Afrasiabi v. Commonwealth of Massachusetts et al

Filing 39

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, defendants motions to dismiss (Docket No. 21 and 29) are, with respect to the 42 U.S.C. § 1983 claims, ALLOWED. Plaintiffs state- law claims are DISMISSED without prejudice. Plaintiff may re-file those state claims in a court of the Commonwealth of Massachusetts. Plaintiffs motion for the disclosure of names (Docket No. 32) is DENIED as moot. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

KAVEH L. AFRASIABI,
Plaintiff,
v.
COMMONWEALTH OF MASSACHUSETTS,
ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.
16-11791-NMG

MEMORANDUM & ORDER

GORTON, J.
This case arises out of the pretrial detention and
subsequent release of plaintiff Dr. Kaveh Afrasiabi (“Dr.
Afrasiabi” or “plaintiff”) that occurred in connection with a
Massachusetts criminal case.

Dr. Afrasiabi claims that

defendants the Commonwealth of Massachusetts (“the
Commonwealth”), Assistant District Attorney Raquel Frisardi
(“ADA Frisardi”), Attorney Ardenoke a/k/a Aderonke Lipede
(“Attorney Lipede”) and Sami Herbawi 1) falsely imprisoned him
in violation of his civil rights, 2) intentionally inflicted
emotional distress upon him, 3) negligently inflicted emotional

-1-

distress upon him and 4) conspired to falsely accuse him of
criminal conduct.1
Motions to dismiss filed by 1) the Commonwealth and ADA
Frisardi and 2) Attorney Lipede and Mr. Herbawi as well as a
motion by plaintiff for the disclosure of the names of two
anonymous defendants from the Middlesex Sheriff’s department are
pending before the Court.

For the reasons that follow, the

motions to dismiss will, with respect to the 42 U.S.C. § 1983
claims, be allowed and, with respect to the state law claims, be
allowed without prejudice to plaintiff re-filing those claims in
state court.
I.

The motion for disclosure will be denied as moot.

Background
Dr. Kaveh Afrasiabi, Ph.D., is a former political science

professor at Boston University and Bentley University.

This

case involves claims that stem from the arrest and subsequent
incarceration of Dr. Afrasiabi in connection with a criminal
complaint filed against him in the Cambridge District Court.
A. Criminal Complaint Alleging Harassment of Mr. Herbawi
There is a criminal complaint pending against Dr. Afrasiabi
in the Cambridge District Court that alleges that he harassed
Mr. Herbawi in violation of M.G.L. c. 265, § 43(a).

Dr.

Afrasiabi and Mr. Herbawi have a contentious history that begins

1

The complaint also names Governor Charlie Baker, Anonymous Officer,
Middlesex and Sheriff’s Office as defendants but those individuals have not
been served.

-2-

with a dispute in August or September of 2014.

At that time,

Dr. Afrasiabi planned an event featuring a lecture by Professor
Noam Chomsky of the Massachusetts Institute of Technology at Mr.
Herbawi’s coffee house.

Dr. Afrasiabi asserts that, although he

spent a significant amount of time and money organizing the
Chomsky event, Mr. Herbawi reneged on their related agreement
and verbally and physically assaulted Dr. Afrasiabi.
Dr. Afrasiabi submits that he and Mr. Herbawi resolved
their differences in October, 2014.

At Mr. Herbawi’s request,

Dr. Afrasiabi purportedly gave him two notarized letters
releasing him of all liabilities due to the breached agreement.
According to Dr. Afrasiabi, Mr. Herbawi then appeared at a
probable cause hearing in Cambridge District Court in March,
2015 and denied that he received the notarized letters and
claimed that Dr. Afrasiabi had repeatedly contacted him.
B. Pretrial Release and Revocation of Release in
Cambridge District Court
In August, 2015, plaintiff was arraigned on the criminal
charges alleging that he had harassed Mr. Herbawi and was
released pending trial on condition that he avoid any direct or
indirect contact with the purported victim.

The Commonwealth

sought a warrant for Dr. Afrasiabi’s arrest in September, 2015
because he allegedly violated the no indirect contact condition
of his release.

In October, 2015, the Cambridge District Court

-3-

convened a hearing and amended the conditions of release to
include a provision that barred Dr. Afrasiabi from making any
“public comment relative to this complaint”.
Later that month, Dr. Afrasiabi sent an email to the
following recipients: Noam Chomsky, William Keefe, Thomas K.
Birch, Sean McKendry, [e-mail] and eight other unnamed
individuals.

