Justiniano v. Walker et al

Filing 33

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS adopting Report and Recommendations re 27 Report and Recommendations. Action on motion: ; granting 9 Motion to Dismiss; denying 23 Motion to Dismiss for Failure to State a Claim. (Attachments: # 1 Report and Recommendations). "After consideration of plaintiff's objections thereto (Docket No. 31), Report and Recommendation is accepted and adopted." (Lima, Christine)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DAMARIS JUSTINIANO, as the personal
representative of the estate of Wilfredo
Justiniano, Jr.,
Plaintiff,
v.

Civil Action No. 15-cv-11587-NMG

STEPHEN V. WALKER and TIMOTHY P.
ALBEN,
Defendants.

REPORT AND RECOMMENDATION REGARDING DEFENDANT TIMOTHY
ALBEN’S MOTION TO DISMISS AND
DEFENDANT STEPHEN WALKER’S MOTION TO DISMISS
(Dkt. Nos. 9 and 23)
CABELL, U.S.M.J.
On June 14, 2013, Wilfredo Justiniano Jr. was killed following an encounter with
Massachusetts State Police Trooper Stephen Walker (“Trooper Walker”). The plaintiff, Damaris
Justiniano, has brought suit as the personal representative of Justiniano’s estate against Trooper
Walker and his supervisor, MSP Colonel Timothy Alben (“Colonel Alben”). Trooper Walker
moves to dismiss one of the two counts against him while Colonel Alben moves to dismiss both
counts against him. (Dkt. Nos. 23 and 9). For the reasons discussed below, I recommend that
Defendant Walker’s motion to dismiss be denied, but that Defendant Alben’s motion to dismiss
be granted.

I.

RELEVANT FACTUAL BACKGROUND
The facts are taken from the complaint and are accepted as true for purposes of the present

motions. Trooper Walker was at all relevant times a Massachusetts State Police Officer. On June

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14, 2013, at approximately 8:00 A.M., Trooper Walker responded to a call for medical assistance
on Route 28 near the Milton-Quincy line. The call for assistance arose from a 911 call from Ms.
Karen Kryiakides. She had phoned 911 to report that she had been following Justiniano’s
erratically moving vehicle. When he pulled over to the side of the road she did too, and she then
left her car to check on him. She stated that he appeared distraught and she worried he might be
having a heart attack.
Upon his arrival Trooper Walker saw Justiniano’s car off to the side of the road, behind
Ms. Kryiakides’ car. Justiniano was standing between the two vehicles. He appeared distraught
and Trooper Walker called for backup because he had a “bad feeling” about the situation. But,
instead of waiting for backup to arrive, Trooper Walker left his cruiser and approached Justiniano.
Justiniano was unarmed and was not suspected of having committed a crime.
As Trooper Walker approached him, Justiniano stated that he was an “undercover cop” and
he asked Trooper Walker to kill him. Justiniano began approaching Trooper Walker and told
Trooper Walker that he was going to kill him. Trooper Walker in response sprayed Justiniano in
the face with pepper spray. Some of the spray blew back into Trooper Walker’s face and affected
his vision. Trooper Walker began to back away from Justiniano but then pulled his gun and
“double tapped” it, that is, he fired it twice. The first shot passed through Justiniano’s left wrist
and the second shot hit Justiniano in the chest. Justiniano fell to his knees and then to the ground.
Trooper Walker called again for backup and to report that shots had been fired.
Justiniano was lying on the ground with labored breathing but attempted to get up. Trooper
Walker used his foot to knock him back to the ground, and stood over him with his firearm aimed
at him until another officer, Trooper Durning, arrived a few minutes later. The two troopers
handcuffed Justiniano and Trooper Durning sprayed him again. Ultimately, five officers and two

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firefighters assisted in handcuffing Justiniano. He was brought to a local hospital and was declared
dead later that morning. (Dkt. No. 1 at ¶¶ 10-32).

II.

