Strahan v. Stewart et al

Filing 31

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

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RICHARD MAX STRAHAN,

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Plaintiff,
v.
KENISHA STEWART and NUMEROUS JOHN
DOES,
Defendants.

Civil Action No. 10-12278-JLT
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MEMORANDUM
June 13, 2011
TAURO, J.
I.

Introduction
Plaintiff Richard Max Strahan brings this suit against Defendant Kenisha Stewart, a

Boston Police officer, for alleged violations of the Civil Rights Act, false arrest, and “tortious
destruction of property.” Presently at issue are Plaintiff’s Motion to Compel Edward Davis to
Comply with Subpoena [#17] and Defendant’s Motion to Dismiss Plaintiff’s Complaint [#21].
For the following reasons, Plaintiff’s Motion to Compel is DENIED and Defendant’s Motion to
Dismiss is ALLOWED.
II.

Background1
On August 2, 2008, Plaintiff was taking photographs near the Boston Common.2 While
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

Verified Compl. Declaratory, Injunctive, Compensatory & Punitive Relief & Req. Jury
Trial, 1 [#1] [hereinafter Compl.].

he was taking photographs, Plaintiff photographed Defendant.3 Defendant “approached [Plaintiff]
and told him to stop taking pictures . . . of her.”4 Plaintiff took several photographs of Defendant
“to document her threat” and then went to a pizza shop.5 Plaintiff saw Defendant outside the
pizza shop, and although Defendant did not speak to Plaintiff, Plaintiff fled to a nearby movie
theater.6 Outside the movie theater, Plaintiff “stopped at the entrance to confront” Defendant,
who had followed Plaintiff to the movie theater.7 At that point, a “bicycle riding Boston police
employee” approached Plaintiff and told him that he was under arrest.8 At one point, Defendant
said, “‘I want those pictures . . . Its [sic] inappropriate that he took pictures of me.’”9 The Boston
Police employee, and other such employees, told Plaintiff to erase the photograph that he had
taken of Defendant.10 Plaintiff erased several photographs and then Defendant and the other
Boston Police employees ordered Plaintiff to leave the area.11
After the incident, Plaintiff filed a complaint with the Internal Affairs Division (“IAD”) of
the Boston Police Department (“BPD”).12

3

Compl. ¶ 11 [#1].

4

Compl. ¶ 11 [#1].

5

Compl. ¶¶ 11–12 [#1].

6

Compl. ¶¶ 12–14 [#1].

7

See Compl. ¶ 14 [#1].

8

Compl. ¶ 14 [#1].

9

Compl. ¶ 16 [#1].

10

Compl. ¶¶ 15, 16 [#1].

11

Compl. ¶ 17 [#1].

12

Compl. ¶ 20 [#1].
2

Plaintiff asserts five counts against Defendant: (1) a “[v]iolation of the Civil Rights Act
by . . . [v]iolating the Plaintiff’s Fourth Amendment Right Against Unlawful Seizure of His Body
and Property in Falsely Arresting Him and then Destroying his Property”;13 (2) a “[v]iolation of
the Civil Rights Act by . . . violati[ng] . . . the Fourteenth Amendment’s Due Process and Equal
Treatment [sic] Provisions in . . . Illegally Seizing [Plaintiff’s] Property and Arresting him without
the required process”;14 (3) a “[v]iolation of the Civil Rights Act by . . . [v]iolating the Plaintiff’s
First Amendment Rights to Peacefully Photograph Members of the Public, Employees of the
BPD, and Events in the Outdoor Public Places in Boston”;15 (4) false arrest;16 and (5) “Tortious
Destruction of Personal Property.”17
III.

Discussion
A.

Plaintiff’s Motion to Compel

Plaintiff seeks an order from this court compelling Boston Police Commissioner Edward
Davis to comply with the subpoena that Plaintiff served on him.18 Plaintiff concedes that Davis
responded to Plaintiff’s subpoena “by mailing [Plaintiff] a set of documents.”19

13

Compl., 10 [#1].

14

Compl., 11 [#1].

15

Compl., 11 [#1].

