Elliott v. Prosniewski et al
Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS granting 13 Motion to Dismiss for Failure to State a Claim (Russo, Noreen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CONRAD PROSNIEWSKI, SALEM
POLICE DEPARTMENT, CITY OF
SALEM, and MAYOR KIMBERLY
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS (Dkt. No. 13)
Jody Elliott (Elliott or “the plaintiff”) has brought a pro
se civil rights lawsuit against the City of Salem, Massachusetts
(“the City”), its mayor, Kimberly Driscoll (“Mayor Driscoll”), the
The gravamen of Elliott’s complaint is that police
officers repeatedly trivialized or ignored her complaints that
certain neighbors were harassing her, and instead tended to credit
the neighbors’ own complaints regarding her.
The defendants move
to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
For the reasons discussed below, I find that the complaint as
drafted fails to state a viable claim.
The motion to dismiss will
therefore be GRANTED.
The complaint, taken as true for the purposes of the motion
to dismiss, arises from an ongoing dispute between the plaintiff
and her then neighbors and fellow trustees of her condominium
Segal and Patzke reportedly made false and misleading
statements about the plaintiff; among other things, they claimed
that she was mentally ill and had a long and well documented
(Compl. ¶¶ 7, 9, 17, 35).
Segal and Patzke also reportedly sent
the plaintiff threatening emails, blocked her driveway, shut off
her electricity, recorded her in her home, and posted on the
building’s front porch biblical quotes highlighting her failings
as a Christian.
(Id. ¶¶ 16-19, 21-23, 25, 32-35).
Segal and Patzke at some point alleged to the SPD that the
plaintiff had painted a swastika and other Nazi-related insignia
in the cellar of the building in order to target Segal, who is
Prosniewski’s direction conducted an investigation but failed to
seriously investigate the plaintiff’s complaints, and credited
Segal and Patzke’s version of events over hers.
At the conclusion
of the investigation the Essex District Attorney’s office brought
criminal charges against the plaintiff.
(Id. ¶¶ 27-28, 36, 38,
40, 45, 55-56, 64-66, 90).
The complaint asserts eight counts.
enforcement by failing to protect the plaintiff when she called
them in July 2014 to complain about Patzke.
Count Two is entitled “Neighbor Dispute” and summarizes an
incident where the plaintiff called the SPD regarding Patzke’s car
blocking her from exiting the driveway.
The plaintiff appears to
allege that a police report summarizing the incident would have
militated against charges being filed against her had it been
Count Three is entitled “Excessive Force” and alleges that an
SPD officer frightened the plaintiff and her daughter when he and
his colleague went to the plaintiff’s unit late one evening and
banged loudly on her front door.
Counts Four and Five are lumped together and are entitled
Prosecution.” They allege that Captain Prosniewski lied to the
They also allege that Captain Prosniewski told
Patzke when the plaintiff would be at the courthouse so he could
intimidate her and put her at risk for arrest or harm.
Enforcement” and alleges that the SPD refused to investigate the
plaintiff’s allegations against Patzke and Segal.
Count Seven is entitled “Failure to Protect” and alleges that
SPD Officer Levesque failed to adequately address the plaintiff’s
complaint following a snowstorm that Patzke was harassing her by
moving his car to block the plaintiff’s car each time she cleared
an area around it.
Count Eight is also entitled “Failure to Protect” and alleges
that SPD Levesque on another occasion failed to adequately address
the plaintiff’s complaint that Patzke had caused damage to the
plaintiff’s washing machine by moving it from one area of the
basement to another.
constitutional violations and are brought pursuant to 42 U.S.C. §
See Hamilton v. Arnold, 135 F. Supp. 2d 99, 102 (D. Mass.
2001) (“Section 1983 provides a federal cause of action to redress
violations of the Constitution or other federal laws
. . .”).
III. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the complaint
must include sufficient factual allegations that, when taken as
true, demonstrate a plausible claim of relief. Bell Atlantic v.
Twombly, 550 U.S. 544, 555-58 (2007).
“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.”
Id. The “plausibility” standard is met where “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 556).
