Almeida v. Fall River Police Station et al

Filing 46

Chief Judge Patti B. Saris: ORDER entered granting 41 Motion to Dismiss (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE A. ALMEIDA,
Plaintiff,
v.
POLICE OFFICER JOHN ROSE,
Defendant.

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) CIVIL ACTION NO. 12-11476-PBS
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MEMORANDUM AND ORDER
September 24, 2014
SARIS, C.J.
I.

Introduction
Plaintiff Jose A. Almeida brings this action in which he

alleges that he was wrongfully prosecuted for armed robbery, a
charge for which he was ultimately acquitted.

He claims that,

because he was arrested without probable cause, he was unlawfully
detained from his arrest on September 15, 2008 through his
eventual acquittal at a second trial in April 2010.
The only claim that remains is one under 42 U.S.C. § 1983
against Fall River Police Officer John Rose for malicious
prosecution in violation of the plaintiff’s right under the
Fourth Amendment not to be arrested without probable cause.

See

Dec. 9, 2013 Memorandum and Order (docket entry #39, pp. 30-31).
Officer Rose has filed a motion to dismiss under Rule 12(b)(6)
for failure to state a claim upon which relief may be granted.
For the reasons stated below, the Court GRANTS the motion.

II.

Factual Background1
On August 7, 2008, Officer Rose and other officers of the

Fall River Police Department were dispatched to Saxon Street
after having received a report of an armed robbery.

Officer Rose

interviewed the victim, Afif Elbaba, who stated that he had
received a call from his friend Troy Parker.

Parker stated that

either he or a friend was interested in purchasing some tobacco
from Elbaba.

Elbaba agreed and arrived at the designated

location at the appointed time.

He reported that he was then

robbed at gunpoint by a black male, who took $9,000 in cash and
ran away.
The victim then went to a neighbor’s house, where a 911 call
was made by the neighbor.

During later hearings and trials,

Elbaba offered differing testimony as to whether he or the
neighbor spoke during this call and what description, if any, of
the perpetrator was relayed to the 911 operator.

Officer Rose

reported that Elbaba described the perpetrator as a black male,
possibly in his early twenties, approximately 5’8” tall, medium
build, brown eyes, brown bushy hair, and wearing dark clothing.
The defendant also wrote in his report that he spoke to three
witnesses in the area of the crime.

1

One stated that he had seen

The operative pleading consists of pages 11-59 of the
plaintiff’s second amended complaint (docket entry #37) (“SAC”).
See Dec. 9, 2013 Memorandum and Order (docket entry #39), at 30.
The allegations of the SAC are discussed in some length in the
Court’s earlier memorandum and order of December 13, 2013 (docket
entry #39). The Court will assume the reader’s familiarity with
this order and will repeat only those allegations that are
relevant to the adjudication of Officer Rose’s motion to dismiss.
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a small dark colored Nissan or Japanese make four-door sedan
traveling at a high rate of speed.

Two others reported that they

had seen a black male in his early twenties, with brown hair and
possibly dread locks, unshaven, wearing a red hat, dark colored
sweat shirt, dark gray sweat pants, and running.
After speaking to Elbaba and the witnesses, the police put
out a BOLO (Be On the Look-Out) with a description of the suspect
and vehicle.

Two other officers discovered that Parker, who was

known to the Fall River Police Department, “had an associate by
the name of Jose Almeida,” who was also known to the Fall River
Police Department.

According to Officer Rose’s report, Almeida

drove a 1995 green Subaru Legacy and had been involved with an
incident with a firearm.

A BOLO was put out for Almeida.

Officer Rose and other officers then attempted to locate Parker
and Almeida but did not find them at their last known addresses.
Later that evening, Elbaba came to the Fall River police
station to view a photo array.

At some point prior to the photo

array, Elbaba spoke with Officer Rose in the patrol car.

Almeida

alleges that at this time, Officer Rose told Elbaba that he was
going to show him a picture of the man who robbed him.

The

plaintiff implies that Officer Rose then proceeded to show Elbaba
a picture of Almeida on a computer in the police car.
¶¶ 20, 45.

See SAC,

Almeida submitted a page of the transcript of the

probable cause hearing in which Elbaba offers testimony about
this interaction:
[Elbaba]:. . . this is Troy. I know him. So he said,
okay, I’m gonna show – show you the guy who robbed
3

you. You know, [indiscernible at 2:39:24 p.m. speech of witness] I said well, to be honest, 90
percent.
Q:

Was this at the car or where was this?

A:

No, Troy is in the car.

Q:

Okay.

A:

But –- this guy is in the –- police station.

Q:

Okay. So you –- At some point –- Just so I’m
clear, you went and looked at a computer in a car
and they asked you if that was Troy?

A:

Yes.

Q:

And you saw a picture on the computer of Troy?

A:

Yes. At the same minute, I told them this is
Troy, you know, --

Q:

Okay.

A:

–- no doubt.

Q:

So sometime later, you went down to the station?

A:

No, I went – when the conversation was, you know,
after that, they took me to the –- I mean, I
follow —- I follow the cop to the police station.
And then, you know, they show me the -—

Q:

At some point did you look at some pictures?

A:

Yes.

Q:

Okay.

And you showed you the pictures?

SAC, Ex. G (docket entry #37-1, p. 14) (second alteration in
original; emphases added).

The plaintiff also submitted a report

of a private investigator who interviewed Elbaba.