16

Compl., 13 [#1] (mistakenly labeling the fourth count of the complaint as “COUNT

17

Compl., 13 [#1] (mistakenly labeling the fifth count of the complaint as “COUNT IV”).

18

Pl.’s Mot. Compel Edward Davis Comply Subpoena, 1 [#17] [hereinafter Mot.

III”).

Compel].
19

Mot. Compel, 1 [#17].
3

As Davis makes clear in his opposition to Plaintiff’s Motion to Compel, Davis has
complied with the subpoena “to the fullest extent permitted by the law.”20 The information that
Plaintiff seeks in his Motion either was not requested in the subpoena21 or has already been
produced to Plaintiff,22 with one exception.
The sole document withheld from Plaintiff is a document from IAD’s file on the incident.23
That document, which is the IAD investigator’s summary, is statutorily protected because it is
“investigatory material[] necessarily compiled out of the public view by law enforcement or other
investigatory officials the disclosure of which material[] would probably so prejudice the
possibility of effective law enforcement that such disclosure would not be in the public interest.”24
Even without that document, Davis produced to Plaintiff “all documents used to conduct the
investigation.”25
For these reasons, this court deems it unnecessary to compel the production of any
additional materials.
B.

Defendant’s Motion to Dismiss

Defendant moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss

20

Edward Davis’ Opp’n Pl.’s Mot. Compel, 1 [#18] [hereinafter Davis’ Opp’n]; see also
Letter from Michelle K. Hinkley, Assistant Corp. Counsel, City of Bos. Law Dep’t, to Judge
Joseph L. Tauro, U.S. Dist. Judge for the Dist. of Mass. (June 1, 2011) [#29].
21

See Davis’ Opp’n ¶¶ 1, 2, 4 [#18].

22

See Davis’ Opp’n ¶ 3 [#18].

23

See Davis’ Opp’n ¶ 3 [#18].

24

G.L. ch. 4, § 7(26)(f).

25

Davis’ Opp’n ¶ 3 [#18].
4

Plaintiff’s complaint for failure to state a claim upon which relief can be granted.26
1.

Count One

Plaintiff has failed to allege sufficient facts to demonstrate that Defendant unlawfully
seized Plaintiff or Plaintiff’s property in violation of the Fourth Amendment.
The Fourth Amendment protects people from unreasonable seizures by police officers.27
In this context, the word “seizure” “connote[s] not merely grasping, or applying physical force to,
the animate or inanimate object in question, but actually bringing it within physical control.”28
The Supreme Court has held that a pursuit by a police officer of a fleeing individual does not
amount to a seizure under the Fourth Amendment until the individual is actually apprehended.29
A person has been “seized” for Fourth Amendment purposes “‘only if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave.’”30 Police officers “may approach citizens in public spaces and ask them questions
without triggering the protections of the Fourth Amendment.”31 A seizure only occurs if an
“officer, by means of physical force or show of authority, has in some way restrained the liberty of

26

Def.’s Mot. Dismiss Pl.’s Compl., 1 [#21].

27

See U.S. Const. amend. IV (“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, . . .
but upon probable cause, supported by oath or affirmation, and particularly describing . . . the
persons or things to be seized.”).
28

California v. Hodari D., 499 U.S. 621, 624 (1991).

29

Id. at 626; see County of Sacramento v. Lewis, 523 U.S. 833, 842–44 (1998).

30

Hodari D., 499 U.S. at 628 (quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980)).
31

United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997) (citing Florida v. Bostick, 501
U.S. 429, 434 (1991); United States v. Manchester, 711 F.2d 458, 460 (1st Cir. 1983)).
5

a citizen.”32
A seizure of property under the Fourth Amendment occurs if “there is some meaningful
interference with an individual’s possessory interests in that property.”33 That is, “a seizure
deprives the individual of dominion over his or her . . . property.”34
Plaintiff was not seized when Defendant followed Plaintiff to the pizza shop. From the
facts that Plaintiff alleges, this court can conclude at most that Defendant may have been
following Plaintiff and watching him. Such conduct does not rise to the level of a seizure,
because Defendant at no time restrained Plaintiff’s liberty.35
Nor was Plaintiff seized in front of the movie theater. Plaintiff stopped in front of the
movie theater in order to confront Defendant—Defendant did not order Plaintiff to stop.36
Further, Defendant actually told Plaintiff to leave the area.37 No reasonable person would feel
unable to leave if a police officer in fact told him to leave.38
Finally, Plaintiff’s property was not unlawfully seized. In Count One, Plaintiff claims that
his digital camera was confiscated and that he was “coerc[ed] and intimidat[ed] . . . into
destroying his own property.”39 But Plaintiff fails to allege any facts that indicate that Defendant
32

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

33

United States v. Jacobsen, 466 U.S. 109, 113 (1984).