THE COMPLAINT
Counts One and Two are directed at Trooper Walker. Count One alleges a violation under

42 U.S.C. § 1983 of the Fourth Amendment to the U.S. Constitution.1 Count Two appears to assert
two separate causes of action. It alleges a violation under section 1983 of the Fourteenth
Amendment (as opposed to the Fourth Amendment as alleged in Count One), but also alleges a
violation of the Massachusetts Wrongful Death statute, M.G.L. c. 229, § 2.2 Trooper Walker
moves to dismiss only Count Two.
Counts Three and Four name Colonel Alben. Count Three alleges a violation under section
1983 of the Fourth and Fourteenth Amendments, on the ground that Colonel Alben failed as

1

42 U.S.C. § 1983 provides that: [e]very person who, under color of any statute, ordinance, regulation, custom or
usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress. Section
1983 does not create substantive rights but is rather a procedural mechanism for enforcing constitutional or statutory
rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). It is the plaintiff's burden to identify the particular underlying
constitutional or statutory right that has been impacted. In order to prevail in a § 1983 claim a plaintiff must bring
forth evidence that (1) the defendant acted “under color of state law” and (2) deprived the plaintiff of a federally
protected right. Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001).
2

Counts One and Two could benefit from greater clarity. The two counts purport by virtue of their subtitles to allege
violations of the Fourth and Fourteenth Amendments, respectively, but much of the language in both is identical and
both appear to focus on the shooting of Justiniano rather than separate events. Moreover, both counts allege that
Trooper Walker “deprived [Justiniano] of his right to life under the Fourteenth Amendment,” although the use of that
word in Count One may just be a scrivener’s error. (See Compl., at ¶¶ 38, 48). The plaintiff’s opposition explains
that Count One alleges that Trooper Walker violated Justiniano’s Fourth Amendment rights when he unlawfully shot
Justiniano “after receiving a call for assistance,” while Count Two alleges that he violated Justiniano’s Fourteenth
Amendment rights when he “willfully and recklessly” shot him “in the chest” and thus “depriv[ed] him of his right to
life.” Aside from some different terminology and Count Two’s inclusion of the Massachusetts Wrongful Death
Statute, it is still not entirely clear what distinguishes Counts One and Two. Further still, the plaintiff seeks only
section 1983 type damages in Count One and by contrast seeks only wrongful death type damages in Count Two.
More, the plaintiff’s opposition seems to treat Count Two as alleging really only a violation of M.G.L. c. 229, § 2,
going so far as to offer no response at all to the defendant’s argument that the portion of Count Two alleging a federal
civil rights claim is duplicative of the claim in Count One. While not fatal here, these concerns should receive more
attention.

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Trooper Walker’s supervisor to provide him with the proper training and resources that would
have helped to prevent Justiniano’s shooting. Count Four alleges that the same conduct referenced
in Count Three also constitutes a violation under 42 U.S.C. § 1983 of the Fourteenth Amendment.
It also alleges a wrongful death claim under M.G.L. c. 229, § 2, on the ground that Trooper Alben’s
failure to provide adequate training led to Justiniano’s being shot.3

III.

LEGAL FRAMEWORK
Rule 12(b)(6) motions to dismiss require the Court to “assume the truth of all well-

plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally
Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75,
77 (1st Cir. 1999)). In order to survive a motion to dismiss, the plaintiff must state a claim that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1977 (2007).
The“[f]actual allegations must be enough to raise a right to relief above the speculative level …
on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.
at 555 (internal citations omitted). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the plaintiff’s well-pleaded facts do not “possess enough heft to
show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st
Cir. 2008) (internal quotations and original alterations omitted). As such, “[t]he relevant inquiry

3

The counts against Colonel Alben are also not entirely unambiguous. Both counts contain much of the same language
and both purport by dint of their subtitles to allege section 1983 violations. And curiously, both counts allege (through
their subtitles) a violation of the Fourteenth Amendment. But Count Four claims also in the subtitle to include a claim
for violation of M.G.L. c. 229, § 2, and the count as a whole focuses solely on that statute. None of the paragraphs
within Count Four, for example, speak of a section 1983 violation. In that regard, Count Three seeks section 1983
type damages while Count Four asks only for those damages available to a plaintiff prevailing in a wrongful death
suit.

