Brown v. Pepe

Filing 46

Judge Richard G. Stearns: ORDER entered granting 26 Motion for Judgment on the Pleadings. "For the foregoing reasons, Cinelli's motion for judgment on the pleadings is ALLOWED. The Clerk will enter judgment for defendants and close the case." (RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-13123-RGS
MANSON BROWN
v.
JOSEPH PEPE and CURTIS CINELLI
MEMORANDUM AND ORDER ON DEFENDANT CINELLI’S
MOTION FOR JUDGMENT ON THE PLEADINGS
September 8, 2014
STEARNS, D.J.
In this civil rights lawsuit, inmate Manson Brown alleges that
defendants Department of Correction (DOC) Lieutenant Joseph Pepe and
Massachusetts State Police Trooper Curtis Cinelli forced him to submit to
an unconstitutional perp walk 1 while being extradited to Massachusetts
from Georgia after being arrested as an escapee. Brown claims violations of
his Fourth, Eighth, and Fourteenth Amendment rights.

This action is

brought pursuant to 42 U.S.C. §§ 1983 and 1985. Trooper Cinelli now
moves for judgment on the pleadings.
The “perp walk” is a “police practice . . . in which the suspected
perpetrator of a crime, after being arrested, is ‘walked’ in front of the press
so that he can be photographed or filmed.” Lauro v. Charles, 219 F.3d 202,
203 (2d Cir. 2000).
1

BACKGROUND 2
Brown,

a

convicted

felon,

escaped

from

DOC

custody

in

Massachusetts on November 27, 2009. 3 He was recaptured in Decatur,
Georgia, on January 5, 2010. On January 12, 2010, Lt. Pepe and Trooper
Cinelli arrived at the Dekalb County Jail to take custody of Brown to return
him to Massachusetts. Before leaving the jail, Pepe and Cinelli placed
Brown in hand and leg restraints. They then brought him to an area of the
jail where several sheriff’s deputies were milling about. While there, Cinelli
used the camera of his cell phone to take a “selfie” with Brown, “like
[Brown] was a ‘prize catch.’” Am. Compl. ¶ 11.
Pepe and Cinelli then escorted Brown through the doors of the main
lobby of the jail, rather than through a secluded side sally port, to an area
where a gaggle of news media had assembled. Seeing the news cameras,

For purposes of evaluating the motion for judgment on the
pleadings, the court accepts as true the factual allegations of Brown’s
Amended Complaint (Dkt. # 10). See Zipperer v. Raytheon Co., Inc., 493
F.3d 50, 53 (1st Cir. 2007) (“[T]he facts contained in the pleadings [are
viewed] in the light most favorable to the nonmovant and [the court]
draw[s] all reasonable inferences in his favor.”).
2

When he escaped, Brown was serving a 10-year sentence for home
invasion. See Brown v. Pete [sic], 2013 WL 141671, at *1 n.2 (D. Mass. Jan.
8, 2013). Additional indictments for home invasion and rape were pending
against Brown. Id. Following his escape, DOC placed Brown on its “Most
Wanted” list. Id.
3

2

Brown attempted to cover his head with the hood of his sweatshirt. Cinelli
pulled the hood back to expose Brown’s face. When Brown then tried to
duck to shield himself from view, Cinelli and Pepe pulled him back up to
face the cameras. Brown growled to the officers, “[Y]ou ain’t gonna get
your shine off me.” Id. ¶ 12.
Brown alleges that he suffered “extreme humiliation, intense
discomfort and emotional distress” from being publicly displayed in this
fashion.4 Pl.’s Opp’n at 2 (Dkt. # 38). He first brought suit against Pepe,
Cinelli, and Sherriff Thomas Brown of Dekalb County, Georgia, in this court
on September 10, 2012. See Brown v. Pepe, No. 12-cv-11687 (D. Mass.
2012) (Brown I).

Because Sheriff Brown was not a resident of

Massachusetts and the incident which formed the basis of the Complaint
occurred in Georgia, pursuant to 28 U.S.C. § 1391(b) 5, the court (Sorokin,
In opposing Cinelli’s statute of limitations argument, see note 16,
infra, Brown contends that he did not fully appreciate the fact that he had
been injured until June of 2012.
4

5

Under 28 U.S.C. § 1391(b), a civil action may be brought in

(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is
located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part
of property that is the subject of the action is situated; or
3

M.J.) determined that the Northern District of Georgia was the proper
venue for the lawsuit. See Brown v. Pepe, 2013 WL 3246127, at *3 (D.
Mass. June 25, 2013).

