Lucien-Calixte v. David et al

Filing 56

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, defendants motion to dismiss (Docket No. 38) is,a. with respect to the claims against the Town and the claim against Officer David for false arrest in Coun t I, ALLOWED, but with respect to the claim against Officer David for malicious prosecution in Count I, DENIED;b. with respect to Count II, ALLOWED;c. with respect the claim against the Town in Count III, ALLOWED, but with respect to the claim against Officer David in Count III, DENIED;d. with respect to Count IV, DENIED.So ordered. (Vieira, Leonardo)

Case 1:17-cv-11312-NMG Document 56 Filed 09/16/19 Page 1 of 19

United States District Court
District of Massachusetts
Sandra Lucien-Calixte,
Plaintiff,
v.
Neal David and Town of
Stoughton,
Defendants.

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Civil Action No.
17-11312-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves claims by Sandra Lucien-Calixte
(“plaintiff” or “Lucien-Calixte”) that defendant Police Officer
Neal David (“Officer David”) and defendant Town of Stoughton
(“the Town”) (collectively, “defendants”) wrongfully caused her
arrest and prosecution.
This Court previously allowed defendants’ Motion for
Judgment on the Pleadings without prejudice and allowed
plaintiff leave to amend her complaint (Docket Entry No. 30).
Plaintiff filed her First Amended Complaint on August 22, 2018
(Docket Entry No. 33).
In her First Amended Complaint, plaintiff asserts
violations pursuant to 42 U.S.C. § 1983 and M.G.L. c. 12 § 11I,
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as well as a common law claim of malicious prosecution.

Pending

before the court is defendants’ Motion to Dismiss.
I.

Background
Plaintiff avers that she lived with and provided “round the

clock care” for her aunt, Marie Belfort-Bois (“Belfort-Bois”).
In January, 2013, Belfort-Bois suffered a stroke and was
admitted to Good Samaritan Hospital (“the Hospital”).

While at

the Hospital, where she was fed intravenously, Belfort-Bois
suffered from several medical conditions, including bed sores
and low body temperature.

In March, 2013, Belfort-Bois was

placed in hospice care, but she survived and was returned to
plaintiff’s care in June, 2013.

In July, 2013, Carmel

Duversonne (“Ms. Duversonne”), a Home Health aide, began
periodically visiting Belfort-Bois to assist plaintiff with her
care.
Lucien-Calixte, a registered nurse and trained pulmonary
therapist, handled the majority of Belfort-Bois’ care after
June, 2013.

Belfort-Bois was housed in a makeshift hospital

room set up in the basement of plaintiff’s home.
On February 16, 2014, plaintiff summoned emergency medical
help for Belfort-Bois.

A first responder found Belfort-Bois

dehydrated and with low oxygen saturation.
to the Hospital.

She was readmitted

After triaging and tending to Belfort-Bois,
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Nurse Perdigao called the Stoughton Police Department to report
what she believed to be “troubling” health concerns.

Nurse

Perdigao reported that Belfort-Bois was dehydrated, had serious
bed sores, low body temperature, a soiled diaper and dirty
catheter and feeding tubes.

Nurse Perdigao also submitted a

written Elder Abuse Mandated Reporter Form.
Officer David responded to the call and began a police
report that ultimately served as the initial charging document.
Plaintiff contends that that report attributes the following
statements to Ms. Duversonne which Ms. Duversonne never made:
1) that Belfort-Bois was receiving below average care, 2) that
the basement in which Belfort-Bois slept was “very cold,” 3)
that Belfort-Bois was sleeping in an unfinished basement and
4) that Ms. Duversonne complained about Belfort-Bois’ condition
to her supervisor and asked to be taken off of her case.
Plaintiff alleges that Ms. Duversonne’s grand jury testimony
directly contradicts those statements.
On February 21, 2014, Officer David applied for charges
against Lucien-Calixte for elder abuse and neglect based on his
police report.

That same day, a magistrate issued a warrant and

Lucien-Calixte was arrested.
On March 4, 2014, Officer David amended his report to
include an additional interview with Dr. Kesselman, Belfort- 3 -

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Bois’ treating physician.