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focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to
draw from the facts alleged in the complaint.” Cayo v. Fitzpatrick, No. CIV.A. 13-30113-TSH,
2015 WL 1307319, at *1 (D. Mass. Mar. 24, 2015) (quoting Ocasio–Hernàndez v. Fortuño–
Burset, 640 F.3d 1, 13 (1st Cir.2011)). In determining whether a complaint crosses the plausibility
threshold, ‘the reviewing Court [must] draw on its judicial experience and common sense.’”
Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Iqbal, 556 U.S. at
679, 129 S.Ct. 1937)). Where “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 complaint is
open to dismissal.” Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012)
(quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)).

IV.

DISCUSSION
Count Two States a Valid Claim Against Trooper Walker
Count Two alleges a violation under section 1983 of the Fourteenth Amendment, as well

as a claim for wrongful death under M.G.L. ch. 229, § 2.
With respect to the wrongful death claim, which the parties appear to treat as Count Two’s
principal claim, the statute provides that a “person who (1) by his negligence causes the death of
a person, or (2) by willful, wanton or reckless act causes the death of a person under such
circumstances that the deceased could have recovered damages for personal injuries if his death
had not resulted, ... shall be liable in damages.” M.G.L. ch. 229, § 2. As noted, the complaint
alleges that Trooper Walker acted “willfully or recklessly.” Trooper Walker argues that he is
immune from liability on this claim because the Massachusetts Tort Claims Act (MTCA)
“categorically protects public employees acting within the scope of their employment from

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liability for ‘personal injury or death’ caused by their individual negligence.” Maraj v.
Massachusetts, 836 F. Supp. 2d 17, 31 (D. Mass. 2011) (quoting M.G.L. ch. 258, § 2). The plaintiff
counters that the MTCA does not protect Trooper Walker here because the complaint alleges that
Trooper Walker acted intentionally rather than negligently, and the MTCA does not shield public
employees from liability for claims arising out of intentional torts. The Court agrees.
Under the MTCA, “no ... public employee ... shall be liable for any injury or loss of
property or personal injury ... caused by his negligent or wrongful act or omission while acting
within the scope of his office or employment.” M.G.L. ch. 258, § 2. The statute therefore
immunizes public employees from liability for their negligent or wrongful acts committed while
acting within the scope of their employment. See Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir.
2003) (“Caisse's negligence claims against the Department of Corrections defendants in their
individual capacities are barred because the Tort Claims Act shields public employees from
personal liability for negligent conduct”). Conversely, section ten of the MTCA exempts public
employees from the immunity in section two for claims arising out of intentional torts, and thus
renders them potentially liable for an intentional tort. See McNamara v. Honeyman, 406 Mass.
43, 546 N.E.2d 139, 142 (1989) (“[s]ection 10, which provides for exemptions from operation of
§ 2, among others, states in pertinent part that a public employee shall not be immune from 'any
claim arising out of an intentional tort'”); Spring v. Geriatric Authority of Holyoke, 394 Mass. 274,
475 N.E.2d 727, 735 (1985) (“[w]hile public employers ... may not be held liable for intentional
torts committed by their employees, the employees may be personally liable for any harm they
have caused”); Breault v. Chairman of Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 35
(1987).
In the present case, the complaint alleges that Trooper Walker knew Justiniano was in front