When deciding a motion to dismiss under Rule 12(b)(6), the
“plausibility” standard requires the court: (1) to distinguish
accepted as true, and its conclusory legal allegations which are
afforded no credence, and (2) to determine whether the factual
allegations “are sufficient to support the reasonable inference
that the defendant is liable for the misconduct alleged.” GarciaCatalan v. U.S., 734 F. 3d 100, 103 (1st Cir. 2013).
should be dismissed only if “the pleading shows no set of facts
University, 436 F. Supp. 2d 287, 288 (D. Mass. 2006).
A. Counts 1 and 6 – Selective Enforcement
The plaintiff alleges that she called the SPD on several
occasions to complain of harassment by Segal and Patzke.
plaintiff’s concerns and instead gave preferential treatment to
Segal and Patzke. 1
More specifically, the plaintiff alleges that
SPD Officers Johnson, Verrette, Connolly and Burke, after speaking
with her and then with Segal and Patzke, told her the SPD was
unable to assist her further in resolving her disputes with them.
The plaintiff alleges that the officers favored Segal and Patzke
because Segal, who is a former Assistant District Attorney, had a
plaintiff alleges that the officers’ conduct violates her Eighth
Amendment right to be free from cruel and unusual punishment, and
her Fourteenth Amendment right to equal protection under that
amendment’s Equal Protection Clause.
As a threshold matter, the Eighth Amendment is not implicated
here because its protections apply to prisoners only. See Ingraham
v. Wright, 430 U.S. 651, 671-672, n. 40 (1977); see also Revere v.
In addition to Counts One and Six, the plaintiff advances two other claims
against the SPD, including claims for failure to protect (Counts Seven and
Eight) and excessive force (Count Three). The defendants argue that all of
these claims fail as a matter of law because the SPD is “a municipal department
of the City rather than an independent legal entity that is subject to suit,”
and such claims should properly be brought against the City or the individual
SPD officers responsible for the alleged violations. The defendants argue, and
the Court agrees, that a police department is not an independent legal entity
for purposes of the civil rights based claims the plaintiff brings here. See
e.g., Stratton v. City of Boston, 731 F. Supp. 42, 46 (D. Mass. 1989) (“[T]he
Police Department is not an independent legal entity.”); Henschel v. Worcester
Police Dept., 445 F.2d 624, 624 (1st Cir. 1971) (noting that the plaintiff could
not bring a § 1983 claim against the police department); Winfield v. Perocchi,
No. 14-12219-IT, 2015 WL 4482940, at *3 (D. Mass. July 22, 2015) (noting that
the plaintiff could not bring her claims against the police department
directly). However, as a more efficient alternative to dismissing the claims
only to allow the plaintiff leave to amend her complaint to name the proper
entities, the court will construe the claims brought against the SPD as though
they were alleged against the individual SPD officers and/or, where applicable,
Mass. Gen. Hosp., 463 U.S. 239 (1983); Carapellucci v. Town of
Winchester, 1986 U.S. Dist. LEXIS 17086 (D. Mass. Dec. 1, 1986)
incarcerated pursuant to a criminal conviction.").
To succeed on a claim of selective enforcement based on the
Fourteenth Amendment’s Equal Protection clause, a plaintiff must
show that “(1) [she], compared to others similarly situated, was
selectively treated and (2) that such selective treatment was based
on impermissible considerations such as race, religion, intent to
malicious or bad faith intent to injure a person.”
Rogato, 60 F.3d 906, 909-10 (1st Cir. 1995)(quoting Yerardi’s Moody
St. Rest. & Lounge, Inc. v. Bd. of Selectmen, 878 F.2d 16, 21 (1st
relate specific instances where persons situated similarly in all
relevant aspects were treated differently, instances which have
the capacity to demonstrate that [the plaintiff was] singled
. . .
out for unlawful oppression.” Rubinovitz, 60 F.3d at 909-
10 (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19
extremely high degree of similarity between themselves and the
persons to whom they compare themselves.”
Snyder v. Gaudet, 756
F.3d 30, 35 (1st Cir. 2014)(citing Cordi-Allen v. Conlon, 494 F.3d
245, 251 (1st Cir. 2007)).
