Freedman v. Ali et al

Filing 29

Judge George A. O'Toole, Jr: ORDER entered denying 14 Motion to Dismiss for Failure to State a Claim (Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-11151-GAO
JASON FREEDMAN,
Plaintiff,
v.
ASIF ALI, EDWARD BURKE, NICHOLAS MOCHI, and LESTER SULLIVAN,
Defendants.

ORDER
August 2, 2017
O’TOOLE, D.J.
The plaintiff, Jason Freedman, was arrested while picketing a store in Cambridge,
Massachusetts. The defendants, all Cambridge police officers, were involved in Freedman’s arrest
and subsequent prosecution. Freedman’s complaint alleges violation of his civil rights in several
respects under both federal and state statutes. The defendants have moved to partially dismiss
Count IV, a claim under 42 U.S.C. § 1983 for malicious prosecution, to the extent that it may assert
a violation of Freedman’s procedural due process rights under the Fourteenth Amendment.
Although there is no substantive due process right under the Fourteenth Amendment to be
free from malicious prosecution, “the Fourth Amendment . . . provides potentially more fertile
soil” for a § 1983 claim for malicious prosecution. Nieves v. McSweeney, 241 F.3d 46, 54 (1st
Cir. 2001). In particular, a plaintiff may bring a malicious prosecution suit under § 1983 “if he can
establish that: ‘the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process
unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff’s
favor.’” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013) (quoting Evans v.
Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)). For example, police officers may be liable for a

wrongfully indicted defendant’s “unlawful pretrial detention when they have (1) ‘lied to or misled
the prosecutors’; (2) ‘failed to disclose exculpatory evidence’; or (3) ‘unduly pressured the
prosecutor to seek the indictment.’” Id. at 100 (quoting Evans, 703 F.3d at 647–48).
Because a claim for malicious prosecution can be brought under § 1983 if it is based on a
violation of a plaintiff’s Fourth Amendment rights, id. at 101, taking the alleged facts as true, it is
plausible that the state actor defendants’ actions caused a seizure of Freedman within the scope of
the Fourth Amendment (made applicable to the States by the Fourteenth Amendment, Mapp v.
Ohio, 367 U.S. 643, 655 (1961), which may explain the reference in the pleading to the latter).
Accepting as true, as must be done on consideration of a motion to dismiss, Freedman’s allegation
that the basis for the criminal complaint against him was a story fabricated by the defendants, it is
plausible to conclude that they could be liable for an unlawful pretrial detention, and therefore a
seizure covered by the Fourth Amendment, by reason of their alleged misconduct. That plausible
possibility is sufficient to defeat the motion to dismiss at this stage. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (quoting Bell Atl. Co. v. Twombly, 550 U.S. 544, 570).
The defendants’ partial motion to dismiss (dkt. no. 14) is DENIED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

2