Joseph et al v. City of Boston et al

Filing 12

Judge Richard G. Stearns: MEMORANDUM AND ORDER ON DEFENDANT CITY OF BOSTON'S MOTION TO DISMISS, entered denying 2 without prejudice Motion to Dismiss for Failure to State a Claim; denying 5 without prejudice Motion to Dismiss for Failure to State a Claim. "...Plaintiff will have twenty-one(21) days to attempt to amend the Complaint to plead a viable federal claim. If plaintiffs elect not to do so, the State common-law claims, as well as the claim of a violation of the MCRA, will be REMANDED to the Superior Court." (Flaherty, Elaine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-10191-RGS
JEAN JOSEPH and MARIE JOSEPH
v.
CITY OF BOSTON, A MUNICIPAL CORPORATION,
EDWARD P. DAVIS III AS CHIEF OF POLICE,
OFFICER JOHN DOE 1, and OFFICER JOHN DOE 2

MEMORANDUM AND ORDER ON
DEFENDANT CITY OF BOSTON’S
MOTION TO DISMISS
March 12, 2011
STEARNS, D.J.
Plaintiffs Jean and Marie Joseph brought this action in the Massachusetts
Superior Court alleging violations of their federal and Massachusetts state civil rights,
common-law assault, the intentional infliction of emotional distress, false arrest, and
the abuse of process by two unidentified Boston police officers (John Doe Officers 1
and 2), the City of Boston, and Edward P. Davis, III, in his official capacity as Chief
of Police.1 The Josephs’ claims arise out of an early morning traffic stop during which
the unidentified officers allegedly “deprived them of their Fourth and Fourteenth

1

Although named as “Chief of Police,” Davis’s official title is that of Police
Commissioner, which is a civilian, not a police rank.

Amendment rights.” Compl. ¶ 1. The City removed the case to the U.S. district court
on federal question grounds and has since moved to dismiss the Josephs’ municipal
claims. In Count IV of the Complaint, brought under 42 U.S.C. § 1983, the Josephs
allege that the City under Commissioner Davis’ leadership has “developed and
maintained policies, practices, or customs exhibiting deliberate indifference to [the
Josephs’] constitutional rights.” More specifically, the Josephs allege that the City
maintained a policy or custom of “inadequately and improperly” investigating citizen
complaints against Boston police officers.

Count VI makes the same generic

allegations against the City and Chief Davis under the Massachusetts Civil Rights Act
(MCRA), Mass. Gen. Laws ch. 12, §§ 11H and 11I. In their Opposition, the Josephs
appear to concede that a municipality is not a “person” amenable to suit for money
damages under the MCRA. See Howcroft v. City of Peabody, 51 Mass. App. Ct. 573,
591-592 (2001). The Josephs, however, defend their section 1983 claim, arguing that
Count IV adequately alleges “the existence of a policy or custom as well as a causal
link between the policy and/or custom and the unconstitutional harm.” Opp’n at 6.
BACKGROUND
The following facts are drawn from the Josephs’ Complaint and for present
purposes must be taken as true. On December 10, 2008, Jean Joseph was driving his

2

wife Marie to work at 4:50 a.m.2 They were stopped behind another vehicle at a red
light at the intersection of Melnea Cass Boulevard and Massachusetts Avenue in
Boston. When the light turned green and the vehicle in front of them failed to move,
Jean Joseph honked his horn. The vehicle drove forward briefly and then came to a
stop. Jean Joseph changed lanes to pass the vehicle to its left. As he did so, the
occupants of the vehicle activated flashing police lights. Jean Joseph pulled his car
immediately over to the curb.
The driver emerged from the vehicle and yelled at the Josephs, “What the hell
do you think you are doing?” Two Boston Police cruisers arrived at the scene flanking
the Josephs’ vehicle from its two sides. A uniformed officer took a position at the front
of the Joseph’s car to prevent any forward movement. Two of the officers berated and
cursed the Josephs, repeatedly ordering them to “look straight ahead” and “do not look
at me.” After obtaining Jean Joseph’s license and registration, the officers detained the
Josephs at the scene for approximately fifty minutes. Officer 1 eventually issued Jean
Joseph citations for “improper/unsafe passing”, “speed greater then reasonable/proper”,
and “following too closely.” The Josephs describe the officers’ behavior as “so brutal
and threatening that [they] feared for their lives and Mrs. Joseph soiled herself and had

2

The Josephs are of African/Haitian descent and are both in their late 50s.
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to return home to change clothing before going on to work.” Compl. ¶ 10.
On January 9, 2009, Jean Joseph appeared before a Clerk-Magistrate to object
to the issuance of the motor vehicle citations. Joseph explained his version of the
incident to the Clerk-Magistrate who dismissed the citations without any finding of
liability.3 The Josephs filed a citizens’ complaint with the Boston Police Department
and cooperated with the subsequent investigation, which concluded without any
disciplinary action being taken against the officers. The Josephs believe that the
Department “trivialized the conduct of its officers as ‘discourteousness.’” Id. ¶ 12.
They then filed this Complaint in the Superior Court.
DISCUSSION
To survive a motion to dismiss, 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 Rodriguez-Ortiz
v. Margo Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir. 2007). “When there are