“[T]he First Circuit considers the
similarly situated requirement to be a very significant burden.”
Wentworth Precious Metals, LLC v. City of Everett, No. 11-10909DPW, 2013 WL 441094, at *8 (D. Mass. Feb. 4, 2013) (quoting CordiAllen, 494 F.3d at 250-51).
The plaintiff does not meet that burden here.
complaint as articulated fails to allege that an individual or
groups of individuals similarly situated to the plaintiff were
somehow treated differently by the SPD in general, and by Officers
Johnson, Verrette, Connolly and Burke in particular. Rather, the
thrust of the plaintiff’s complaint appears to be that SPD officers
tended to dismiss her concerns.
In the absence of showing that
See e.g., Smith v. City of Boston, No. 03-10062-DPW,
2004 WL 1572626, at *5 (D. Mass. July 13, 2004) (landlord’s failure
to identity other landlords who were treated differently by the
city for code violations was fatal to his selective enforcement
claim); but compare Wright v. Town of Southbridge, No. 07-40305FDS, 2009 WL 415506, at *6 (D. Mass. Jan. 15, 2009) (plaintiffs’
allegations that “we were the only ones to receive these [2-hour
parking tickets]” and that a certain law “was enforced only against
[the plaintiffs],” while “threadbare,” were sufficient to state a
plausible selective enforcement claim).
Even assuming that the complaint could be read to assert that
plaintiff who received disparate, more favorable treatment, such
that the first prong were satisfied, the complaint still fails to
intended with malice or bad faith to injure the plaintiff.
sure, the plaintiff does allege that the SPD tended to favor Segal
because she had a longstanding relationship with them, but that is
not the same as alleging facts that would show that the SPD or its
officers harbored a malicious or bad faith intent to injure the
In that regard, it is also true that the plaintiff
alleges that the officers maliciously credited Segal’s version of
events “with the goal of destroying [the] plaintiff’s life,” but
conclusory statements are insufficient on their own to meet the
Rather, the plaintiff would need to allege
facts showing that Officers Johnson, Verrette, Connolly and Burke
either knew that Segal’s version of events were false but credited
them anyway, or knew that the plaintiff’s complaints had merit but
discredited them nonetheless, because they harbored an intent to
injure the plaintiff.
Walsh v. Town of Lakeville, 431 F. Supp.
2d 134, 146 (D. Mass. 2006) (“Even if some of the defendants’
actions lacked a rational basis and resulted in [the plaintiff]
being treated differently from others similarly situated, she has
orchestrated and spiteful effort to get her.”); Smith, 2004 WL
1572626 at *5 (holding that “pre-existing animosity” between the
plaintiff and the defendants was not sufficient to support a
finding that defendants harbored a malicious intent to injure the
Given the plaintiff’s response when asked at the
hearing on the motion that she simply did not know why the SPD
Officers would treat her differently, she cannot meet her burden.
For this reason, moreover, allowing the plaintiff leave to amend
the complaint to assert such facts would be futile.
Counts 1 and
6 therefore fail to state a viable claim for selective enforcement
and will be dismissed.
B. Counts 1, 7 and 8 – Failure to Protect
The plaintiff alleges that she placed several calls to the
On several of these occasions, SPD Officers Levesque and
Verrette reportedly responded and trivialized the nature of the
plaintiff’s dispute with her neighbors as a “civil complaint”
falling outside the SPD’s jurisdiction, and allegedly refused to
further protect the plaintiff from Segal and Patzke’s campaign of
The plaintiff contends that the officers’ failure to
The Fourteenth Amendment’s Due Process Clause may be violated
where (1) the government affirmatively acts to increase the threat
to an individual of third-party private harm, or prevents the
government’s actions are so “egregious” and “outrageous” as to
shock the conscious of the court.
See Irish v. Maine, 849 F.3d
521, 526 (1st Cir. 2017); Frances-Colon v. Ramirez, 107 F.3d 62,
64 (1st Cir. 1997).
But where the claim is not that the government
affirmatively increased the risk of harm to the plaintiff but,
rather, simply failed to protect the individual from third-party
private violence (even in the face of a known danger) the conduct
simply does not constitute a violation of the Due Process Clause.