Brown I consequently was dismissed without

prejudice, pursuant to 28 U.S.C. § 1406(a). 6

Id., at *3-4, Report and

Recommendation adopted, 2013 WL 3786464, at *1 (D. Mass. July 17,
2013) (Tauro, J.).
On November 12, 2013, Brown filed a second complaint in the
Northern District of Georgia, this time omitting Sheriff Brown as a
defendant. See Brown v. Pepe, No. 13-cv-03751 (N.D. Ga. 2013) (Brown
II). On Brown’s motion, the Georgia court transferred Brown II to this
district in December of 2013, pursuant to 28 U.S.C. § 1404(a). Because all
of the defendants named in Brown II reside in this district, venue in
Massachusetts is now proper. See Dkt. # 2 at 2-3, citing 28 U.S.C. §
1391(b)(1).
DISCUSSION
(3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in
which any defendant is subject to the court’s personal
jurisdiction with respect to such action.
The claims against Pepe were also dismissed for failure to exhaust
administrative remedies. Brown I, 2013 WL 3246127, at *2. Brown asserts
without elaboration that he has since exhausted such administrative
remedies as are available to him. See Am. Compl. ¶ 7.
6

4

To impose liability under section 1983, Brown must demonstrate that
“(1) [] the conduct complained of was committed by a person acting under
the color of state law; and (2) [that] this conduct deprived [him] of rights,
privileges, or immunities secured by the Constitution or laws of the United
States.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.
1989), quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on
other grounds, Davidson v. Cannon, 474 U.S. 344 (1986). Cinelli does not
contest that he was acting in his capacity as a Massachusetts State Police
Trooper at all times in his dealings with Brown, but contends that he is
entitled to qualified immunity because he did not violate any of Brown’s
“clearly established” constitutional rights.
Qualified immunity attaches to discretionary conduct of government
officials that “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”

Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); see also Mitchell v. Forsyth, 472 U.S.
511, 528 (1985) (officers immune unless their actions were “clearly
proscribed” by established law).

“[W]hether an official protected by

qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the ‘objective legal reasonableness’ of the
action.”

Anderson v. Creighton, 483 U.S. 635, 639 (1987).
5

The line

properly drawn is not between the constitutional and the unconstitutional,
but between acts that, although unconstitutional, are nonetheless
objectively reasonable, and acts that are unconstitutional on their face. See
Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004). “The qualified immunity
standard ‘gives ample room for mistaken judgments’ by protecting ‘all but
the plainly incompetent or those who knowingly violate the law.’” Rivera v.
Murphy, 979 F.2d 259, 263 (1st Cir. 1992), quoting Hunter v. Bryant, 502
U.S. 224, 229 (1991) (per curiam).
In assessing a qualified immunity defense, a court may choose to
“first determine whether the plaintiff has alleged a deprivation of an actual
constitutional right at all.” Conn v. Gabbert, 526 U.S. 286, 290 (1999).
The “threshold” question in this mode of analysis can be stated as follows:
“Taken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a constitutional right? . . . If
no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified
immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
The Supreme Court had previously identified a particular value in this
order of procedure.

“Deciding the constitutional question before

addressing the qualified immunity question . . . promotes clarity in the legal
6

standards for official conduct, to the benefit of both the officers and the
general public.” Wilson v. Layne, 526 U.S. 603, 609 (1999).

Saucier

elevated this “benefit” into a mandate under which lower courts were
always obligated to answer the constitutional question before asking
whether the right asserted was “clearly established” law.

However, in

Pearson v. Callahan, 555 U.S. 223 (2009), the Court backed away,
acknowledging that “[t]here are circumstances in which the first step of the
Saucier procedure may create a risk of bad decisionmaking.” Id. at 239.
There are cases “in which a court will rather quickly and easily decide that
there was no violation of clearly established law before turning to the more
difficult question whether the relevant facts make out a constitutional
question at all.” Id. A trial court, in other words, is at liberty to proceed in
the sequence that seems most appropriate to the facts of the case at hand.
Id. at 242.