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of him and yet “double tapped” his firearm in Justiniano’s direction, hitting him with both shots,
once in the wrist and once in the chest. If true, these facts would support an inference that Trooper
Walker acted willfully with the intent to harm Justiniano. Although recklessness is considered
negligent, rather than intentional, conduct for purposes of the MTCA, willful conduct connotes
action intended to do harm and would be viewed as an intentional tort. See Kowalski v. Gagne,
914 F.2d 299, 303 (1st Cir. 1990) (“willful conduct has been described as action intended to do
harm, while conduct is wanton or reckless when ‘in the face of a known or obvious risk [one]
intentionally persist[s] in conduct involving a high degree of probability that substantial harm
would result to another.’”); Stamps v. Town of Framingham, 38 F.Supp.3d 146, 159 (D. Mass.
2014) (noting that recklessness is considered negligent and implicitly treating willful or wanton
conduct as intentional); Farrah ex rel. Estate of Santana v. Gondella, 725 F.Supp.2d 238 (D. Mass.
2010) (same). Accordingly, because the MTCA does not bar claims against a public employee for
intentional torts, Count Two states a valid claim for wrongful death.
With respect to the section 1983 claim, Count Two also asserts, without any elaboration, a
violation of the Fourteenth Amendment. Trooper Walker argues that this 1983 claim is repetitive
of the 1983 claim asserted in Count One. As he does not move to dismiss Count One, he reasons
that this portion of Count Two is superfluous and therefore should be dismissed. Although the
plaintiff’s opposition does not address this argument, the Court finds that the two 1983 claims are
not repetitive.
Count One alleges a violation of the plaintiff’s Fourth Amendment rights whereas Count
Two alleges a violation of the Fourteenth Amendment. Even assuming that both claims relate
principally to Trooper Walker’s use of deadly force, there is a distinction between an excessive
force claim brought under the Fourth Amendment versus one brought under the Fourteenth. A

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Fourth Amendment claim applies “in the context of arrests, investigatory stops and other seizures,
and looks at whether a party’s right against unlawful search and seizure has been violated.”
O’Connor v. Cintron, No. 04-05633, 2007 WL 4509156, at *3 (Mass. Super. Oct. 29, 2007); see
Graham v. Connor, 490 U.S. 386, 397 (1989). Thus, claims that law enforcement officers have
applied deadly force in the course of an arrest, investigatory stop, or other seizure of a free citizen
“should be analyzed under the Fourth Amendment and its ‘reasonable’ standard, rather than under
a ‘substantive due process’ approach [when used to target the same underlying governmental
conduct.]” Malden v. City of Waukegan, III., No. 04-2822, 2005 WL 1139628, at *2 (N.D. Ill May
11, 2005). By contrast, “[c]laims of excessive force by a police officer arising outside the context
of a seizure, and thus outside the Fourth Amendment, are analyzed under [Fourteenth Amendment]
substantive due process principles.” Cummings v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001).
In the present case, even accepting that the shooting itself was the most significant event,
determining when a seizure has occurred can still be a fact intensive inquiry and it is not selfevident at this juncture at exactly what point the plaintiff’s Fourth Amendment interests were
implicated. See, e.g., Connors v. McNulty, 697 F.2d 18 (1st Cir. 1983) (treating fatal police
shooting as 14th Amendment claim); Brendlin v. California, 551 U.S. 249, 254 (2007) (“A seizure
of a person occurs when, ‘“by means of physical force or show of authority,”’ an officer takes
intentional action that “terminates or restrains [a person’s] freedom of movement.”) (quoting
Florida v. Bostwick, 501 U.S. 429, 434 (1991). Thus, to the extent there is any ambiguity as to
whether and how much of Trooper Walker’s conduct occurred before or after the plaintiff was
seized, Counts One and Two apply to different events and are not repetitive.
In sum, Count Two states a valid claim for relief.

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Count Three Fails to State a Claim Against Colonel Alben
Count Three alleges under section 1983 that Colonel Alben violated the plaintiff’s Fourth
and Fourteenth Amendment rights.