DeShaney v. Winnebago County Dept. of Social Services, 489 U.S.
189, 197 (1989); Melendez-Garcia v. Sanchez, 629 F.3d 25, 36 (1st
In the present case, there is no allegation that any SPD
officer affirmatively acted to increase a threat of violence to
the plaintiff. Indeed, there is no serious allegation that the
plaintiff was ever at risk of harm by Segal or Patzke.
reportedly biased treatment fortuitously fostered a culture where
plaintiff as alleged, the facts would still not be so egregious or
outrageous as to shock the conscience of the court.
Morgan v. Town of Lexington, 138 F. Supp. 3d 82, 90 (D. Mass. 2015)
(“Although the Defendants’ lack of responsiveness and concern to
[the plaintiff’s] treatment by fellow students may have been
negligent, [e]ven where the government has created or markedly
increased a risk of harm, no violation of substantive due process
outrageous.”); Smith v. Guilford Bd. Of Education, 226 Fed. Appx.
58, 62 (2nd Cir. 2007) (“Defendant’s failure to respond to the
harassing and bullying to which [the plaintiff] was subjected . .
. while highly unfortunate, does not rise to the level of egregious
conduct . . . so brutal and offensive to human dignity as to shock
In short, Counts 1, 7 and 8 fail to state a valid due process
claim for a failure to protect. 2
C. Count 2 - Neighbor Dispute
Count 2 is based on an incident that reportedly took place on
September 7, 2014. The plaintiff contends that Patzke was blocking
the plaintiff’s access to her car and she called the SPD to request
responded to the scene and ordered Patzke to move his vehicle.
the course of these events, however, Patzke apparently made a
deprecating comment to the plaintiff and her daughter out of
Officer Scaldone’s earshot.
The plaintiff contends that Mayor Driscoll also failed to respond timely to
her written requests for assistance in resolving her issues with the SPD. To
the extent the plaintiff asserts Counts 1, 7 and 8 against Mayor Driscoll for
her failure to act, the claims fail for the reasons discussed above.
Accepting these allegations as true, it remains unclear what
the thrust of the plaintiff’s claim is.
For its part, the court
discerns no illegality or improper conduct on Officer’s Scaldone’s
part in resolving the dispute the way he did.
To the extent the
enforcement or a failure to protect, the claim fails for the
reasons stated above.
Count 2 thus fails to state a claim.
D. Count 3 – Excessive Force
Count 3 arises from an incident that reportedly took place on
October 20, 2014.
Officer Verrette and another unidentified
officer apparently “forcefully banged” on the plaintiff’s door to
plaintiff had painted a swastika and other Nazi-related insignia
on a building door.
The plaintiff alleges that Officer Verrette’s
“loud banging” on her door frightened her and her daughter and
constitutes excessive force.
Claims that a police officer used excessive force in an
analyzed under the Fourteenth Amendment’s substantive due process
standard. Cummings v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001).
The due process protection afforded by the Fourteenth Amendment
protects individuals from the “arbitrary action of government,”
but only conduct that “shocks the conscience” constitutes an
arbitrary abuse of power so as to give rise to a violation of an
Massachusetts, 836 F. Supp. 2d 17, 28 (D. Mass. 2011).
In the present case, the plaintiff has not cited any authority
suggesting that an officer’s loud knocking on a person’s door
without more could be so egregious and outrageous as to shock one’s
conscience and amount to a due process violation.
This court has
also not been able to find any authority lending support to the
Even accepting that every case is necessarily
fact-specific and unique to the particular circumstances in which
the conduct occurred, the absence of any supporting precedent is
To this court, the facts here would at worst suggest
(but not necessarily prove) that Officer Verrette knocked on the
plaintiff’s door loudly because he wanted to frighten her.
if such facts could make out a viable claim for infliction of
emotional distress, they still would not be so egregious as to
shock the conscious and amount to a due process violation.
3 therefore fails to state a claim and will be dismissed.