34

Horton v. California, 496 U.S. 128, 133 (1990) (citing Jacobsen, 466 U.S. at 113).

35

See Terry, 392 U.S. at 19 n.16.

36

See Compl. ¶ 17 [#1].

37

See Compl. ¶ 17 [#1].

38

See Hodari D., 499 U.S. at 628.

39

Compl. ¶ 23 [#1].
6

confiscated his camera or coerced him into deleting photographs. Plaintiff alleges only that
Defendant said that she wanted Plaintiff to erase the photographs of her.40 At no time did she
deprive Plaintiff of dominion over his camera,41 nor did she coerce him into deleting the
photographs.
2.

Count Two

Plaintiff has failed to state a claim for alleged violations of his Fourteenth Amendment
rights to due process and equal protection.
The Fourteenth Amendment of the Constitution provides that no state may deprive any
person of property without due process of law.42 But an “unauthorized intentional deprivation of
property by a state employee does not constitute a violation of the procedural requirements of the
Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the
loss is available.”43 For that reason, if state remedies are adequate to compensate an individual
whose property was taken by a state actor, that individual may not sue for damages under 42
U.S.C. § 1983.44 In the cases in which a plaintiff fails to state whether an adequate post-

40

See supra text accompanying note 9.

41

See Horton, 496 U.S. at 133.

42

U.S. Const. amend. XIV (“[N]or shall any state deprive any person of life, liberty, or
property, without due process of law . . . .”).
43

44

Hudson v. Palmer, 468 U.S. 517, 533 (1984).

O’Neill v. Baker, 210 F.3d 41, 50 (1st Cir. 2000) (citing Lowe v. Scott, 959 F.2d 323,
340 (1st Cir. 1992)); see Chongris v. Bd. of Appeals, 811 F.2d 36, 40 (1st Cir. 1987) (“Where
state procedures—though arguably imperfect—provide a suitable form of predeprivation hearing
coupled with the availability of meaningful judicial review, the fourteenth amendment guarantee of
procedural due process is not embarrassed.” (citing Creative Env’ts, Inc. v. Estabrook, 680 F.2d
822, 829–30 (1st Cir. 1982)); Alton Land Trust v. Alton, 745 F.2d 730, 732 (1st Cir. 1984)
(“Appellants were not denied due process. New Hampshire law provided them with the right to
7

deprivation remedy is available under state law, the First Circuit has “decline[d] to address the
question.”45 Nonetheless, this court notes that in Massachusetts, post-deprivation remedies, such
as the state tort of conversion and other common-law remedies, exist to compensate individuals
for intentional and negligent deprivations of property by state employees.46
Here, Plaintiff has not alleged a due process violation. Because Plaintiff makes no
allegation that the state cannot provide an adequate post-deprivation remedy, and because such
remedies exist, Plaintiff has failed to state a claim upon which relief can be granted.
Nor has Plaintiff alleged an equal protection violation. A plaintiff may assert an equal
protection claim under the Fourteenth Amendment if “the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.”47 Plaintiff has not alleged that he was treated differently from others
similarly situated. As such, Plaintiff has failed to state a claim upon which relief may be granted.
Finally, Plaintiff has failed to state a conspiracy claim.48 To plead a conspiracy under 42
appeal to the courts from the Board’s denial of a permit. When they appealed, their contentions
were heard and, indeed, relief was ordered in their favor.”).
45

Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 33 (1st Cir. 1996) (citing Rumford
Pharmacy, Inc. v. City of E. Providence, 970 F.2d 996, 999 (1st Cir. 1992); Monahan v.
Dorchester Counseling Ctr., Inc., 961 F.2d 987, 994 n.7 (1st Cir. 1992)); see Triplett v. Davis,
No. 95-1805, 1996 U.S. App. LEXIS 10459, at *2–3 (1st Cir. May 7, 1996) (citing RomeroBarcelo, 75 F.3d at 33).
46

Davis v. Schifone, 185 F. Supp. 2d 95, 102 (D. Mass. 2002) (Tauro, J.).