Here, the court will take up the arguably “more difficult

question” or whether Brown has alleged a constitutional violation at all. 7

The court notes, however, that because there is no clearly
established law in Massachusetts or the First Circuit giving guidance on the
constitutionality of a perp walk, the result would be reached very quickly
under a ”clearly established law” analysis. The court chooses the more
difficult approach because of the value of establishing such guidance, a
benefit which this case has the potential of achieving.
7

7

The constitutionality of the so-called “perp walk” is a matter of first
impression in this Circuit. Brown’s principal argument is based on an
alleged violation of his Fourth Amendment right to be free from
“unreasonable . . . seizures.” U.S. Const. Amend. IV. 8 Brown does not
contend (nor could he) that he was not lawfully in Pepe’s and Cinelli’s
custody, but rather that his voice and likeness was captured and
memorialized against his will, in violation of his right to privacy (no matter
how diminished by the fact of lawful custody). 9
Cinelli does not contest that the Fourth Amendment encompasses
seizures of intangibles such as video footage and photographic images. See
Caldarola v. Cnty. of Westchester, 343 F.3d 570, 574 (2d Cir. 2003)
(“Although [i]t is true that . . . at one time . . . th[e] [Fourth] Amendment
was thought to limit only searches and seizures of tangible property . . . .
“[A] seizure deprives the individual of dominion over his or her
person or property.” Horton v. California, 496 U.S. 128, 133 (1990).
8

This case is distinguishable from Lauro, in which the Second
Circuit found a staged perp walk to violate the Fourth Amendment. In
Lauro, police learned of media interest in Lauro’s case subsequent to his
arrest for burglary. They then chose to reenact the arrest to gain news
coverage by taking Lauro out of the police station, driving him around the
block, and bringing him back into the station. Lauro, 219 F.3d at 204-205.
Although the Court acknowledged that “[t]he interests of the press, and of
the public who might want to view perp walks, are far from negligible . . .
that interest is not well served by an inherently fictional dramatization of
an event that transpired hours earlier.” Id. at 213 (emphasis added). Brown
makes no claim in his Amended Complaint that his perp walk involved any
“reenactment” of his arrest.
9

8

[t]he premise that property interests control the right of the Government to
search and seize has been discredited.”) (internal quotation marks
omitted), citing Katz v. United States, 389 U.S. 347, 352-355 (1967).
However, “Katz teaches that Fourth Amendment protection extends only to
situations in which the complaining person had a reasonable and legitimate
expectation of privacy.” Amezquita v. Hernandez-Colon, 518 F.2d 8, 10 (1st
Cir. 1975) (quotation marks and citation omitted). “The reasonableness of
an individual’s expectation of privacy will vary in accordance with the
circumstances of a given seizure.” Caldarola, 343 F.3d at 575.
In Caldarola, several corrections officers employed by the DOC of the
County of Westchester, New York, were arrested on suspicion of
fraudulently obtaining disability benefits. Id. at 572. The Second Circuit
found that video footage taken of the arrested officers being transported to
a police car through the DOC parking lot, where the video was “intended
[by the arresting officers] for public viewing by television audiences,”
constituted a Fourth Amendment seizure. Id. at 574-575. The Court noted
that, although “[o]ne’s privacy interests receive much less protection in
public places,” id. at 575, “an accused [nonetheless] possesses a privacy
interest in not being ‘displayed to the world, against his will, in handcuffs,
and in a posture connoting guilt.’” Id., quoting Lauro, 219 F.3d at 212 n.7.
9

In Brown’s case, the perp walk occurred at the main entrance of the
Dekalb County Jail. Like the DOC parking lot in Caldorola, the venue was
one over which Brown had no dominion, nor, as an area open by right to
the public, could he reasonably expect the exclusion of journalists and
cameras from the vicinity simply because of his presence. See Caldarola,
343 F.3d at 575.

Thus, as in Caldorola, Brown had only a “minimal”

expectation of privacy in the circumstances of his perp walk. See id.10
Although it cannot be gainsaid that the media’s recording of Brown’s
voice and image intruded on his legitimate concerns for privacy, the seizure
was nonetheless reasonable when balanced against the government
interests served by the publication by the news media of the visual
verification of his extradition. See Graham v. Connor, 490 U.S. 386, 396
(1989) (“Determining whether . . . a particular seizure is ‘reasonable’ under
the Fourth Amendment requires a careful balancing of ‘the nature and
quality of the intrusion on the individual’s Fourth Amendment interests’
against the countervailing governmental interests at stake.”); see also Terry

Cinelli’s privately-taken photograph of Brown stands on a somewhat
different footing. Brown was lawfully in Cinelli’s custody, and Brown’s
image was in “plain view” to Cinelli. Brown had no reasonable expectation
that Cinelli would not view his visage or hear his voice. There is no
allegation that Cinelli disseminated or published the “selfie” taken with
Brown. At most the “selfie” amounts to a de minimis intrusion on Brown’s
privacy that does not implicate constitutional concerns.
10

