Wu v. City of New Bedford et al

Filing 19

Judge Rya W. Zobel: ORDER entered denying 7 Motion for Judgment on the Pleadings as MOOT; plaintiff's motion to amend the complaint #14 is therefore allowed in part and denied in part. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 12-11648-RWZ

XIAN MING WU
v.
CITY OF NEW BEDFORD et al.

MEMORANDUM OF DECISION

September 11, 2013

ZOBEL, D.J.
Plaintiff Xian Ming Wu brought this civil rights action in the Bristol Superior Court
against the City of New Bedford (“the City”); its former mayor, Scott Lang; its former
Chief of Police, Ronald Teachman; and its police officer Jeremy DeMello, whose
interactions with plaintiff gave rise to this suit. Defendants removed the case to this
court and filed a motion under Federal Rule of Civil Procedure 12(c) for partial
judgment on the pleadings. See Docket # 7. Plaintiff responded with a motion to amend
the complaint to “clarify certain aspects of the pleadings” and “more fully set out the
basis for the legal claims and . . . the factual context of the allegations.” Docket # 14, at
1. Defendants opposed in part the motion to amend the complaint; their opposition
substantially tracks the arguments raised in their Rule 12(c) motion.
Both the original complaint and the proposed amended complaint allege that
DeMello used excessive force to arrest plaintiff without probable cause, and that

plaintiff was then maliciously prosecuted for resisting arrest, disorderly conduct, and
assault and battery on a police officer. The criminal charges were apparently resolved
in plaintiff’s favor.
The proposed amended complaint proceeds in seven counts, five against the
individual defendants (Counts I, II, III, V, and VI) and two against the City (Counts IV
and VII). As to the individual defendants, Counts I and II charge DeMello, Lang, and
Teachman under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act (“MCRA”),
Mass. Gen. Laws ch. 12, § 11I, for violating plaintiff’s Fourth and Fourteenth
Amendment rights. DeMello allegedly violated plaintiff’s rights by arresting him with
excessive force and without probable cause; Lang and Teachman allegedly “instilled” a
“pervasive culture” of police misconduct, and “support[ed]” plaintiff’s prosecution.
Docket # 14, Ex. 1 (Am. Compl.), ¶ 31. Count III brings a state common law claim for
malicious prosecution against the individual defendants, on the ground that “[a]cting
jointly Defendants caused criminal charges to be brought and, in the case of Lang and
Teachman[,] to be continued” against plaintiff with malice and without probable cause.
Am. Compl., ¶ 38. Count V proceeds only against DeMello, alleging the intentional tort
of assault and battery. Finally, Count VI asserts a state common law claim for false
arrest and abuse of process against DeMello for arresting and charging the plaintiff and
against Lang and Teachman for supporting and ratifying DeMello’s actions.
As to the City, Count IV seeks relief under Mass. Gen. Laws ch. 258, § 2, either
for DeMello’s negligence during the arrest or for Lang’s, Teachman’s, and the City’s
negligence in failing to properly train and supervise DeMello. Count VII is another claim
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under 42 U.S.C. § 1983, claiming that the City’s policies and customs—in particular, its
“tolerance and ratification and endorsement of police misconduct”—caused the
violation of plaintiff’s Fourth and Fourteenth Amendment rights. Am. Compl., ¶ 57.
Defendants oppose plaintiff’s motion to amend the complaint insofar as the
amended complaint alleges claims against Lang, Teachman, and the City. They
correctly argue that the amended complaint fails to state any claim against these
defendants, and so the motion to amend is futile as to those putative claims. See
Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 117 (1st Cir. 2009). In
deciding whether plaintiff has stated a claim, I accept as true all factual allegations
contained in the complaint and draw all reasonable inferences in plaintiff’s favor.
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 52-53 (1st Cir. 2013). However, I
do not credit conclusory assertions that lack factual enhancement. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). To state a claim, plaintiff must plead facts showing it is
plausible, not merely possible, that defendants have acted unlawfully. Id.
I begin with the claims against Lang and Teachman. Counts I and II against
these defendants fail because plaintiff has not alleged facts showing supervisory
liability.1 It is well established that government officials “may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.”
Iqbal, 556 U.S. at 676. Instead, supervisory liability normally arises in one of two ways:

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The MCRA is mostly “coextensive with 42 U.S.C. § 1983,” except that it does not require state
action and does require threats, intimidation, or coercion. See Batchelder v. Allied Stores Corp., 473
N.E.2d 1128, 1131 (Mass. 1985). The standard for supervisory liability under the MCRA is thus
apparently the same as under § 1983. See Priestly v. Doucette, 2 Mass. L. Rptr. 253, 1994 WL 879691,
at *3-4 (Mass. Super. May 31, 1994).