47

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City Bridge Co. v.
Dakota Cnty., 260 U.S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Comm’n of Webster Cnty.,
488 U.S. 336 (1989)).
48

The title of Count Two reads as follows: “Defendants [sic] Violation of the Civil Rights
Act by their violation of the Fourteenth Amendment’s Due Process and Equal Treatment
Provisions in their Illegally Seizing His Property and Arresting him without the required lawful
8

U.S.C. § 1985(3), a plaintiff must allege four elements:
(1) a conspiracy; (2) a conspiratorial purpose to deprive a person or class of persons of
equal protection or of equal privileges and immunities; (3) an overt act in furtherance of
the conspiracy; and (4) either injury to person or property or deprivation of a
constitutionally protected right or privilege.49
Additionally, “there must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirator’s action.”50
Plaintiff has failed to assert sufficient facts to support a § 1985(3) conspiracy. The
complaint lacks any facts that indicate that there was an agreement to arrest Plaintiff without
probable cause.51 Plaintiff also fails to allege a class-based discriminatory animus. Count Two
must therefore be dismissed in its entirety.
3.

Count Three

Plaintiff has failed to allege sufficient facts to sustain his claim that Defendant violated
Plaintiff’s First Amendment rights.
To demonstrate a First Amendment violation under § 1983, a plaintiff must allege that the

process.” Compl., 11 [#1]. Within the explanation of Count Two, however, Plaintiff refers to a
“conspiracy to stop [Plaintiff] and other members of the Public from photographing [BPD
employees] in the outdoor Public spaces in Boston.” Compl. ¶ 27 [#1]. Because Plaintiff is pro
se, this court is mindful of the liberal standard with which it must read Plaintiff’s pleadings, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), and thus treats Count Two as including a conspiracy
claim against Defendant.
49

Columbus v. Biggio, 76 F. Supp. 2d 43, 49 (D. Mass. 1999) (Tauro, J.) (citing Aulson
v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1999)).
50

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Griffin requires plaintiffs to “allege
facts showing that (1) the defendants conspired against them because of their membership in a
class, and (2) the criteria defining the class are invidious.” Aulson, 83 F.2d at 4.
51

See Compl. ¶ 27 [#1] (“As part of their conspiracy they have agreed to arrest [Plaintiff]
and others without probable cause and for violation of non-existant [sic] statutes.”).
9

defendant’s actions resulted in a chilling or intimidation of the plaintiff’s exercise of those First
Amendment rights.52 To demonstrate a § 1983 claim of retaliation for First Amendment activity,
“a plaintiff must first show ‘that his conduct was constitutionally protected, and that this conduct
was a “substantial factor” or . . . a “motivating factor”’ for the defendant’s retaliatory decision.”53
Additionally, a plaintiff must demonstrate “subsequent injury in any sort of retaliation action.”54
Here, Plaintiff has failed to allege a First Amendment violation. Defendant’s conduct
could not have resulted in a chilling of Plaintiff’s First Amendment rights, because after Defendant
told Plaintiff to stop taking photographs, Plaintiff took additional photographs.55 Further, Plaintiff
filed a complaint with the IAD after the incident.56 Plaintiff was clearly undeterred by Defendant’s
conduct.57
Plaintiff has also failed to allege properly a § 1983 claim of retaliation for First
Amendment activity. Plaintiff claims that Defendant and other BPD employees “threatened to
arrest [Plaintiff] as a retaliation to prevent him from documenting his destruction of his property

52

See Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989).

53

Powell v. Alexander, 391 F.3d 1, 17 (1st Cir. 2004) (alteration in original) (quoting Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
54

Hartman v. Moore, 547 U.S. 250, 259 (2006) (citing Crawford-El v. Britton, 523 U.S.
574, 593 (1998); Mt. Healthy, 429 U.S. at 285–87).
55

See Compl. ¶ 11 [#1].

