiff Jose Semedo, a black man of Cape Verdean descent, brings this action
against former Brockton police officer Lon Elliott (“Elliott”) and the City of Brockton (“the
City”) under 42 U.S.C. § 1983 as a result of his arrest by Elliott on November 20, 2007.
He alleges that Elliott violated his rights under the Fourth and Fourteenth Amendments
to the U.S. Constitution because the arrest was unlawful and racially motivated.1 He
further alleges that the City is liable because it failed to adequately train, discipline, or
supervise Elliott, thereby demonstrating deliberate indifference to plaintiff’s rights and a
policy of tolerating discriminatory behavior by its officers that was the moving force
behind the alleged constitutional deprivation.2
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In addition to claims under 42 U.S.C. § 1983, plaintiff sues Elliott for violation of the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H-I, abuse of process, and false
imprisonment. Compl. (Docket #1). The City has filed a cross-claim against Elliott for indemnification.
Def. City of Brockton’s Am. Answer and Cross-Cl. (Docket # 6).
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See Monell v. Dep’t of Soc. Servs., 426 U.S. 658, 694-95 (1978) (holding that a municipality
may be liable under section 1983 only if by official policy or custom the municipality directly causes the
alleged constitutional deprivation), and City of Canton v. Harris, 489 U.S. 378, 388 (1989) (holding that

Discovery is closed. The City has moved for summary judgment (Docket # 21),
which plaintiff opposes. Elliott, who is not represented by counsel, has neither
responded to the complaint nor to the City’s motion. Because the undisputed record
requires the court to draw inferences which are inappropriate on summary judgment,
the motion is denied.
I. Background
It is undisputed that Elliott, accompanied by three other Brockton Police
Department (“BPD”) officers, arrested plaintiff while he was at work on what Elliott
claimed was an outstanding warrant for larceny of a bad check. Pl. Am. Resp. to Def.
City of Brockton’s Statement of Undisputed Material Facts (hereinafter, “Pl. Resp.
SUMF”) ¶¶ 3, 5, 6, 30. Plaintiff claims that he had resolved the warrant issue at
Taunton District Court the day before and told Elliott as much, but to no avail. Id. ¶¶ 3334. During the arrest, Elliott told the plaintiff: “Listen to me, you f.....g African Jungle
Bunny. You owe somebody money . . . you people are destroying my City.” Id. ¶ 8.
Elliott also made ape-like gestures while behind plaintiff’s back, by scratching under his
armpits and jutting out his lower lip. Id. ¶ 9. On the day of his arrest or shortly
thereafter, plaintiff verbally complained about Elliott’s conduct to the BPD, id. ¶ 11; in
January 2008, he filed a written complaint with the BPD’s Internal Affairs Department
(“IAD”), id. ¶ 12. The latter resulted in a five-day suspension of Elliott and, after a
hearing, his termination from the BPD in January 2009. Id. ¶¶ 19-28. Plaintiff filed this

inadequate training may serve as the basis for section 1983 municipal liability only where it amounts to
deliberate indifference to the rights of persons with whom the police come into contact).

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case on November 16, 2010.
II. Analysis
The City argues that summary judgment is warranted because there is an
“absence of evidence” to support plaintiff’s claims. Def. City of Brockton’s Mem. Supp.
Mot. Summ. J. 3 (Docket # 22) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986) (holding that the party moving for summary judgment may prevail by showing
that there is an absence of evidence to support the nonmoving party’s case)). It argues
that the evidence proffered by plaintiff does not establish that the City had a policy or
custom of deficient training, discipline, or supervision of its police officers
such that it was deliberately indifferent to the constitutional rights of its inhabitants,
much less that such policy or custom caused plaintiff’s harm.
Plaintiff strenuously disagrees, pointing to a list of 200 complaints against
individual officers filed with the BPD between 1996 and 2009.3 See Pl. Resp. SUMF ¶
59 and exhibits cited therein. The list was produced by the City in response to one of
plaintiff’s interrogatories, which requested that the City provide any IAD “annual or
internal reports, summaries or statistical information including but not limited to:
complaints of misconduct, harassment, discrimination, abuse of process, conduct
unbecoming, and any other administrative complaint from January 1, 1996 through
Present.” (Docket # 35 Am. Ex. R). Plaintiff also cites to twelve additional complaints

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The list is mostly handwritten and difficult to decipher. The number of complaints varies by
year. According to plaintiff, the list includes complaints against thirty-one officers filed in 1996, twentyone in 1997, nineteen in 1998, fifteen in 1999, twenty-two in 2000, five in 2001, sixteen in 2002, twelve in
2003 and in 2004, eleven in 2005 and in 2006, four in 2007, seven in 2008, and thirty-four in 2009. The
City does not dispute these numbers.