10

v. Ohio, 392 U.S. 1, 21-22 (1968). In Caldarola, the Court identified the
several governmental interests favoring the publication of the video of the
arrests in that case.
The County created and distributed the videotape to inform the
public about its efforts to stop the abuse of disability benefits by
its employees. The fact that corrections officers – public
employees – were arrested on suspicion of grand larceny is
highly newsworthy and of great interest to the public at large.
Divulging the arrests also enhances the transparency of the
criminal justice system, and it may deter others from
attempting similar crimes. Furthermore, allowing the public to
view images of an arrestee informs and enables members of the
public who may come forward with additional information
relevant to the law enforcement investigation.
Caldarola, 343 F.3d at 576. 11 The Court concluded that, “[b]ecause there
was a minimal expectation of privacy in the parking lot, and the conduct of
the arresting officers did not unreasonably exceed the scope of what was
necessary to effectuate the arrest and to otherwise serve legitimate
government purposes,” there was no unreasonable seizure under the
Fourth Amendment. Id. at 577.
Cinelli identifies two additional governmental interests at play in
publication of footage of Brown’s extradition: “1) to inform the public that a
dangerous escaped felon has been taken back into custody; and 2) to

The Court also noted that “videotape can also be used to serve the
legitimate government purpose of protecting individuals from police abuse
and protecting police from false accusations of abuse.” Id. at 576 n.3.
11

11

dissuade other would be fugitives from attempting to escape by sending the
message that no matter how far you run the government will pursue and
find you.” Cinelli Br. at 11 (Dkt. # 27). These interests are all the more
compelling when the subject is an escaped felon convicted of (and facing
charges of) serious crimes of violence than (as in Caldarola), the arrest of
persons whose guilt had yet to be adjudicated. Brown’s escape had made
him the subject of a national man-hunt as well as national media coverage
on “America’s Most Wanted.” 12

In addition to raising safety concerns over

a convicted criminal at-large, Brown’s flight also called into question the
effectiveness of minimum security prisons, as well as the competence and
accountability of prison officials responsible for Brown’s safekeeping and
the guarding of public safety. 13

Weighing the “minimal” intrusion on

Brown’s privacy against these significant government interests, it is clear

See
http://www.myfoxboston.com/story/17765596/escapedmassachusetts-convict-manson-brown-captured-in-georgia
(accessed
August 29, 2014).
12

See
http://www.boston.com/news/local/massachusetts/articles/2009/12/02
/fenceless_prisons_defended_after_latest_escape (accessed August 29,
2014).
13

12

that there was no unreasonable Fourth Amendment seizure in the taping of
his perp walk. 14
Brown also alleges a violation of the Eighth Amendment prohibition
against cruel and unusual punishments.

“[R]epugnant to the Eighth

Amendment [are] punishments which are incompatible with the evolving
standards of decency that mark the progress of a maturing society . . . or
which involve the unnecessary and wanton infliction of pain.” Estelle v.
Gamble, 429 U.S. 97, 102-103 (1976) (internal quotation marks and
citations omitted). Unnecessary and wanton inflictions of pain are those
“totally without penological justification.” Hope v. Pelzer, 536 U.S. 730,
737 (2002) (punitive use of a hitching post). See also Hickey v. Reeder, 12
F.3d 754, 759 (8th Cir. 1993) (use of a stun gun to enforce compliance with
a simple housekeeping order was “unnecessary and wanton”); DeSpain v.
Uphoff, 264 F.3d 965, 977-979 (10th Cir. 2001) (same, gratuitous discharge
of pepper spray); Williams v. Benjamin, 77 F.3d 756, 764-765 (4th Cir.

“Whether the government purposes served by creating and
distributing the videotape would have alternatively been served or served as
well by a press conference without the controversial videotape are
questions we need not answer. It is unnecessary for us to inquire into the
alternative means by which the police could achieve the same goals, so long
as the method used is constitutional, as it is here.” Caldarola, 343 F.3d at
577.
14

13

1996) (refusing to allow a restrained prisoner to wash chemical mace from
his eyes). The court discerns nothing in the facts of this case that come
anywhere near satisfying the Estelle standard. Consequently, there is no
cognizable violation of the Eighth Amendment.
Finally, Brown claims that his Fourteen Amendment right to due
process was violated because he was presented in the media with hand and
leg restraints “in a posture connoting guilt,” while indictments against him
were still pending. 15 Lauro, 219 F.3d at 212 n.7. “[R]eputation alone, apart
from some more tangible interests such as employment, is [n]either ‘liberty’
[n]or ‘property’ by itself sufficient to invoke the procedural protection of
the Due Process Clause.” Paul v. Davis, 424 U.S. 693, 701 (1976). Brown
does not allege that his extradition from Georgia to Massachusetts was
procedurally deficient, or that the perp walk had a prejudicial impact on the
outcome of his [then] pending indictments.