In his amended report, Officer David

attributed the following statement to Dr. Kesselman:
I asked Dr. Kesselman in his professional opinion if
[Belfort-Bois’] case was a case of neglect? Dr. Kesselman
stated [Belfort-Bois’] situation was definitely a case of
neglect.
Plaintiff contends that Dr. Kesselman never expressed such an
opinion but instead suggested Belfort-Bois’ conditions were due
to natural causes.
Plaintiff also alleges that Officer David concealed
Belfort-Bois’ medical records, which established that the health
problems that concerned medical staff at the Hospital began
before plaintiff was charged with Belfort-Bois’ care.
A grand jury indicted Lucien-Calixte in June, 2014, and she
was charged and arraigned in Superior Court the following month.
After a trial in 2017, Lucien-Calixte was acquitted of all
criminal charges.
Plaintiff seeks damages for her legal fees, emotional
distress and loss of income as a result of her besmirched
reputation as a nurse.

She also seeks punitive damages and

requests that this Court enjoin Officer David from filing false
reports and order him to submit to further police training.
Plaintiff’s First Amended Complaint specifically alleges
that 1) defendants deprived her of clearly established and well
settled constitutional rights in violation of 42 U.S.C. § 1983,
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2) the Town maintained improper policies and customs for its law
enforcement officers in violation of 42 U.S.C. § 1983,
3) defendants violated the Massachusetts Civil Rights Act,
M.G.L. c. 12 § 11I and 4) Officer David maliciously prosecuted
plaintiff.
II.

Motion to Dismiss
A.

Standard of Review

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In considering the merits of

a motion to dismiss, the Court may only look to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 228
F.3d 1127 (1st Cir. 2000).
Furthermore, the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199
F.3d 68, 69 (1st Cir. 2000).

If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the
complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.
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Although a court must accept as true all the factual
allegations in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Threadbare recitals of legal elements which are supported by
mere conclusory statements do not suffice to state a cause of
action. Id.

Accordingly, a complaint does not state a claim of

relief where the well-plead facts fail to warrant an inference
of any more than the mere possibility of misconduct. Id. at
1950.
B. Count I: Violation of 42 U.S.C. § 1983
In Count I, Lucien-Calixte alleges that both the Town and
Officer David violated her Fourth and Fourteenth Amendment
rights by falsely arresting and maliciously prosecuting her
based on false statements and concealed evidence.
With respect to the Town, municipal liability under § 1983
is limited to claims that a government policy or custom was the
moving force of a constitutional violation. Monell v. Dep’t of
Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978).

Plaintiff

properly makes such a claim against the Town in Count II, but in
Count I bases her claim against the Town on vicarious liability
which is unavailing.

Consequently, defendants’ motion to

dismiss Count I, with respect to the Town, will be allowed.

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With respect to Officer David, plaintiff alleges violations
of § 1983 for false arrest and malicious prosecution.
i.

False Arrest

Officer David submits that plaintiff’s false arrest claim
is untimely.

The parties agree that the statute of limitations

for plaintiff’s § 1983 claim of false arrest is three years but
disagree on the accrual date.

Officer David asserts that the

three-year period accrues from February 21, 2014, the date of
plaintiff’s arrest.

Plaintiff argues the accrual date is July

18, 2014, the date of her arraignment.
The “accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007).

Under federal law, a

§ 1983 claim accrues “at the moment the plaintiff knows or has
reason to know, of the injury that is the basis for the claim.”
Nieves v. McSweeney, 241 F.3d 46, 52 (1st Cir. 2001).

For false

arrest claims, the accrual date is generally the date of the
arrest. Calero-Colo v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir.
1995).

Plaintiff has provided this Court with no reason to

depart from the general rule.

Although plaintiff argues that

she did not know of Officer David’s alleged falsehoods until her
arraignment, she had reason to know she was injured at the time
of her arrest even if the full extent of her injury was not then
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known. See Wallace, 549 U.S. at 391 (explaining that a cause of
action accrues when the wrongful act results in damages even if
the full extent of the suffered injury is not yet known or
predictable).
Lucien-Calixte was arrested on February 21, 2014 but did
not file her initial complaint until July 17, 2017.

Thus, her

claim of false arrest is barred by the statute of limitations.
Accordingly, defendants’ motion to dismiss Count I, with respect
to plaintiff’s false arrest claim, will be allowed.
Having dismissed plaintiff’s § 1983 false arrest claim as
time barred, the Court need not address the merits of that claim
but will note the distinction between false arrest and malicious
prosecution claims in this context.
In Calero-Colo, the First Circuit Court of Appeals
explained that when an arrest is conducted pursuant to a warrant
based on allegedly false statements, the lines between malicious
prosecution and false arrest are blurred. Calero-Colo, 68 F.3d
at 4.