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either (1) the supervising official personally violates the plaintiff’s rights, or (2) the
official shows deliberate indifference to the plaintiff’s constitutional rights in deficiently
hiring, training, or supervising his subordinates. Sanchez v. Pereira-Castillo, 590 F.3d
31, 49 (1st Cir. 2009). The first prong is not at issue here, as plaintiff does not allege
that either Lang or Teachman was personally involved in his arrest or the use of
excessive force. As to the second prong, plaintiff does not assert any specific failures
by Lang or Teachman in how they hired, trained, or supervised DeMello. Instead, he
generally avers that Lang and Teachman “instilled” a “pervasive culture” of police
misconduct at the New Bedford Police Department. Am. Compl., ¶ 31. Specifically, he
faults them for their:
reckless disregard for Plaintiff[‘s] constitutional rights by the
long[-]standing policy and practice of failing to investigate complaints of
misconduct, as in this very case; failure to discipline officers in this and
prior cases; condoning of beatings of citizens; instilling confident belief in
the officers of the New Bedford Police Department that any unlawful
violations will be not only tolerated by the City and its leaders, but
supported and ratified by false reports and support for false and abusive
prosecutions.
Am. Compl., ¶ 31. These conclusory assertions of pervasive wrongdoing, of course, are
not enough to state a claim. See Iqbal, 556 U.S. at 678-79 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.”); id. at 680-81 (rejecting allegations that defendants “knew of, condoned, and
willfully and maliciously agreed to” their subordinates’ unlawful conduct). Plaintiff
provides almost no details to support these conclusory assertions. He points to only
two prior incidents in which Lang and Teachman allegedly failed to investigate or

