Ramos v. Stanton et al

Filing 14

Judge F. Dennis Saylor, IV: ORDER entered. Memorandum and Order on Plaintiff's Motion to Remand, Plaintiff's Motion to Amend the Complaint, and Defendant's Motion to Dismiss. Plaintiff's motion to remand is DENIED, plaintiff's motion for leave to amend the complaint is DENIED, and defendants' motion to dismiss is GRANTED. Copy mailed to plaintiff. (Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
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THOMAS RAMOS,
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Plaintiff,
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v.
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JORGE SILVA, VICTOR MORENCY, and
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SCOTT STANTON,
)
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Defendants.
)
___________________________________________)

Civil Action No.
16-10083-FDS

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REMAND,
PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, AND
DEFENDANT’S MOTION TO DISMISS
SAYLOR, J.
This is a civil rights action arising out of an arrest for trespassing. The complaint was
filed by plaintiff Thomas Ramos on October 6, 2015. The named defendants are officers of the
Dartmouth Police Department and are all sued in their individual and official capacities. Among
other things, the complaint alleges that defendants violated Ramos’s civil rights when they
arrested him for trespassing following his attempt to occupy a home at 40 Lynnwood Street in
Dartmouth, Massachusetts.
The complaint was originally filed in Bristol Superior Court. On January 19, 2016,
defendants removed the action to this Court on the ground that the complaint stated federal civil
rights claims under 42 U.S.C. § 1983. On January 27, 2016, defendants filed a motion to dismiss
the complaint. Plaintiff has not filed an opposition to that motion, choosing instead to file a
motion to remand the case to state court on February 3, 2016, followed by a motion to amend the

complaint on February 11, 2016. For the following reasons, plaintiff’s motions for remand and
leave to file an amended complaint will be denied, and defendants’ motion to dismiss will be
granted.
I.

Background
The original complaint is relatively light on factual allegations. On July 20, 2015,

Thomas Ramos entered a vacant property at 40 Lynnwood Street in Dartmouth, Massachusetts.
(Compl. ¶ 5). According to the complaint, Ramos “did declare the property to be his possession
and did so adversely to the owner.” (Id.). Approximately one month later, on August 17, 2015,
the Dartmouth Police Department received a report of suspicious activity at the property and
dispatched officers Jorge Silva, Victor Morency, and Scott Stanton to investigate. (Id. ¶ 6).
Upon arrival at the property, the three officers spoke with Ramos, who told them that he
lived at and owned the property, which he said he had acquired from the Federal National
Mortgage Association (“FNMA”). (Id. ¶¶ 7-8). The complaint alleges that the defendants then
arrested Ramos. (Id. ¶ 9).
The proposed amended complaint asserts additional factual allegations. According to the
amended complaint, after Ramos informed the officers that he had acquired the property in
question, defendant Morency made a telephone call to Charles Roberts, using a speakerphone
feature so that Ramos could hear the conversation. (Am. Compl. ¶ 12). 1 Roberts told Morency
that he was familiar with Ramos from past dealings, and that Ramos had filed fraudulent
“adverse possession” forms with the registry of deeds. (Id. ¶¶ 13-14). The proposed amended
complaint further alleges that Roberts instructed the officers to arrest Ramos and remove him

1

The proposed amended complaint names the “Charles Roberts Association” as defendant. The factual
allegations, however, suggest that Morency’s phone call was made to an individual named Charles Roberts;
presumably, that person is the owner of the entity named as defendant.

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from the property, which they did. (Id. ¶¶ 14-15). Following Ramos’s arrest, the officers
entered the property without a warrant and seized some of his property there. (Id. at ¶ 17).
Ramos was charged with breaking and entering a building in the daytime with the intent to
commit a felony in violation of Mass. Gen. Laws ch. 266, § 18B and destruction of property in
violation of Mass. Gen. Laws ch. 266, § 127A. (Defs. Mem. Ex. A). 2 Ramos pleaded guilty to
both counts at a pre-trial hearing on September 17, 2015. (Id.).
The original complaint appears to allege four causes of action in three counts against the
three officers: Count One asserts a common-law claim for abuse of process; Count Two asserts a
claim for intentional infliction of emotional distress; and Count Three asserts claims for civil
rights violations under 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 12, § 11I.
The proposed amended complaint would add two new defendants—the Charles Roberts
Association, a Massachusetts corporation, and FNMA. The new defendants appear to be added
to Ramos’s claims for abuse of process (Count One), intentional infliction of emotional distress
(Count Two), and the claim for civil rights violations under Massachusetts law (Count Three).
In addition, the proposed amended complaint asserts two new causes of action. Count Four
asserts a claim against new defendants Charles Roberts Association and FNMA only for
“summary process violation[s]” under Mass. Gen. Laws ch. 184, § 18. Count Five asserts a
common-law claim for defamation against existing defendant Silva only.
II.