An unlawful arrest conducted pursuant to a warrant, even

if that warrant is based on false allegations, generally gives
rise to a malicious prosecution claim. Id.

Conversely,

warrantless arrests generally precipitate false arrest claims.
Id.

That is because a warrant constitutes legal process and

damages for false arrest are restricted to the time between the
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arrest and the issuance of legal process. Id.

Malicious

prosecution claims, on the other hand, contemplate damages from
the initial arrest throughout any unlawful detention pursuant to
legal process. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 100 (1st
Cir. 2013).
In short, plaintiff’s alleged wrongful arrest pursuant to a
warrant based on false information is more appropriately
construed as a malicious prosecution claim, not a false arrest
claim.
ii.

Malicious Prosecution

Lucien-Calixte contends that Officer David caused her
malicious prosecution by providing false statements in his
police report and concealing exculpatory evidence.

Officer

David moves to dismiss on the grounds of either absolute or
qualified immunity for the alleged misconduct.
a.

Absolute Immunity

Officer David claims that he is entitled to absolute
immunity because plaintiff’s suit is based on grand jury
testimony.

Plaintiff counters that, although her initial

complaint was based on Officer David’s grand jury testimony, her
amended complaint includes additional allegations arising from
conduct that occurred outside of the grand jury proceedings.

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Absolute immunity protects a state official from § 1983
suits based on grand jury testimony. Rehrberg v. Paulk, 566 U.S.
356, 367 (2012).

This Court previously allowed defendants’

motion for judgment on the pleadings, finding that Officer David
was entitled to absolute immunity because plaintiff’s initial
complaint was based on his grand jury testimony (Docket Entry
No. 30).

In contrast, the allegations in plaintiff’s amended

complaint are not based on grand jury testimony.

Instead,

plaintiff’s amended complaint alleges injury based on Officer
David’s inclusion of false statements in his police report and
the concealing of evidence.

Consequently, Officer David is not

entitled to absolute immunity.
b.

Qualified Immunity

In the absence of absolute immunity, qualified immunity
protects Officer David from Lucien-Calixte’s § 1983 suit unless
1) he violated her constitutional right, 2) that right was
clearly established at the time of the violation and 3) a
reasonable officer, situated similarly to Officer David, would
have recognized that his conduct violated plaintiff’s
constitutional right. Limone v. Condon, 372 F.3d 39, 44 (1st
Cir. 2004).
As to the first prong, Lucien-Calixte alleges that Officer
David maliciously prosecuted her in violation of her
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constitutional rights.

To establish a claim of malicious

prosecution, plaintiff must show that Officer David 1) caused
2) a seizure of plaintiff pursuant to legal process unsupported
by probable cause and 3) criminal proceedings terminated in her
favor. See Hernandez-Cuevas, 723 F.3d at 101.
challenges only the second element:

Officer David

whether he had probable

cause to arrest and charge plaintiff for elder abuse and
neglect.
Officer David submits that because Lucien-Calixte was
indicted by a grand jury, he is entitled to a presumption of
probable cause.

Generally, “a grand jury indictment

definitively establishes probable cause.” Gonzalez Rucci v.
I.N.S., 405 F.3d 45, 49 (1st Cir. 2005).

That presumption may

be rebutted if an officer wrongfully obtained the indictment by
“knowingly presenting false testimony to the grand jury.” Id.
At the pleading stage, allegations of such misconduct by an
officer is sufficient to rebut the presumption of probable cause
established by a grand jury indictment. Id.

Plaintiff alleges

that Officer David obtained the indictment through false
testimony and, therefore, has pled sufficient facts to overcome
the presumption of probable cause established by a grand jury
indictment.

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Officer David further submits that in the absence of any
presumption, he had probable cause to arrest and charge LucienCalixte for elder abuse and neglect.

Probable cause exists if a

reasonable person in the officer’s position would believe that a
person committed a crime. Holder v. Town of Sandown, 585 F.3d
500, 504 (1st Cir. 2009).

Probable cause is vitiated if

deliberate falsehoods were necessary to the magistrate’s
probable cause determination.
101-02.