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that contain specific allegations of racial discrimination against twenty-nine BPD
officers. See Pl. Resp. SUMF ¶¶ 59-71 and exhibits cited therein. Three of the twelve
are court proceedings,4 of which the court may take judicial notice. Fed. R. Evid. 201;
Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) (“It is well-accepted that federal
courts may take judicial notice of proceedings in other courts if those proceedings have
relevance to the matters at hand.”). The other complaints were lodged with IAD5 and
require the drawing of inferences about the seriousness and nature of the conduct
alleged and the adequacy of the BPD’s response. Plaintiff asks the court to view the
totality of incidents as widespread, systemic, and clear evidence that the BPD had

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Owens v. Baez et al., No. 00-cv-11140-WGY (D. Mass.) (case settled; stipulation of dismissal
with prejudice and without costs entered on June 4, 2001); Summers et al. V. City of Brockton et al., No.
09-cv-12006-DJC (D. Mass.)(case settled; stipulation of dismissal entered with prejudice and without
costs on Feb. 2, 2012); Davila-Lynch et al. v. City of Brockton et al., No. 09-cv-10817-RGS (D. Mass.)
(case is active; jury trial currently set for July 30, 2012).
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Docket # 31 Ex. E (2009 complaint by Jaime Ward officers alleging that officers referred to
“you kind of people” during arrest);
id. Ex. G (March 20, 2000 complaint by Aafaque Akhter alleging that an officer acted in a biased
manner towards him while the officer responded to a neighbor’s call in 2008. After investigation, BPD
responded with a June 21, 2001, letter informing complainant that “we are unable to prove or disprove
the officer acted in a partial, bias [sic] or unprofessional manner.”);
id. Ex. H (April 2000 email complaint from Shervonne Christmas alleging that she and her fiancé
(both African-American) were treated differently than a white man, and in a rude an offensive manner by
BPD officer. Complaint was forwarded to the BPD Chief Paul Studenski by Plymouth County District
Attorney Michael Sullivan);
id. Ex. I (complaints by minorities Mario K. Jack (May 2001), Raymond Campbell (July 2001),
Robert Jackson (Nov. 2001), Louis Johnson (Nov. 2001), and Filipe Teixeira (May 2002) alleging racial
profiling or racist behavior by BPD officers);
id. Ex. J (December 2002 complaint by Marie Narcisse alleging that, after a traffic stop, BPD
officer rolled down window, started laughing and said, “Happy birthday, f.....g Haitian.” BPD responded
with March 26, 2003, letter informing Ms. Narcisse that the officer was “informed such behavior is
unacceptable conduct and any substantiation of future behavior of this nature may result in disciplinary
action.”);
id. Ex. L. (July 2007 complaint by Stanley Fombuh alleging that he was falsely arrested and
discriminated against because of his race. BPD responded with an August 16, 2007 letter informing Mr.
Fombuh that, based on arrest report, the officers had “more than enough probable cause” to arrest him,
and that the officer involved denied using swear words, but was reminded that use of swear language is
against the BPD’s rules and regulations).

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serious issues with discrimination, racial profiling, and other civil rights violations by its
officers, and consciously failed to implement additional training or discipline in
response. The City, on the other hand, insists that these complaints do not, as a matter
of law, establish deliberate indifference but rather are merely conclusory allegations of
a custom, practice or policy of civil rights violations by BPD officers.
Either way, the court must draw inferences regarding the seriousness and
pervasiveness of the offenses alleged, which are inappropriate on a motion for
summary judgment. See Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695
F.2d 1294, 1296-97 (11th Cir. 1983) (“If reasonable minds might differ on the
inferences arising from undisputed facts, then the court should deny summary
judgment.”); cf. In re Varrasso, 37 F.3d 760, 763 (1st Cir. 1994) (vacating district court’s
grant of summary judgment in bankruptcy action, noting “summary judgment is
inappropriate if inferences are necessary for the judgment and those inferences are not
mandated by the record.”). Even if the court were to draw such inferences, summary
judgment would be improper given the court’s obligation to draw all reasonable
inferences in favor of the non-moving party. Griggs-Ryan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990).
It is likewise inappropriate for the court to determine that plaintiff cannot prove
causation, since causation and deliberate indifference are often intertwined. Young v.
City of Providence ex rel. Napolitano, 404 F.3d 4, 26 (1st Cir. 2004).
The motion is denied.

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June 28, 2012
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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