56

Compl. ¶ 20 [#1].

57

See Willoughby v. Town of Tisbury, 750 F. Supp. 2d 374, 381 (D. Mass. 2010) (Tauro,
J.) (holding that the plaintiff’s First Amendment rights had not been violated where the plaintiff
“effectively told one . . . police officer[] that his speech would not be chilled” and “repeatedly
complained to . . . the . . . police”).
10

on 2 August 2008 and other acts of theirs on that day that they did not want documented.”58 But
Plaintiff does not allege any of the following: that Defendant specifically threatened to arrest
Plaintiff; that Defendant in fact arrested Plaintiff; or that Defendant threatened Plaintiff with
violence; or that Plaintiff was injured as a result of Defendant’s alleged retaliation.59 For these
reasons, Count Three fails to state a claim.
4.

Count Four

Plaintiff has failed to state a claim for false arrest. One “necessary element” of a false
arrest claim is an illegal arrest.60 Because Plaintiff has not alleged that Defendant arrested
Plaintiff, this claim fails.
5.

Count Five

Plaintiff has failed to state a claim for tortious destruction of property because
Massachusetts does not recognize a tort named “Tortious Destruction of Personal Property.”61
If this court interprets Count Five liberally, as it must,62 to assert a claim for conversion
against Defendant, the claim still fails. A claim for conversion “require[s] that a defendant be
proved to have ‘intentionally or wrongfully exercised acts of ownership, control or dominion over

58

Compl. ¶ 30 [#1].

59

See Hartman v. Moore, 547 U.S. at 259.

60

E.g., Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 12 (1st Cir. 2004) (citing Mann v.
Cannon, 731 F.2d 54, 62 (1st Cir. 1984)).
61

Compl., 13 [#1].

62

See Haines, 404 U.S. at 520.
11

personal property to which he has no right of possession at the time.’”63
Here, Plaintiff complains that Defendant “destroyed . . . [Plaintiff’s] pictures of Defendant,
his purchased slices of pizza, and caused sever [sic] injury to his Nikon digital camera.”64 As to
the photographs of Defendant, Plaintiff has not alleged that Defendant herself destroyed the
photographs or coerced Plaintiff to destroy the photographs.65 Additionally, Plaintiff has not
asserted specific allegations anywhere in his complaint as to how the pizza was destroyed or how
the camera was injured. For these reasons, Plaintiff has not properly pled a claim for conversion.
6.

Qualified Immunity

In addition to the fact that Plaintiff has failed to state a claim upon which relief may be
granted, Defendant is entitled to qualified immunity.
Under the doctrine of qualified immunity, “government officials performing discretionary
functions[] generally 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.”66 To determine whether an official violated such rights, a court must make three
inquiries:
“(i) whether the plaintiff’s allegations, if true, establish a constitutional violation; (ii)
whether the constitutional right at issue was clearly established at the time of the putative
violation; and (iii) whether a reasonable officer, situated similarly to the defendant, would

63

Belicken v. Stark, 61 Mass. App. Ct. 619, 622 n.2 (2004) (quoting Abington Nat’l Bank
v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 507 (1985)).
64

Compl. ¶ 36 [#1].

65

See supra text accompanying notes 39–40.

66

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citing Procunier v. Navarette, 434
U.S. 555, 565 (1978); Wood v. Strickland, 420 U.S. 308, 322 (1975)).
12

have understood the challenged act or omission to contravene the discerned constitutional
right.”67
As explained above, Plaintiff has failed to establish a constitutional violation against
Defendant. Because Defendant is a government official, she is thus entitled to qualified immunity
and all claims against her must be dismissed.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s Motion to Compel Edward Davis to Comply with

Subpoena [#17] is DENIED and Defendant’s Motion to Dismiss Plaintiff’s Complaint [#21] is
ALLOWED.
AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro
United States District Judge

67

Cox v. Hainey, 391 F.3d 25, 29–30 (1st Cir. 2004) (quoting Limone v. Condon, 372
F.3d 39, 44 (1st Cir. 2004)).
13