Hernandez-Cuevas, 723 F.3d at

Necessity is determined by “excis[ing] the offending

inaccuracies and insert[ing] the facts recklessly omitted” and
then evaluating whether the “corrected warrant affidavit would
establish probable cause.” Burke v. Town of Walpole, 405 F.3d
66, 82 (1st Cir. 2005).
Lucien-Calixte has plausibly alleged that probable cause to
arrest and charge her for elder abuse and neglect did not exist
but for Officer David’s misconduct.

She has pled facts that, if

proved, would show that Officer David deliberately falsified
statements from medical professionals, including a doctor, who
treated Belfort-Bois.

Excising such statements, the magistrate

would have been left with the statements of an EMT who
transported Belfort-Bois to the hospital, a nurse and
physician’s assistant who treated Belfort-Bois upon her arrival
at the Hospital and Officer David’s own observations.
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statements, standing alone, may arguably amount to probable
cause for elder abuse and neglect but plaintiff has sufficiently
contended that the including of Belfort-Bois’ omitted records
would have vitiated any such probable cause.
In essence, Lucien-Calixte alleges that Belfort-Bois’
medical records provided adequate explanations for every health
problem observed by the EMT, nurse, physician’s assistant and
Officer David.

Specifically, plaintiff contends that all of

Belfort-Bois’ health problems were either present before
plaintiff was charged with her care or were attributable to a
rapid decline in Belfort-Bois’ health shortly before and during
her transportation to the Hospital.
Plaintiff has, therefore, plausibly alleged that probable
cause to arrest and charge her for elder abuse and neglect would
not have existed but for Officer David’s misconduct, thereby
satisfying the first element of the qualified immunity analysis.
The remaining two disqualifying elements of the qualified
immunity analysis are easily met.
As to the second prong, the Fourth Amendment right to be
free from malicious prosecution was clearly established in this
Circuit at the time of Officer David’s alleged violation. See
Hernandez-Cuevas, 723 F.3d at 100-02 (recognizing that Fourth
Amendment protection against unreasonable seizure includes
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protection from malicious prosecution and is cognizable under
§ 1983).
Finally, as to the third prong, the Court considers whether
a reasonable officer, situated similarly to Officer David, would
have recognized that his conduct violated Lucien-Calixte‘s
constitutional right. See Limone, 372 F.3d at 44.

Plaintiff

alleges that Officer David deliberately falsified statements in
his police report and concealed evidence.

There is no doubt

that any reasonable officer would have recognized that
falsifying witness statements and excluding potentially
exculpatory evidence to establish probable cause violates an
individual’s constitutional right to be free from unreasonable
arrest and prosecution.
Because Officer David is entitled to neither absolute nor
qualified immunity and Lucien-Calixte has stated a claim of
malicious prosecution, defendants’ motion to dismiss Count I,
with respect to plaintiff’s § 1983 malicious prosecution claim,
will be denied.
C. Count II: Violation of 42 U.S.C. § 1983 Against the Town
Defendants maintain that plaintiff’s amended complaint, as
her initial complaint, fails to allege that the Town is liable
under § 1983.

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A municipality is liable under § 1983 for constitutional
violations if the execution of an “official policy [serves] as
the moving force of the constitutional violation.” Monell, 436
U.S.at 694.
This Court previously dismissed the § 1983 claim against
the Town in plaintiff’s original complaint because LucienCalixte failed sufficiently to allege that Officer David acted
pursuant to a municipal policy or custom (Docket Entry No. 30).
Plaintiff’s amended complaint alleges no additional facts
pertaining to any official policy or custom of the Town.

She

merely repeats the conclusory charges from her initial
complaint.

As was true the first time around, plaintiff’s

“threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are insufficient to
state a plausible claim of relief. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
Accordingly, defendants’ motion to dismiss will, with
respect to Count II, be allowed.
D. Count III: Violation of Massachusetts Civil Rights Act
Lucien-Calixte asserts that the defendants “interfered with
and deprived [her] of her exercise and enjoyment of civil
rights” under the Massachusetts Civil Rights Act (“MCRA”).

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The MCRA provides a remedy “coextensive” with § 1983, with
one disparity relevant to this case:

The MCRA requires a

constitutional violation by “threats, intimidation, or
coercion.” Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002).
Equally important, the same qualified immunity standard that
applies to § 1983 claims, applies to MCRA claims. Duarte v.
Healy, 537 N.E.2d 1230, 1231-33 (Mass. 1989).
As a preliminary matter, it is unclear whether plaintiff
intends to assert a false arrest claim, a malicious prosecution
claim or both under the MCRA.