Plaintiff’s Motion to Remand
A defendant may remove any civil action over which the federal district court has

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The original complaint did not refer to Ramos’s prosecution or guilty plea at all. Instead, defendants
provided a copy of the relevant state court docket sheets in connection with their motion to dismiss. The Court may
consider official public records and documents that are central to plaintiff’s claims on a motion to dismiss without
converting the motion into one for summary judgment. See Town of Barnstable v. O’Connor, 786 F.3d 130, 141
n.12 (1st Cir. 2015). Accordingly, the Court will consider the docket sheets from Ramos’s state-court prosecution in
deciding the present motions.

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original jurisdiction. 28 U.S.C. § 1441(a). A district court's original jurisdiction extends, among
other things, to claims that arise “under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
Whether a claim “arises under” federal law generally depends on an evaluation of the
“well-pleaded complaint.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986).
Here, Count Three of the complaint specifically asserts a claim under 42 U.S.C. § 1983 based on
alleged violations of the Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution. That claim, alone, is sufficient to establish a cause of action under federal law, and
therefore to provide subject-matter jurisdiction. When an action includes both federal-law
claims and state-law claims, the district court may exercise supplemental jurisdiction over the
state-law claims. 28 U.S.C. § 1441(c). Accordingly, plaintiff’s motion to remand the case to
state court will be denied.
III.

Defendants’ Motion to Dismiss and Plaintiff’s Motion for Leave to Amend
Defendants filed their motion to dismiss this case shortly after removal. In response,

Ramos did not oppose that motion directly, but instead filed a motion for leave to amend the
complaint to add two new claims and two additional defendants. Because the motion to dismiss
and the motion to amend are both analyzed under essentially the same standard, the Court will
analyze all of Ramos’s original and proposed claims together.
A.

Legal Standard

Fed. R. Civ. P. 15 provides that a party may amend its pleading only under certain
circumstances. If the pleading is one to which a responsive pleading is required, a party may
amend its pleading as a matter of course within 21 days of the service of the responsive pleading
or service of a motion under Fed. R. Civ. P. 12, whichever is earlier. Fed. R. Civ. P. 15(1)(B).

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After that time, “a party may amend its pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). In determining whether to grant a motion to amend, the Court must “examine the
totality of the circumstances and [ ] exercise its informed discretion in constructing a balance of
pertinent considerations.” Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006)
(citing Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir. 1989)).
However, leave to amend may be denied for several reasons, including, inter alia, “futility of
amendment.” U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009).
When considering an opposition to a motion to amend on the grounds that amending the
complaint would be futile, the Court must apply the standard applicable to a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). Kenney v. State Street Corp., 2011 WL 4344452, at *2 (D. Mass.
Sept. 15, 2011); Hatch v. Dep't for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir.
2001). Whether a complaint should survive a motion to dismiss depends upon whether the
pleading satisfies the “plausibility” standard set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A claim is plausible on its face if it
raises a right to relief beyond a speculative level by pleading enough “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. While the Court will generally accept all well-pleaded factual
allegations in a complaint as true and draw all reasonable inferences in a plaintiff's favor, id., the
Court will disregard any “legal conclusion[s] couched as . . . fact” or “[t]hreadbare recitals of the
elements of a cause of action.” Ocasio-Hernadez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir.
2011) (quoting Iqbal, 556 U.S. at 678).

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B.