3

It is apparent from the “John Doe” caption of the Complaint that the officers
did not appear for the hearing. See Reading v. Murray, 405 Mass. 415, 417 (1989).
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well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1950 (2009).
To prove their claim that the City is liable under 42 U.S.C. § 1983, the Josephs
must show: (1) that they suffered the deprivation of a constitutional right(s); (2) that the
officers that caused the harm were acting under color of state law; (3) that the City had
an unconstitutional policy, custom or practice; and (4) that the custom, policy or
practice was the moving force behind the officers’ violation of the Plaintiffs’
constitutional right(s). See Monell v. Dep’t of Soc. Services, 436 U.S. 658, 690-691
(1978); Young v. City of Providence, 404 F.3d 4, 25-26 (1st Cir. 2005). Further, a
municipality can only be liable under § 1983 for a custom or policy of failing to
discipline or supervise its officers if that failure causes a constitutional violation or
injury and “‘amounts to deliberate indifference to the rights of persons with whom the
[officers] come into contact.’” DiRico v. City of Quincy, 404 F.3d 464, 468-469 (1st
Cir. 2005), quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989).
At the outset, it is apparent that the § 1983 claim (Count I), which is premised
on a violation of the Fourth Amendment, is unsustainable as pled. The Josephs allege
that they were the victims of an arrest made without probable cause. However, under
the facts as alleged, there was no arrest. The most that is said in the Complaint is that
5

the Josephs were stopped by officers, detained at the scene, issued traffic citations, and
then permitted to go on their way. The “Rules of the Road” violations described in the
Complaint are civil motor vehicle infractions for which there is no right of arrest.
Compare Mass. Gen. Laws ch. 90C, § 3 (Issuance of Warnings or Citations for Civil
Motor Vehicle Infractions), and Mass. Gen. Laws ch. 90, § 21 (Arrest Without
Warrant for Certain Violations). Nor is there any allegation that the Josephs were
taken into custody. Although the Complaint alleges that the vehicle violations were not
witnessed by the officers, State law specifically provides that a citable offense need not
occur in an officer’s presence. See Mass. Gen. Laws ch. 90C, § 2 (“[A]ny police
officer assigned to traffic enforcement duty shall, whether or not the offense occurs
within his presence, record the occurrence of automobile law violations upon a citation
. . . .”).4 Finally, while the Complaint alleges that the Josephs were detained as the
officers verified Jean Joseph’s driver’s license and registration, it is settled Fourth
Amendment law that an officer has the right to demand identification (including a
driver’s license and registration) from a person stopped for a motor vehicle offense, as
well as the right to detain the person while conducting a check of Registry records and

4

Even were State law to the contrary, it would have no significance for the
Josephs’ case as § 1983 secures federal and not state-protected rights. See VargasBadillo v. Diaz-Torres, 114 F.3d 3, 5-6 (1st Cir. 1997).
6

issuing citations. See United States v. Fernandez, 600 F.3d 56, 62 (1st Cir. 2010). See
also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“A lawful roadside stop begins
when a vehicle is pulled over for investigation of a traffic violation. The temporary
seizure of driver and passengers ordinarily continues, and remains reasonable, for the
duration of the stop.”). The churlish manner in which the officers treated the Josephs,
if things transpired as alleged in the Complaint, is regrettable, indeed censurable, but
it does not implicate any of the protections of the United States Constitution.5
ORDER
For the foregoing reasons, the City of Boston’s motion to dismiss the federal
claims alleged against it and Commissioner Davis (Count IV), and by implication the
federal claim against the individual officer defendants (Count I) is ALLOWED without
prejudice. Plaintiff will have twenty-one (21) days to attempt to amend the Complaint
to plead a viable federal claim. See Future Dev. of P.R., Inc. v. Estado Libre Asociado
de P.R., 144 F.3d 7, 14 (1st Cir. 1998). If plaintiffs elect not to do so, the State

5

Because there is no identifiable federal constitutional injury pled in the
Complaint, it follows that there is no viable Monell claim either. A municipality cannot
be held liable under § 1983 simply because it employs a tortfeasor. Collins v. City of
Harker Heights, 503 U.S. 115, 122 (1992). Cf. Hernandez v. Sheahan, 455 F.3d 772,
774 (7th Cir. 2006) (“[U]nits of government can be liable under § 1983 only for
unconstitutional policies, as opposed to errors in the implementation of valid
policies.”).
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common-law claims, as well as the claim of a violation of the MCRA, will be
REMANDED to the Superior Court.6
SO ORDERED.
/s/ Richard G. Stearns
___________________________________
UNITED STATES DISTRICT JUDGE

6

See Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir. 1998) (“[T]he balance
of competing factors ordinarily will weigh strongly in favor of declining jurisdiction
over state law claims where the foundational federal claims have been dismissed at an
early stage in the litigation.”).
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