Colonel Alben was at all relevant times the MSP

superintendent. The complaint alleges that Colonel Alben failed to train MSP officers (including
Trooper Walker) regarding how best to treat mentally ill individuals and to respond to mental
health related incidents, and that this failure resulted in the plaintiff’s death. Colonel Alben argues
that he cannot be held vicariously liable for the actions of Trooper Walker. He argues also that
the facts fail to demonstrate that he himself violated any of the plaintiff’s rights.4 Colonel Alben
argues that he is entitled to qualified immunity in any event.
It is well established that “a superior officer cannot be held vicariously liable under 42
U.S.C. § 1983 on a respondeat superior theory, … [but] he may be found liable under section 1983
on the basis of his own acts or omissions.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
581 (1st Cir. 1994) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978)). In that
regard, “a supervisor may be held liable for what he does (or fails to do) if his behavior
demonstrates deliberate indifference to conduct that is itself violative of a plaintiff’s constitutional
rights.” Id. (citations omitted). Even where a supervisor acts with deliberate indifference,
however, a plaintiff must still “affirmatively connect the supervisor’s conduct to the subordinate’s
violative act or omission.” Id. (citing Bowen v. Manchester, 966 F.2d 13, 20 (1st Cir. 1992)). The
“causation requirement can be satisfied even if the supervisor did not participate directly in the
conduct that violated a citizen’s rights; for example, a sufficient causal nexus may be found if the

Inasmuch as the parties cite case law involving claims against a municipality in arguing over Colonel Alben’s
potential liability, it bears noting that the legal elements of an individual’s supervisory liability and for municipal
liability are “similar enough that the same standards of fault and causation should govern.” See Doe v. Taylor Ind.
Sch. Dist., 15 F. 3d 443, 453 (5th Cir. 1994). This is also true where, as here, the complaint alleges that Colonel Alben
was acting under color of state law and he is not being sued in his individual capacity.
4

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supervisor knew of, overtly or tacitly approved of, or purposely disregarded the conduct.” Id.
(citing Larez v. Los Angeles, 946 F. 2d 630, 646 (9th Cir. 1991); Lipsett v. University of Puerto
Rico, 864 F.2d 881, 902-03 (1st Cir. 1988)). Stated differently, liability may attach and a causal
link can be established when a supervisor is on notice of a history of widespread abuse and fails
to take corrective action by training or closely overseeing subordinates. Id. (citing Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990)).
In the present case, the plaintiff alleges that Colonel Alben acted with deliberate
indifference to the rights of Justiniano by (1) failing to implement a policy for dealing with mental
health crises without using lethal force; (2) failing to train officers in how to avoid the use of lethal
force during mental health crises; (3) having a policy that affirmatively treats people experiencing
a mental health crisis as violent criminals and subjects them to lethal force; (4) failing to train
officers on how to de-escalate situations with the mentally ill; and (5) refusing to change the MSP
policies. In support of this broad claim, the plaintiff points to several studies conducted across the
country reportedly demonstrating the need for better training because “without it, officers can
make a crisis worse, either out of fear or in a reflexive effort to control the situation and enforce
compliance.” (Complaint, at ¶ 63). The plaintiff contends that Colonel Alben was aware of the
need for better training and his failure to implement that training evinced deliberate indifference
and led to the plaintiff’s death.
Colonel Alben argues that the complaint falls short of alleging facts sufficient to establish
that he acted with deliberate indifference, or that proper training would have prevented Justiniano’s
death. The Court agrees. As an initial matter, “‘[t]he liability criteria for ‘failure to train’ claims
are exceptionally stringent …’” Barker v. City of Boston, 795 F. Supp. 2d 117, 122 (D. Mass.
2011) (quoting Hayden v. Grayson, 134 F. 3d 449, 456 (1st Cir. 1998)). The complaint contains