Analysis

Taken as a whole, Ramos’s claims purport to arise out of his belief that he “adversely
possessed” the property at 40 Lynnwood Street where he was arrested. In Massachusetts, the
acquisition of title through adverse possession requires “proof of non-permissive use which is
actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Town of Concord,
439 Mass. 416, 421 (2003) (quoting Kendall v. Selvaggio, 413 Mass. 619, 621-622 (1992));
Mass. Gen. Laws ch. 260, § 21. Ramos alleges that he occupied the property beginning on July
20, 2015, twenty-eight days before his arrest on August 17, 2015. (Compl. ¶ 5). Even assuming
that Ramos’s use of the property was open, notorious, and exclusive, his use still falls short of
the law’s twenty-year requirement by more than nineteen years and eleven months. Thus, as a
matter of law, the complaint does not allege facts that would establish that Ramos successfully
acquired the property by adverse possession. It is therefore clear that his claims—which all stem
from his alleged ownership of the property—must be dismissed.
1.

Abuse of Process Claim (Count One)

Count One of both the original and proposed amended complaints asserts a claim for
abuse of process. 3 To establish a claim of abuse of process, a plaintiff must show (1) that
“process” was used against him (2) for an “ulterior or illegitimate purpose” and (3) that some
harm occurred as a result. Psy-Ed Corp. v. Klein, 459 Mass. 697, 713 (2011). 4 “To sustain the
claim, ‘the fact finder must find that process was used to accomplish some ulterior purpose for
which it was not designed or intended, or which was not the legitimate purpose of the particular

3

Other than the proposed addition of Charles Roberts Association and FNMA as defendants, there are no
material changes to Count One in the proposed amended complaint.
4

“More precisely the word ‘process' in the context of abuse of process means causing papers to be issued
by a court to bring a party or property within its jurisdiction.” Vittands v. Sudduth, 49 Mass. App. Ct. 401, 406 n.9
(2000) (quotation and internal citation omitted).

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process employed.’” Id. (quoting Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass.
627, 636 (2010)). “An ulterior purpose is not simply the intent to harm the other party directly
by bringing suit, but rather the intent to gain some other end indirectly.” Psy-Ed, 459 Mass. at
713 n.35.
The complaint alleges that defendants instituted criminal proceedings against Ramos
“with the intent to eject/evict” him from the property. (Compl. ¶ 11; Am. Compl. ¶ 19).
Assuming that to be true, it does not establish that defendants tried to gain a collateral advantage
over Ramos through his arrest and prosecution. “The essence of [abuse of process] is the
malicious use of legal process to accomplish some ulterior purpose for which it was not designed
or intended, or which was not the legitimate purpose of the particular process employed.”
Carroll v. Gillespie, 14 Mass. App. Ct. 12, 26 (1982) (quotation and internal citation omitted).
Here, the complaint establishes beyond question that defendants used the legal process of arrest
and prosecution for the legitimate purpose of removing Ramos from a home where he had no
legal right to possession. Nor are there any other factual assertions alleging that defendants had
some other “ulterior or illegitimate purpose” in pursuing Ramos’s prosecution. Accordingly,
plaintiff’s motion for leave to amend the complaint to add new defendants to Count One will be
denied, and his claim for abuse of process against the officer defendants in the original complaint
will be dismissed.
2.

Intentional Infliction of Emotional Distress (Count Two)

Count Two of both complaints asserts a claim for intentional infliction of emotional
distress. 5 To establish a claim for intentional infliction of emotional distress under

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As with Count One, the only material difference between the original complaint and the proposed
amended complaint appears to be the addition of Charles Roberts Association and FNMA as defendants.

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Massachusetts law, the plaintiff must prove:
(1) that the actor intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his conduct; (2) that
the conduct was extreme and outrageous, was beyond all possible bounds of
decency[,] and was utterly intolerable in a civilized community; (3) that the
actions of the defendant were the cause of the plaintiff's distress; and (4) that the
emotional distress sustained by the plaintiff was severe and of a nature that no
reasonable man could be expected to endure it.
Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976) (citations and internal quotation
marks omitted). Courts apply a “very high” standard to claims of intentional infliction of
emotional distress, especially with respect to the requirement that the conduct in question is
extreme and outrageous, beyond all possible bounds of decency in a civilized community. See
Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996). Here, the defendants' conduct in
arresting Ramos was neither extreme nor outrageous, and the complaint contains no additional
facts that state a plausible claim for intentional or reckless infliction of emotional distress.
Accordingly, plaintiff’s motion for leave to amend the complaint to add new defendants to Count
Two will be denied, and his claim for intentional infliction of emotional distress against the
officer defendants in the original complaint will be dismissed.
3.