The email made reference to the Cambridge police

department, the district court and the district attorney’s
office.

Among other things, Dr. Afrasiabi stated that

my civil rights abusers in Cambridge Police and Cambridge
District Court continue harboring the illusion of quick
injustice.
The email does not specifically mention Mr. Herbawi.
Shortly after the email was sent, the Commonwealth
requested that Dr. Afrasiabi’s release be revoked, alleging that
he had publicly commented on the complaint.

The Cambridge

District Court convened a hearing, concluded that Dr. Afrasiabi
had violated the no public comment condition and ordered him
detained without bail for 90 days in accordance with M.G.L. c.
276, § 58B.

At the initial hearing before the Cambridge

District Court, Dr. Afrasiabi did not argue that the “no public
comment” condition violated his First Amendment Rights.
According to the complaint, during his 50-day pretrial
detention at the Billerica House of Correction, Dr. Afrasiabi
“was subjected to physical torture twice”.
-4-

The alleged torture

occurred when he was, on two occasions, “transported in chains
in a small metallic cubicle in the back of a van”.

Dr.

Afrasiabi alleges that he did not have a seatbelt during the
transportation, was “deprived of adequate air to breathe for
nearly 4 hours” and was in physical pain.
C. Appeal of Pretrial Detention
Dr. Afrasiabi appealed the revocation of his supervised
released under M.G.L. c. 211, § 3 on the grounds that the “no
public comment” condition violated his First Amendment Rights.
The Massachusetts Supreme Judicial Court (“the SJC”) denied his
first petition without prejudice so he could present his First
Amendment argument to the Cambridge District Court.

That Court

disagreed with Dr. Afrasiabi’s contention that the “no public
comment” was a gag order in violation of the First Amendment.
Dr. Afrasiabi then sought from the SJC reconsideration of
his M.G.L. c. 211, § 3 petition.

A single justice of the SJC,

the Honorable Francis Spina, reconsidered the petition and held
that
The ‘no public comment condition’ is so broad that on its
face it includes comment that would not amount to direct or
indirect contact with the alleged victim, but would include
comment that is protected by the First Amendment to the
Constitution and art. 16 of the Declaration of Rights. As
such, the ‘no public comment’ condition is a prior
restraint on protected speech and must be stricken.
Commonwealth v. Afrasiabi, No. SJ-2015-0483 (Mass. entered Dec.
25, 2015) (internal citation omitted).
-5-

On the other hand, Justice Spina observed that the “no
contact” condition was permissible and concluded that it was
unclear from the trial court’s order whether it considered the
email to have been indirect contact with the purported victim.
Therefore, Justice Spina allowed Dr. Afrasiabi’s petition and
vacated the orders revoking his pretrial release and detaining
him but also remanded the case so that the trial court could
determine whether Dr. Afrasiabi violated the “no contact”
condition.
D. Procedural History of this Case
Dr. Afrasiabi filed a lawsuit pro se in this Court in
September, 2016, alleging that the Commonwealth, ADA Frisardi
and Attorney Lipede falsely imprisoned him in violation of his
civil rights and both intentionally and negligently inflicted
emotional distress upon him.

Dr. Afrasiabi also alleged that

Attorney Lipede and Mr. Herbawi conspired to accuse him falsely
of criminal harassment.

Dr. Afrasiabi seeks $25 million in

damages.
In October, 2016, defendants Attorney Lipede and Mr.
Herbawi moved to dismiss the claims against them and in
December, 2016, the Commonwealth and ADA Frisardi moved to
dismiss the claims against them.

Plaintiff timely opposed both

motions and moved for the disclosure of the names of two
anonymous defendants from the Middlesex County Sheriff’s Office
-6-

in order to serve those defendants.

No party has opposed

plaintiff’s motion but the Commonwealth and ADA Frisardi request
that, to the extent the motion is directed toward them, the
Court delay deciding it until after it renders a decision on
their motion to dismiss.

This memorandum and order addresses

all three pending motions.
II.

Motions to Dismiss
A. Legal Standard
Pursuant to Fed. R. Civ. P. 12(b), a defendant may move to

dismiss a complaint for want of subject matter jurisdiction or
for failure to state a claim upon which relief can be granted.
Rule 12(b)(6) requires that a complaint contain “sufficient
factual matter” to state a claim for relief that is actionable
as a matter of law and “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially

plausible if, after accepting as true all non-conclusory factual
allegations, the court can draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir.
2011).
A court may not disregard properly pled factual allegations
even if actual proof of those facts is improbable. Id.