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several conclusory statements decrying the need for better training regarding the treatment of
mentally ill persons, along with assertions regarding the MSP’s own inadequate training, and
quotes a statement where Colonel Alben apparently acknowledges that “in terms of negotiating
with someone with mental health [issues], there is not a great deal of training in law enforcement.”
(Compl., at ¶ 66). Even taking these allegations as true, however, they “fall short of the requisite
showing that [the MSP] had a policy that was ‘deliberately indifferent’ to the constitutional rights
of mentally ill individuals.” Barker, 795 F. Supp. 2d at 123 (citing Board of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 409 (1997)). Indeed, even assuming that more and better training is needed,
the plaintiff has failed to allege facts making it plausible that Colonel Alben was “deliberately
indifferent to a known risk that [his] officers would use excessive force against [such a] mentally
ill individual.”

Id.

Pointing to studies conducted elsewhere across the country does not

demonstrate that Alben “ignored a known or obvious risk of a highly predictable severe harm.”
Id.
Moreover, even assuming that Colonel Alben acted with deliberate indifference in failing
to train MSP officers on how to respond to situations involving mentally ill individuals, the
plaintiff has failed to establish that this failure caused Justiniano’s death. The complaint alleges
that Trooper Walker perhaps acted improperly in light of Justiniano’s mental condition but there
is no allegation that Trooper Walker’s knew that Justiniano suffered from a mental illness, or that
his decision to fire his weapon was related to any mental illness that Justiniano may have suffered.
Id. The complaint “simply alleges that [Walker] approached, fired [his] weapon[ ] at, and killed
an unarmed, non-threatening, harmless individual without provocation. If proven, this would be
an extreme and tragic case of the use of excessive force, but no reasonable jury could infer from
the facts alleged here that further training by [Colonel Alben] regarding how appropriately to deal

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with individuals with mental illness would have prevented this shooting.” Id. The facts are
admittedly troubling but they “simply fail to establish a causal nexus between any alleged
deficiency of training regarding the treatment of mentally ill individuals and the shooting of
[Justiniano.]” Id. at 123-24.
Because the Court concludes that Colonel Alben did not act with deliberate indifference in
failing to train Trooper Walker and other officers regarding interactions with mentally ill
individuals, and because, even assuming he did, there is no basis to infer that the failure led to
Trooper Walker’s decision to shoot Justiniano, Count Three fails to state a valid section 1983 claim
and therefore should be dismissed.5

Count Four Fails to State a Valid Claim against Colonel Alben
Count Four, like Count Two, appears to allege two causes of action, including a wrongful
death claim under M.G.L. ch. 229, § 2 and a claim under section 1983 for a violation of the
Fourteenth Amendment. Specifically, the complaint alleges that Colonel Alben’s “affirmative
failures” to “change the policies, procedures, training, and equipment to enable troopers to

For the same reasons, Colonel Alben would be entitled to qualified immunity. “The doctrine of qualified immunity
protects public employees ‘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.’” Lucia v. City of Peabody, 971 F.
Supp. 2d 153, 163 (1st Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has
set forth a two-part inquiry with respect to determining whether qualified immunity is warranted: (1) “whether the
facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue
was clearly established at the time of the defendant’s alleged misconduct.” Id. (citing Pearson v. Callahan, 555 U.S.
223 (2009)). The plaintiff asserts that Colonel Alben acted with deliberate indifference to Justiniano’s constitutional
rights by virtue of his failure to ensure proper training, but the Court concludes here that there is no basis to find that
Colonel Acted with deliberate indifference, and therefore rejects this argument. While it is true that Justiniano had a
right to be free from the use of excessive force and had a clearly established right to life, Colonel Alben did not violate
these rights. He is accordingly entitled to qualified immunity. Febus-Rodriguez v. Betancourt-Lebron, 14 F. 3d 87,
94 (1st Cir. 1994) (where supervisors were not callously or recklessly indifferent for purposes of a failure to train
claim, the same supervisors were entitled to qualified immunity because the plaintiff failed to demonstrate that the
supervisors’ violated the plaintiff’s constitutional rights); see also, Bowen v. City of Manchester, 966 F. 2d 13, 16 (1st
Cir. 1992) (“Unless the plaintiff’s allegations state a claim of [a] violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before the commencement of discovery.” (citation omitted)).
5