Civil Rights Violations (Count Three)

Count Three of both complaints asserts a claim for civil rights violations under both
federal and state civil rights statutes. 6
a.

42 U.S.C. § 1983

In Heck v. Humphrey, the Supreme Court held that a § 1983 claim is not cognizable if its
success would necessarily imply the invalidity of an underlying conviction or sentence. 512 U.S.

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Plaintiff’s claim under federal law is brought against the officer defendants only in both complaints. The
proposed amended complaint adds the two additional defendants to the state civil rights claim under Mass. Gen.
Laws ch. 12, § 11I only.

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477, 486-87 (1994). In determining whether a § 1983 claim is barred under Heck, the Court
“must consider the relationship between the § 1983 claim and the conviction, including asking
whether the plaintiff could prevail only by ‘negat[ing] an element of the offense of which he
[was] convicted.’” Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006) (quoting Heck, 512 U.S. at
486 n.6).
Defendants contend that Ramos’s guilty plea to the charges of breaking and entering and
destruction of property precludes him from now asserting a claim under 42 U.S.C. § 1983.
Although neither the original complaint nor the proposed amended complaint specifically allege
the precise basis for Ramos’s assertion that his constitutional rights were violated, it appears that,
as with the other counts, the § 1983 claim arises solely from his arrest by defendants and
subsequent prosecution. 7 Thus, in order for Ramos to succeed on his § 1983 claim would require
a finding that the arrest itself was unlawful, which necessarily would invalidate his subsequent
conviction. As a result, the claim under 42 U.S.C. § 1983 against the officer defendants is barred
under Heck and will be dismissed. 8
b.

Massachusetts Civil Rights Act

Count Three also asserts a claim under the Massachusetts Civil Rights Act against all
defendants. The Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, provides a right
of action to any person whose exercise or enjoyment of rights secured by the federal or state
constitution or laws has been interfered with by “threats, intimidation, or coercion.” See Bally v.
Northeastern Univ., 403 Mass. 713, 717 (1989). To establish a claim under the MCRA, Ramos

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The complaint does not, for example, allege that the officers used excessive force in arresting Ramos.

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It is possible that Ramos’s § 1983 claim is based on the new assertion in the proposed amended complaint
that the officers searched for and seized personal property belonging to him; if so, the claim is not cognizable
because Ramos could have had no objectively reasonable expectation of privacy in the home. See Amezquita v.
Hernandez-Colon, 518 F.2d 8, 10-12 (1st Cir.), cert. denied, 424 U.S. 916 (1976); accord Commonwealth v.
Williams, 453 Mass. 203, 209-10 (2009) (listing cases).

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“must prove that (1) [his] exercise or enjoyment of rights secured by the Constitution or the laws
of the United States or the Commonwealth, (2) have been interfered with, or attempted to be
interfered with, and (3) that the interference or attempted interference was by ‘threats,
intimidation, or coercion.’” Id. A “threat” means the “intentional exertion of pressure to make
another fearful or apprehensive of injury or harm.” Planned Parenthood League of
Massachusetts, Inc. v. Blake, 417 Mass. 467, 474 (1994). “Intimidation” means putting a person
in fear for the purpose of compelling or deterring his or her conduct. Id. “Coercion” means
application of physical or moral force to another to constrain him to do against his will
something he would not otherwise do. Id. On its face, the MCRA contemplates a two-part
sequence: (1) the defendant threatens, intimidates, or coerces the plaintiff, in order to (2) cause
the plaintiff to give up something that the plaintiff has the constitutional right to do.
For the reasons previously stated, defendants have not interfered with Ramos’s “exercise
or enjoyment of rights secured by the Constitution or the laws of the United States or the
Commonwealth.” Therefore, the MCRA claim will be dismissed. Moreover, and in any event,
the complaint has failed to identify any threats, intimidation, or coercion on the part of any
defendant that are sufficient to give rise to a claim under the MCRA. Accordingly, plaintiff’s
motion for leave to amend the complaint to add new defendants to Count Three will be denied,
and his claim under the Massachusetts Civil Rights Act against the officer defendants in the
original complaint will be dismissed.
4.