According to

this document, Elbaba unequivocally stated that Officer Rose
showed him a photo of Parker on the computer in the police car:
I then asked Elbaba if he had been shown any photos of
any other males, prior to his having gone to the Police
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Station to view photos, to which he stated that the
Police had shown him (1) one photo on a computer in the
Police Car, which was a photo of Troy Parker, and asked
him if this was the Troy Parker that had called him
before the robbery, to which he told them that it was.
SAC, Ex. (docket entry #37-1, p. 14).

The report does not

contain any suggestion that, while in a police car, the police
showed Elbaba a photo of Almeida.
Inside the police station, Elbaba identified Almeida as the
perpetrator in a photo array consisting of six black and white
photos.

During a probable cause hearing, Elbaba testified that

the officer stated, “I’m going to show you some pictures, and if
you know the guy who robbed you, just sign the pictures and tell
me which one.”

SAC, Ex. G (docket entry #37-1, p. 38).

Elbaba

also testified that he was not “100 percent sure” of the photo
identification.

SAC, Ex. D. (docket entry #37-1, p. 2).

III. Discussion
A.

Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a
complaint–-and any documents attached to it2--must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

The Court “must take the allegations in

the complaint as true and must make all reasonable inferences in

2

In order to assess the merits of a Rule 12(b)(6) motion, a
court should consider the complaint and any documents attached to
it. See Trans–Spec v. Caterpillar, 524 F.3d 315, 321 (1st
Cir.2008).
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favor of the plaintiffs.”
Cir.1993).

Watterson v. Page, 987 F.2d 1, 3 (1st

However, the “tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable
to legal conclusions.”

Iqbal, 556 U.S. at 678.

“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

The Court may

dismiss a complaint when the alleged facts “are merely consistent
with a defendant's liability.”

Id.

In other words, “the

complaint must include factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.

If the factual allegations in the

complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the
S.E.C. v. Tambone, 597 F.3d

complaint is open to dismissal.”

436, 442 (1st Cir.2010) (internal citations and quotations
omitted).
B.

Fourth Amendment Malicious Prosecution Claim

The First Circuit has recognized a Fourth Amendment right to
be free from malicious prosecution.

See Hernandez-Cuevas v.

Taylor, 723 F.3d 91, 99-101 (1st Cir. July 17, 2013).

A

plaintiff may bring § 1983 Fourth Amendment malicious prosecution
claim if he can establish that the defendant “(1) caused (2) a
seizure of the plaintiff pursuant to legal process unsupported by
probable cause, and (3) criminal proceedings terminated in
plaintiff’s favor.”

Id. at 101 (quoting Evans v. Chalmers, 703

F.3d 636, 647 (4th Cir. 2012)).
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Here, the plaintiff has sufficiently pled that Officer Rose
caused his seizure or arrest and that criminal proceedings
terminated in his favor.

However, Almeida has not made

allegations from which the Court may reasonably infer that his
arrest was unsupported by probable cause.
Almeida goes to great length to point out the discrepancies
between what he believes are the true facts and those in Officer
Rose’s report.

The plaintiff sees great significance–and

unfairness–in what he views as contradictions.

These issues

include whether or not Elbaba ever provided a description of the
suspect to Officer Rose (about which Elbaba himself gave
contradictory evidence); whether there was sufficient basis to
put out either BOLO based on inconsistent reports from witnesses
about the color and make of the perpetrator’s car and his
appearance; whether Elbaba or the neighbor to whom he ran spoke
with the 911 operator; whether witnesses were shown a photo
array; whether his criminal history merited him being identified
as a known associate of Parker with a history of a gun incident;
exactly how and when Elbaba went to the police station for the
photo array; and, whether Elbaba was in Officer Rose’s patrol car
to look at a photo at the crime scene or outside the police
station just before viewing the photo array.

Almeida claims that

all of these discrepancies (some of which are due to Elbaba
making contradictory statements in the course of a single
proceeding or in different proceedings) indicate that he was
arrested without probable cause.

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However, none of these allegations suggest that Almeida was
arrested without probable cause in light of the fact that
Elbaba–-who had seen and spoken to the perpetrator--made a
positive photo identification of the plaintiff.

It was the photo

identification of the plaintiff that resulted in his arrest and
nothing leading to that photo identification rose to the level of
a constitutional violation.
Almeida alleges that Officer Rose told Elbaba in his patrol
car that he was going to show him a photo of the person that
robbed him and then proceeded to show him a picture of Almeida.
If this were the case, then Officer Rose’s actions may have
tainted the photo array.

However, Elbaba’s own testimony, which

the Court cannot ignore because Almeida attached it to the Second
Amended Complaint, does not support this characterization of the
events.

As is often the case in witness testimony, Elbaba’s

testimony was not completely linear.

But he makes it clear in

his testimony in the probable cause hearing that Officer Rose
showed him a picture of Parker in the patrol car, not Almeida.
Further, the report of the private investigator indicates that
Elbaba told him that he was shown a picture of Parker, not
Alemeida, in the police car.
Even if Officer Rose’s introduction to the photo array was
that he was going to show Elbaba the man who robbed him, the
plaintiff has not suggested that Officer Rose indicated to Elbaba
in any fashion that Almeida’s photo was that of the perpetrator.
That there were only six photos and that they were black and

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white is of no consequence.

See United States v. Brennick, 405

F.3d 96, 99-100 (1st Cir. 2005); United States v. Maguire, 918
F.2d 254, 263 (1st Cir. 1990).
III.

Conclusion
For the above-stated reasons, the defendant’s motion to

dismiss is GRANTED.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF, UNITED STATES DISTRICT JUDGE

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