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properly interact with the mentally ill deprived Wilfredo Justiniano of his life and civil rights by
making the fatal shooting an inevitable outcome of the non-criminal interaction.” (Complaint, at
¶ 82).
With respect to the wrongful death claim, Colonel Alben argued in his motion to dismiss
that it is barred against him because the MTCA shields public employees from liability for
negligent torts. M.G.L. ch. 258, § 2. The plaintiff clarified in her opposition that she does not
allege negligence. Rather, she alleges that Colonel Alben’s conduct was “willfull, wanton or
reckless.” For that reason, she argues, the wrongful death claim alleges an intentional tort which
is not immunized under the MTCA. (Plaintiff’s Opposition at p. 20).
With that clarification, the Court concludes that Count Four fails to state a valid wrongful
death claim against Trooper Alben. In order to prove that Colonel Alben acted willfully or
wantonly, the plaintiff would essentially need to show that the MSP had a policy that was
deliberately indifferent to the constitutional rights of mentally ill individuals. See Chapman v.
Keltner, 241 F. 3d 842, 847 (11th Cir. 2001) (citing Payne for Hicks v. Churchich, 161 F.3d 1030,
1041 n. 13 (7th Cir. 1998)) (“the standard for assessing whether conduct is willful and wanton is
‘remarkably similar’ to the deliberate indifference standard.”). As discussed above with respect
to Count Three, the facts alleged in the complaint fail to support a finding that Colonel Alben acted
with deliberate indifference. Rather, the complaint offers mostly conclusory statements regarding
inadequate training and studies conducted in other cities. It does not, by contrast, contain
allegations showing that the Colonel Alben himself ignored a known or obvious risk of a highly
predictable severe harm. See Barker v. City of Boston, 795 F,Supp.2d at 123-24. Moreover, the
complaint does not allege facts to show causation, that is, that Trooper Walker shot Justiniano
because he had failed to receive training on how to deal with the mentally ill. Accordingly, Count

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Four does not state a valid wrongful death claim.
Finally, Count Four also appears to assert a section 1983 claim for violation of the
Fourteenth Amendment. But the allusion to section 1983 appears only in the heading’s subtitle
and is not elaborated upon or mentioned in the narrative paragraphs. To the extent the plaintiff
contends that Count Four does in fact assert a section 1983 claim, the claim would appear to be
duplicative of the Fourteenth Amendment claim contained in Count Three and therefore should be
dismissed. However, to the extent the plaintiff contends that Count Four’s section 1983 claim
alleges something different and apart from what is alleged in Count Three, it is impermissibly
vague and fails to state plainly why the plaintiff is entitled to relief. See Fed. R. Civ. P. 8(a)(2). It
still should be dismissed in that event, but with leave to amend, assuming there is a good faith
basis to do so.

V.

CONCLUSION
For the foregoing reasons, it is respectfully recommended that Trooper Walker’s motion

to dismiss be DENIED (Dkt. No. 23), and that Trooper Alben’s motion to dismiss be ALLOWED.
(Dkt. No. 9). The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b),
any party who objects to these proposed findings and recommendations must file specific written
objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report
and Recommendation. The written objections must specifically identify the portion of the
proposed findings, recommendations, or report to which objection is made and the basis for such
objections. The parties are further advised that the United States Court of Appeals for this Circuit
has repeatedly indicated that failure to comply with Fed. R. Civ. P. 72(b), will preclude further
appellate review of the District Court's order based on this Report and Recommendation. See

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Case 1:15-cv-11587-NMG Document 27 Filed 08/24/16 Page 15 of 15

Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States
v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor
Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982);
Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also, Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466 (1985).
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.

DATED: August 24, 2016

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