Proposed Defamation Claim

Proposed Count Five alleges a claim for defamation against Silva in his individual
capacity. To establish a defamation claim under Massachusetts law, a plaintiff must show (1)
that the defendant made a statement concerning the plaintiff to a third party; (2) that the

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statement could damage the plaintiff's reputation in the community; (3) that the defendant was at
fault in making the statement; and (4) that the statement either caused the plaintiff economic loss
or is actionable without proof of economic loss. Shay v. Walters, 702 F.3d 76, 81 (1st Cir. 2012)
(citing Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30 (2003)).
The amended complaint alleges in Count Five that defendant Silva “did publish by
printing and writing ‘realty scams’ as Plaintiff’s occupation and deleted the previous entry that
read ‘Paralegal.’” (Am. Compl. ¶ 28). However, the amended complaint does not include any
further context in which the alleged defamatory statement was made; for example, there is no
indication that the statement was seen by a third party, nor does the proposed amended complaint
allege economic loss associated with the statement. 9 Even if the Court were to grant plaintiff’s
motion for leave to add a claim for defamation against defendant Silva, that claim would not able
to withstand a motion to dismiss. Accordingly, plaintiff’s motion for leave to amend the
complaint to add a claim for defamation will be denied.
5.

Proposed “Summary Process” Claim

Proposed Count Four alleges a claim for “summary process violation[s]” under Mass.
Gen. Laws. ch. 184, § 18 and Mass. Gen. Laws ch. 239, § 1 against proposed new defendants
Charles Roberts Association and FNMA. Chapter 184, § 18 provides:
No person shall attempt to recover possession of land or tenements in any manner other
than through an action brought pursuant to chapter two hundred and thirty-nine or such
other proceedings authorized by law.
9

“Four types of statements are actionable without proof of economic loss: (1) statements that constitute
libel; (2) statements that charge the plaintiff with a crime; (3) statements that allege that the plaintiff has certain
diseases; and (4) statements that may prejudice the plaintiff's profession or business.” Damon v. Moore, 520 F.3d
98, 104 (1st Cir. 2008) (citing Ravnikar, 438 Mass. at 630). Arguably, a written statement that Ramos’s occupation
was “realty scams” might qualify under either the first or second categories listed above. However, if such a
statement was made in the context of the initiation of a judicial proceeding, as seems likely, the statement-maker
would be subject to an absolute privilege. See Correllas v. Viveiros, 410 Mass. 314, 321-22 (1991) (citing Kipp v.
Kueker, 7 Mass. App. Ct. 206, 210 (1979)).

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Mass. Gen. Laws Ann. ch. 184, § 18. Chapter 239 contains the procedures involved in summary
process for possession of land. Although the Court is highly skeptical that Ramos, as a mere
trespasser, was entitled to the statutory procedures under the facts alleged in the complaint, the
issue has not been raised or briefed by the officer defendants.
In determining whether to grant a motion to amend, the Court must “examine the totality
of the circumstances and . . . exercise its informed discretion in constructing a balance of
pertinent considerations.” Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006). The
proposed amended complaint brings Count Four against the proposed new defendants only and
does not include the existing officer defendants. As set forth above, the Court will grant the
officer defendants’ motion to dismiss with respect to Counts One, Two, and Three, and will also
deny leave to amend the complaint to add new defendants to those counts. The Court will also
deny leave to amend the complaint to add Count Five against defendant Silva. As a result, other
than proposed Count Four, no claims or defendants will remain in the case. Thus, the Court sees
no reason to grant plaintiff’s motion for leave to amend simply so he can add an entirely new and
dubious count for a summary process violation against entirely new defendants, to a suit that
would otherwise be dismissed in its entirety. If plaintiff desires to bring such a claim against the
proposed new defendants, he may attempt to do so in a new proceeding. Leave to amend the
complaint to add Count Four will therefore be denied.
IV.

Conclusion
For the foregoing reasons, plaintiff’s motion to remand is DENIED, plaintiff’s motion for

leave to amend the complaint is DENIED, and defendants’ motion to dismiss is GRANTED.

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So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: April 13, 2016

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