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discipline police misconduct. Specifically, plaintiff describes two other complaints that
charged Lang and Teachman with supervisory liability for police misconduct that
occurred in 2007 (two years before the events at issue here). Am. Compl., ¶ 20-21.
Those unproven complaints are “merely consistent with” plaintiff’s theory that Lang and
Teachman were deliberately indifferent to police misconduct. Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 557 (2007)).“[G]iven more likely
explanations,” they are not enough to make plaintiff’s theory plausible. Id. at 681; see
Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir. 1985) (“People may file a
complaint for many reasons, or for no reason at all.”). Plaintiff’s additional allegations
that Lang and Teachman failed to properly investigate his own complaints is no more
helpful. See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 95 n.11 (1st Cir.
1994) (failure to properly investigate a single complaint about police misconduct does
not show deliberate indifference). Finally, to the extent plaintiff seeks to hold Lang and
Teachman liable on Counts I and II for their role in his prosecution, he has failed to
allege facts showing how Lang and Teachman “assisted and endorsed the prosecution
by knowing and intentional acts.” Am. Compl. ¶ 35.
Count III (malicious prosecution) and Count VI (false arrest and abuse of
process) likewise fail to state any claim against Lang or Teachman. Count III merely
asserts that “[a]cting jointly Defendants caused criminal charges to be brought and, in
the case of Lang and Teachman[,] to be continued against [plaintiff] without probable
cause and with malice.” Am. Compl. ¶ 38. It alleges no facts showing how either Lang
or Teachman had any role in plaintiff’s prosecution. Count VI likewise states only that
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Lang and Teachman “supported and ratified the prosecution and abuse of process” and
“ratified and endorsed and maintained the illegal prosecution of the plaintiff.” Am.
Compl. ¶ 54. It provides no facts to show what role these defendants themselves
played in the proceedings. Cf. Iqbal, 556 U.S. at 678-79, 680-84.
Plaintiff’s claims against the City are equally deficient. Count IV is brought under
Mass. Gen. Laws ch. 258, § 2, which makes public employers liable for the negligence
of their employees. Before suing under that statute, a plaintiff must first present his
claim in writing to the public employer. Mass. Gen. Laws. ch. 258, § 4. As pleaded,
Count IV apparently invokes two theories of liability: that the City is liable for DeMello’s
negligence in making the arrest, Am. Compl. ¶¶ 41-45, and that it is liable for the
negligence of its employees in failing to properly train and supervise DeMello, Am.
Compl. ¶¶ 46. The former theory, however, was not put forward in the written claim
plaintiff presented to the City. His letter to the City nowhere accuses DeMello of
negligence; on the contrary, it indicates that DeMello acted intentionally, in which case
the City would not be liable for his actions. See Docket # 18-2; Mass. Gen. Laws ch.
258, § 10(c) (exempting public employers from liability for the intentional torts of their
employees). As the presentment letter fails to raise any negligence by DeMello, plaintiff
cannot proceed here on that theory. See Tambolleo v. Town of West Boylston, 613
N.E.2d 127, 131 (Mass. App. Ct. 1993). That leaves only plaintiff’s second theory,
negligence in training and supervision. But plaintiff has not alleged any identifiable
deficiency in the City’s training or supervision of its police officers; he only asserts in a
conclusory fashion that Lang, Teachman, and the City “acted negligently in their failure
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to properly train, supervise and discipline Officer DeMello.” Am. Compl. ¶ 47. That will
not do.
Finally, Count VII asserts liability against the City under 42 U.S.C. § 1983,
claiming the City’s unlawful “policies and customs” led to the violation of plaintiff’s
constitutional rights. Am. Compl. ¶ 57; see Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690-91 (1978). To state such a claim, plaintiff must allege facts showing that an official
policy, practice, or custom followed by the City was responsible for the deprivation of
his federal rights. See Monell, 436 U.S. at 690. No such facts are alleged in the
amended complaint. Plaintiff asserts that before he was arrested, “there was a pattern
of New Bedford Police Department officers using excessive force to arrest people
without probable cause,” Am. Compl. ¶ 59; but he alleges no facts to support that
conclusion other than the two previous complaints described above. The mere
existence of those two unsubstantiated complaints, regarding incidents that occurred
two years before plaintiff was injured, does not raise a plausible inference that New
Bedford’s regular practice was to make arrests with excessive force and without
probable cause. Cf. Kinan v. City of Brockton, 876 F.2d 1029, 1034-35 (1st Cir. 1989)
(upholding exclusion of evidence regarding cases that settled because such cases
“cannot be used to prove custom or practice”). Plaintiff’s additional allegations about
the single incident that he suffered are also not enough to plausibly show an ongoing
policy, practice, or custom. See Sonia v. Town of Brookline, 914 F. Supp. 2d 36, 46-47
(D. Mass. 2012) (“[I]t is extremely difficult to sustain [municipal liability] based on a
single incident of misconduct.”).
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To the extent plaintiff seeks to base liability on the City’s failure to train its
officers correctly, his claim fails because he has not “identified” any specific “deficiency
in [the] city’s training program . . . closely related to the ultimate injury.” City of Canton
v. Harris, 489 U.S. 378, 391.
Alternatively, plaintiff argues that the City is liable because it “ratif[ied]”
DeMello’s alleged wrongdoing and so adopted his actions its official policy.2 Cf. City of
St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (“If the authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is final.”). To support this
argument, plaintiff alleges that the City received “overwhelming eyewitness evidence of
unlawful misconduct by Officer DeMello,” but that it nevertheless failed adequately
investigate the incident, failed to discipline DeMello, allowed criminal charges to be
filed against plaintiff, and defended DeMello’s actions when plaintiff complained to the
Massachusetts Commission Against Discrimination. Am. Compl., ¶ 4; see id. ¶¶ 22-26.
Although troubling, those allegations are not enough to plausibly show that the City
knew DeMello had violated plaintiff’s rights and chose to affirmatively ratify his
misconduct. The City is not liable under 42 U.S.C. § 1983 just because plaintiff
disagrees with the results of its investigation into the incident. See Santiago v. Fenton,
891 F.2d 373, 382 (1st Cir. 1989) (“[W]e cannot hold that the failure of a police
2

In fact, plaintiff alleges that the City’s “policies and customs” included “the tolerance and
ratification and endorsement of police misconduct and failure to train officers, investigate complaints,
discipline officers who engage in violations of civil rights and instill in the department a culture of
unlawfulness” across the board. Am. Compl., ¶ 57. But the only facts plaintiff alleges to show that the
City ratified police misconduct are (1) the existence of the two complaints discussed above, and (2) the
facts of the incident he himself suffered.

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department to discipline in a specific instance is an adequate basis for municipal
liability under Monell.”); Kibbe v. City of Springfield, 777 F.2d 801, 809 n.7 (1st Cir.
1985); Barker v. City of Boston, 795 F. Supp. 2d 117, 124-25 (D. Mass. 2011).3
Plaintiff’s motion to amend the complaint (Docket # 14) is therefore ALLOWED
IN PART and DENIED IN PART. The proposed amended complaint shall become the
active complaint in this matter, but it shall be construed to raise only the claims
asserted against DeMello and not those asserted against Lang, Teachman, or the City.
Defendants’ motion for partial judgment on the pleadings (Docket # 7) is
DENIED AS MOOT.

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

September 11, 2013
DATE

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Plaintiff also notes that DeMello’s supervisors approved DeMello’s arrest report despite
“extensive civilian eyewitness evidence of unlawful conduct and false reports by DeMello.” Am. Compl. ¶
60. But he alleges no facts to show that these supervisors were authorized policymakers for the town, or
that they ratified DeMello’s alleged misconduct on behalf of the town by approving his arrest report.

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