This Court will, however, treat

the claim as one for malicious prosecution for two reasons.
First, an MCRA false arrest claim, just as plaintiff’s § 1983
false arrest claim, is time-barred. See M.G.L. c. 260 § 5B
(“Actions arising on account of violations of any law intended
for the protection of civil rights . . . shall be commenced only
within three years next after the cause of action accrues.”);
Pagliuca v. City of Boston, 626 N.E.2d 625, 627 (Mass. App. Ct.
1994) (“[A] tort cause of action accrues . . . when the
plaintiff is injured as a result of the defendant's unlawful act
. . . .”).

Second, as discussed above, a claim of wrongful

arrest conducted pursuant to a fraudulent warrant is more
appropriately styled as a claim of malicious prosecution.

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Defendants contend that Lucien-Calixte has not pled facts
sufficient to show that Officer David “intended” to threaten,
intimidate or coerce her.

In doing so, Officer David reads a

nonexistent requirement into the MCRA.

Although the MCRA

requires a constitutional violation “by threats, intimidation or
coercion,” the Massachusetts Supreme Judicial Court has
clarified that the MCRA “imposes no express or implied
requirement” that an individual intend to threaten, intimidate
or coerce a person into giving up a constitutional right.
Redgrave v. Boston Symphony Orchestra, Inc., 502 N.E.2d 1375,
1378 (Mass. 1987).

Quite the opposite, arrest and detention

have been held to be “intrinsically coercive” under the MCRA.
Sarvis v. Boston Safe Deposit and Trust Co., 711 N.E.2d 911, 918
(Mass. App. Ct. 1999).
Plaintiff has pled sufficient facts to show that Officer
David coerced her by arresting and charging her for elder abuse
and neglect based on false and omitted evidence. Having
satisfied the only relevant disparity between the MCRA and
§ 1983, defendants’ motion to dismiss Count III, with respect to
plaintiff’s MCRA claim of malicious prosecution against Officer
David, will be denied for the same reasons this Court will deny
defendants’ motion to dismiss plaintiff’s § 1983 claim of
malicious prosecution against Officer David.
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As to the Town, plaintiff’s MCRA claim fails because the
Town is a municipality and a municipality is not a “person”
covered by the MCRA. M.G.L. c. 12 § 11H; Howcroft v. City of
Peabody, 747 N.E.2d 729, 744 (Mass. App. Ct. 2001).

Therefore,

defendants’ motion to dismiss Count III, with respect to the
Town, will be allowed.
E. Count IV: Malicious Prosecution
Lucien-Calixte asserts claims of malicious prosecution
against both Officer David and the Town.

The Court recognizes

that the latter claim is made only to preserve plaintiff’s
appellate rights, this Court having dismissed it with prejudice
on August 1, 2018 (Docket Entry No. 30).

As discussed above, to

succeed on her claim of malicious prosecution, Lucien-Calixte
must prove that Officer David 1) instituted 2) a seizure of her
pursuant to legal process that was unsupported by probable cause
and 3) criminal proceedings terminated in her favor. Gutierrez
v. M.B.T.A., 437 Mass. 395, 405 (2002).
Officer David again challenges only whether he had probable
cause to arrest and charge Lucien-Calixte for elder abuse and
neglect.

As previously explained, plaintiff has pled sufficient

facts which, if proven, demonstrate that Officer David lacked
probable cause to arrest and charge her absent his alleged

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misconduct.

Accordingly, defendants’ motion to dismiss Count IV

will be denied.
ORDER
For the foregoing reasons, defendants’ motion to dismiss
(Docket No. 38) is,
a. with respect to the claims against the Town and the claim
against Officer David for false arrest in Count I, ALLOWED,
but with respect to the claim against Officer David for
malicious prosecution in Count I, DENIED;
b. with respect to Count II, ALLOWED;
c. with respect the claim against the Town in Count III,
ALLOWED, but with respect to the claim against Officer
David in Count III, DENIED;
d. with respect to Count IV, DENIED.
So ordered.
/s/ Nathaniel M. Gorton ____
Nathaniel M. Gorton
United States District Judge
Dated September 16, 2019

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