Rather,

the relevant inquiry focuses on the reasonableness of the
-7-

inference of liability that the plaintiff is asking the court to
draw. Id. at 13.

When rendering that determination, a court may

not look beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
If a defendant moves to dismiss on the grounds that federal
subject matter jurisdiction is lacking under Fed. R. Civ. P.
12(b)(1) and the plaintiff has failed to state a claim under
Fed. R. Civ. P. 12(b)(6), a court should first evaluate whether
it has subject matter jurisdiction. Deniz v. Municipality of
Guaynabo, 285 F.3d 142, 150 (1st Cir. 2002).

If subject matter

jurisdiction is absent, “assessment of the merits becomes a
matter of purely academic interest.” Id.
B. Application
Plaintiff’s complaint includes only one federal claim: he
alleges that defendants the Commonwealth, ADA Frisardi and
Attorney Lipede violated 42 U.S.C. § 1983 (“§ 1983”) by falsely
imprisoning him.

This Court agrees with the Commonwealth and

ADA Frisardi that the § 1983 claim against them must be
dismissed on immunity grounds.

It also agrees with Attorney

Lipede and Mr. Herbawi that no viable federal claim is raised
against them.

-8-

Because plaintiff’s federal claims will be dismissed before
discovery commences, this Court declines to exercise
jurisdiction over plaintiff’s state law claims and will dismiss
them without prejudice to plaintiff filing suit in state court.
1. The Commonwealth and ADA Frisardi are Immune
from a § 1983 Claim
The contention of the Commonwealth and ADA Frisardi that
the § 1983 claim against them should be dismissed because they
are immune from suit is well taken.

First, with respect to the

Commonwealth, as recognized by the Eleventh Amendment to the
United States Constitution, “the States’ immunity from suit is a
fundamental aspect of [their] sovereignty.” Alden v. Maine, 527
U.S. 706, 713 (1999).

Therefore,

if a § 1983 action alleging a constitutional claim is
brought directly against a State, the Eleventh Amendment
bars a federal court from granting any relief on that
claim.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120
(1984).

Accordingly, plaintiff’s federal civil rights claim

against the Commonwealth will be dismissed.
Second, regardless of whether plaintiff is suing ADA
Frisardi in her official or individual capacity, she is immune
from a § 1983 claim.

In a suit for damages, “neither a State

nor its officials acting in their official capacities are
‘persons’ under § 1983.” Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989).

Accordingly, the 1983 claim must be
-9-

dismissed to the extent it is brought against ADA Frisardi in
her official capacity as a prosecutor.
Furthermore, a § 1983 claim against ADA Frisardi in her
individual capacity must also be dismissed because she was
engaged in prosecutorial functions during the alleged federal
civil rights violation.

It is well established that

in initiating a prosecution and in presenting the State's
case, the prosecutor is immune from a civil suit for
damages under § 1983.
Imbler v. Pachtman, 424 U.S. 409, 431 (1976).

In determining

whether a prosecutor’s conduct is related to her advocacy for
the state, courts apply a functional test by examining whether
the prosecutor’s “activities were intimately associated with the
judicial phase of the criminal process”. Id. at 430.

For

instance, a prosecutor has absolute immunity with respect to
preparing for a judicial proceeding and presenting evidence in
Court. Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009).
Conversely, a prosecutor is not entitled to such immunity for
actions that occur outside of her prosecutorial function, such
as speaking with the media, advising police officers during an
investigation or acting a witness. Id.
Plaintiff’s claims against ADA Frisardi relate to conduct
that falls within her prosecutorial function.
that

-10-

Plaintiff alleges

Defendants Lipede and Herbawi acted in concert with the
(oppressive and constitutionally-blind) Defendant Frisardi
to deprive Afrasiabi of his liberty, by concocting false
accusations against Afrasiabi.
He further claims that ADA Frisardi “adopted at face value” the
false accusations of threat and harassment by Attorney Lipede
and Mr. Herbawi and “relied on the unsubstantiated and false
claims . . . to bring an additional charge against Afrasiabi.”
Those claims are, in essence, an allegation that ADA
Frisardi erred by relying on the supposedly false allegations of
Attorney Lipede and Mr. Herbawi in her role as an advocate for
the Commonwealth.