Baker v. McCollan, 443 U.S. 137, 146 (1979) (primary inquiry in
addressing a Fourteenth Amendment excessive force claim is whether
state official’s conduct was so egregious or intolerable as to
shock the conscience of the court and constitute a constitutional
violation as opposed to a mere violation of state tort law).
E. Counts 4 and 5 - Malicious Prosecution
Counts 4 and 5 allege that Captain Prosniewski, who was
plaintiff had painted a swastika and other Nazi-related insignia
on a building door, incorrectly told the plaintiff’s attorney that
she would receive a court summons in the following weeks when she
in fact received it the following day, which in turn (somehow)
plaintiff also alleges that Captain Prosniewski let Patzke know
when the plaintiff was due to appear in court so that he could
attend and further harass and intimidate her.
contends that Captain Prosniewski’s conduct amounts to malicious
To prevail on a claim of malicious prosecution, “a plaintiff
commenced the original action without probable cause and with
malice, and that the original action terminated in [her] favor.”
Chervin v. Travelers Ins. Co., 448 Mass. 95, 103 (2006).
brush, an individual may be said to have instituted criminal
proceedings against another if he caused those proceedings to be
Limone v. U.S., 579 F.3d 79, 89 (1st Cir. 2009).
Generally, this is found where the defendant “induces another
person to lodge formal criminal charges,” and “exercises a peculiar
degree of control over the charging official or adamantly presses
that official to bring a criminal complaint.”
Malice is found
where there was no probable cause for the prosecution and the
defendant acted with an improper motive or was motivated by malice.
Beecy v. Pucciarelli, 387 Mass. 589, 593-94 (1982).
Prosniewski acted with malice when he reportedly incorrectly told
the plaintiff’s attorney when her summons would be issued, or when
Even if there were, the claim still fails because the
plaintiff does not allege that Captain Prosniewski initiated the
criminal charges against her, or induced the entity that did – the
Essex District Attorney’s Office - to initiate charges, or that he
exercised a degree of control over that office.
Rather, the crux
purposely misstated when the summons would be issued, which caused
Patzke to harass her all the more.
Whatever cause of action such
facts might support, a claim for malicious prosecution is not one
Counts 4 and 5 thus fail to state a claim and therefore
will be dismissed.
F. Claims Against the City of Salem
Finally, even assuming the plaintiff could show one or more
SPD officers violated her constitutional rights as alleged in the
foregoing claims, the claims would all still fail against the City.
In order to hold a municipality liable for the constitutional
violations of one of its employees, the plaintiff must show that
a municipal employee violated her constitutional rights and that
the municipality was responsible for the violation.
Young v. City
of Providence ex rel. Napolitano, 404 F.3d 4, 26 (1st Cir. 2005).
To establish that a municipality is responsible for a violation,
a plaintiff must show that the municipal employee acted pursuant
municipal policy or custom actually caused the plaintiff's injury,
and that the municipality possessed the requisite level of fault,
which is generally labeled in these sorts of cases as “deliberate
Id. (internal citations omitted).
See also Monell
v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 694
violations of an employee, not on a respondeat superior theory,
but because official policy or custom caused the constitutional
deprivation); Bordanaro v. McLeod, 871 F.2d 1151, 1155 (1st Cir.
Put more simply, in order to hold the City liable for the
SPD’s conduct, the plaintiff would need to show (1) that the City
had in place a “policy or custom” that allowed the SPD to act
affirmatively exacerbate the risk of harm to an individual, or to
use excessive force or induce malicious prosecutions, (2) that the
policy or custom actually led to the constitutional violation that
occurred, and (3) that the City was deliberately indifferent to
the risk created by its policy or custom.
sufficient facts to show that any SPD officer violated any of the
plaintiff’s constitutional rights, and any claim against the city
would fail for that reason alone.
But even assuming the plaintiff
could show a constitutional violation, the complaint fails to plead
any facts suggesting the City had a policy or custom in place that
was responsible for any constitutional violation the plaintiff
On the contrary, the complaint is devoid of any facts
that reasonably could be construed as alleging a municipal custom
It follows that the complaint fails to state a valid
claim against the City.
For the reasons stated above, the Defendants’ Motion to
Dismiss is GRANTED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
September 14, 2017
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