Without identifying some

protectable tangible interest adversely affected by the perp walk, Brown’s
due process claim fails as well. In sum, because defendants’ conduct in this

Brown, as an admittedly convicted felon and escapee, was not in
the same position as a person arrested before an adjudication of guilt, to
whom the presumption of “innocent until proven guilty” attaches with full
force.
15

14

case does not amount to a violation of Brown’s constitutional rights, Brown
has failed to allege a viable claim under section 1983 or section 1985. 16

Cinelli is also entitled to judgment on the pleadings as a matter of
law because Brown’s Complaint was filed outside the statute of limitations.
For limitation purposes, section 1983 claims are “best characterized as
personal injury actions,” Wilson v. Garcia, 471 U.S. 261, 280 (1985), and
“borrow the statute of limitations applicable to personal injury actions
under the law of the forum state.” Street v. Vose, 936 F.2d 38, 39 (1st Cir.
1991).
16

Brown II was filed three years and ten months after the complained-of perp
walk, which is indisputably beyond the two-year statute of limitations for
personal injury actions in Georgia, see Ga. Code §9-3-33, and the three-year
statute of limitations in Massachusetts. See Mass. Gen. Laws ch. 260, § 2A.
Brown I was filed two years and eight months after the perp walk, well after
the expiration of the Georgia limitations period, but within the
Massachusetts limitations period. Massachusetts law permits the refiling of
a timely-instituted action within one year of dismissal for “any matter of
form.” Mass. Gen. Law ch. 260, § 32. Whether Brown II is a viable refiling
turns on whether Brown I is subject to the Georgia or Massachusetts
limitations period.
Brown I is governed by the Georgia statute of limitations because at the
time of its filing, venue was proper only in Georgia. Although Brown I was
dismissed rather than transferred under section 1406, the alternative
outcome would not impact the applicable statute of limitations. Where a
transfer is (or would have been) made for improper venue, the transferee
court (and not the transferor) court’s law governs. See Davis v. Louisiana
State Univ., 876 F.2d 412, 413 (5th Cir. 1989) (where venue for a section
1983 action was improper, the statute of limitations of the state of the
transferee court applies); see also Meyer v. Callahan, 2010 WL 4916563, at
*1 n.3 (D.N.H. Nov. 29, 2010) (“While the First Circuit has not addressed
this issue, many circuits hold that – unlike a transfer pursuant to § 1404(a)
– a transfer under § 1406(a) mandates the application of the transferee’s
choice-of-law rules. See, e.g., Trierweiler v. Croxton & Trench Holding
15

ORDER
For the foregoing reasons, Cinelli’s motion for judgment on the
pleadings is ALLOWED. The Clerk will enter judgment for defendants 17
and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

Corp., 90 F.3d 1523, 1532 (10th Cir. 1996); Manley v. Engram, 755 F.2d
1463, 1470 (11th Cir. 1985); Nelson v. Int’l Paint Co., 716 F.2d 640, 643 (9th
Cir. 1983); Ellis v. Great Sw. Corp., 646 F.2d 1099, 1103-[11]11 (5th Cir.
1981); Renyo v. Piper Aircraft Co., 630 F.2d 149, 165 (3d Cir. 1980), rev’d
on other grounds, 454 U.S. 235 (1981); Martin v. Stokes, 623 F.2d 469,
472-[4]73 (6th Cir. 1980). By making his transfer to New Hampshire
pursuant to §§ 1406(a) and 1631, District Judge Jonker determined that the
District Court of Michigan was an improper venue for the suit. See 28
U.S.C. § 1406(a). Therefore, the plaintiff should not be afforded the
application of an improper venue’s choice-of-law rules.”).
Policy considerations also dictate this outcome. Because section 1983
claims borrow the statute of limitations of the forum state, a plaintiff
should not be able to avoid the shorter statute of limitations of the proper
forum state by instituting an action in a state with a longer limitations
period.
The rationale of this decision applies with equal force to Pepe, who
has made a limited appearance in this litigation to seek dismissal of the
Amended Complaint against him on the independent ground of
insufficiency of service. See Dkt. # 39. Consequently, he will be dismissed
from the Complaint as well.
17

16