Plaintiff specifically objects to the charges

ADA Frisardi filed against him and to her conduct at pretrial
hearings.

Such activities are “intimately associated with the

judicial phase of the criminal process.” Imbler, 424 U.S. at
430.

Therefore, because plaintiff’s § 1983 claim involves

alleged prosecutorial errors in the course of the criminal
proceedings against him, ADA Frisardi is entitled to absolute
immunity and plaintiff’s § 1983 claim against her will be
dismissed. See Van de Kamp v. Goldstein, 555 U.S. 335, 344
(2009).
Because this Court concludes that the § 1983 claim, which
is the only federal claim against the Commonwealth and ADA
Frisardi, must be dismissed, it declines to address their

-11-

arguments in favor of dismissing the state law claims against
them.
2. Plaintiff Does Not Allege that Attorney Lipede
and Mr. Herbawi Acted Under Color of State Law
Attorney Lipede and Mr. Herbawi submit that this Court does
not have subject matter jurisdiction over them because no
federal question applies to them and there is no diversity of
citizenship.

Plaintiff responds that he has

raised the issue of civil conspiracy/civil rights violation
against [them] . . . which, in turn, raises the federal
question under Section 1983.
This Court agrees with defendants that it has no federal subject
matter jurisdiction over Attorney Lipede and Mr. Herbawi.

There

is no plausible allegation that those defendants acted under
color of state law as is required for a § 1983 claim. See 42
U.S.C. § 1983; Hafer v. Melo, 502 U.S. 21, 27–28 (1991).
Consequently, to the extent that plaintiff claims Attorney
Lipede and Mr. Herbawi violated § 1983, that claim will be
dismissed.
Because the federal claim against Attorney Lipede and Mr.
Herbawi must be dismissed, this Court also declines to address
the grounds raised by those defendants for dismissing the state
law claims against them.

-12-

3. Dismissal of State Claims without Prejudice to
Plaintiff Re-Filing Those Claims in State Court
If all federal claims in a case are dismissed, a federal
court may, in its discretion, either continue to exercise
supplemental jurisdiction over the pendant state claims or
dismiss them without prejudice to plaintiff filing suit in state
court. Grispino v. New England Mut. Life Ins. Co., 358 F.3d 16,
19 (1st Cir. 2004).

Plaintiff’s remaining claims allege

violations of the laws of the Commonwealth of Massachusetts:
1) civil rights violations under Massachusetts statutes, 2)
negligent infliction of emotional distress, 3) intentional
infliction of emotional distress and 4) civil conspiracy.

Thus,

this Court will exercise its discretion to dismiss the remaining
state-law claims against the Commonwealth of Massachusetts, ADA
Frisardi, Attorney Lipede and Mr. Herbawi without prejudice.
Dismissal without prejudice of the remaining state-law
claims is appropriate because this suit is still in its
preliminary stages and no discovery has occurred.
As a general principle, the unfavorable disposition of a
plaintiff's federal claims at the early stages of a suit,
well before the commencement of trial, will trigger the
dismissal without prejudice of any supplemental state-law
claims.
Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.
1995).

Moreover, based upon his many filings, this Court is

confident that the pro se plaintiff has the ability to re-file

-13-

his state claims in a court of the Commonwealth of Massachusetts
if he so chooses. See Newman v. Burgin, 930 F.2d 955, 964 (1st
Cir. 1991).

Accordingly, the state claims will be dismissed

without prejudice to plaintiff re-filing them in state court.
III.

Motion for the Disclosure of Names
Plaintiff moves to disclose the names of two anonymous

defendants who are apparently employed by the Middlesex County
Sheriff’s Department.

Because no federal claims remain in this

case and this Court declines to exercise jurisdiction over the
state-law claims, that motion will be denied as moot.
ORDER
In accordance with the foregoing, defendants’ motions to
dismiss (Docket No. 21 and 29) are, with respect to the 42
U.S.C. § 1983 claims, ALLOWED.
DISMISSED without prejudice.

Plaintiff’s state-law claims are
Plaintiff may re-file those state

claims in a court of the Commonwealth of Massachusetts.
Plaintiff’s motion for the disclosure of names (Docket No. 32)
is DENIED as moot.

So ordered.

/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated August 8, 2017

-14-