Abubardar v. Gross et al

Filing 19

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, defendants' motion to dismiss (Docket No. 9 ) is, with respect to all counts against William Gross, ALLOWED, but otherwise, DENIED. So ordered. (Vieira, Leonardo)

United States District Court
District of Massachusetts
Raheem Rashed Abubardar,
Plaintiff,
v.
William Gross and Ismael
Henriquez,
Defendants.

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Civil Action No.
20-11590-NMG

MEMORANDUM & ORDER
GORTON, J.
This action arises from the arrest of plaintiff Raheem
Rashed Abubardar (“Abubardar” or “plaintiff”) by Boston Police
Detective Ishmael Henriquez (“Henriquez”) for his alleged
failure to provide notice of a change of address in violation of
M.G.L. c. 6, § 178H.

In December, 2019, Plaintiff filed a

complaint against Henriquez and Boston Police Commissioner
William Gross (“Commissioner Gross”) (collectively,
“defendants”) in Massachusetts Superior Court, alleging that
defendants subjected him to false arrest and malicious
prosecution, thereby violating his constitutional rights and
also intentional infliction of emotional distress.

He filed his

First Amended Complaint (“FAC”) in July, 2020, whereupon
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defendants removed the action to this Court pursuant to 28
U.S.C. §§ 1331 and 1441(c).
Pending before the Court is defendants’ motion to dismiss
the claims against Commissioner Gross and to dismiss the FAC for
failure to state a claim.

For the reasons that follow, that

motion will be allowed, in part, and denied, in part.
I.

Background
Abubardar is a level three sex offender and was required to

register as such with the Boston Police Department pursuant to
M.G.L. c. 6, §§ 178C-178Q (“the Sex Offender Registration
Laws”).

In October, 2018, Abubardar completed the required

annual registration forms and identified his primary address as
724 Shawmut Avenue in Roxbury, Massachusetts and his secondary
address as 9 Joseph Street in Dorchester, Massachusetts.
Plaintiff indicated that the latter address was temporary “due
to being shot in both legs.”
In March, 2019, defendant Henriquez applied for and
obtained a criminal complaint against Abubardar for failure to
register as a sex offender.

The complaint noted that an address

audit conducted by detectives had led them to believe that
plaintiff failed to notify the Boston Police Department of a
change in his primary address.

Notably, Henriquez neither

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appended the registration forms to the complaint nor indicated
that Abubardar had provided two addresses on those forms.
Shortly thereafter, a warrant was issued for plaintiff’s
arrest and Abubardar was arrested on March 27, 2019.

In

December, 2019, the government issued a nolle prosequi
indicating it would no longer prosecute the charge against
plaintiff because it was unable to meet its burden at trial.
Abubardar contends that he was residing at his secondary
address at the time of the address audit and that Henriquez and
other officers failed to investigate whether he was present at
that address.

He alleges that he complied with the Sex Offender

Registration Laws and never abandoned the residence listed as
his primary address.
In the FAC, Abubardar asserts six counts against
defendants: false arrest in violation of 42 U.S.C. § 1983 and
Massachusetts law (Counts I and IV); malicious prosecution in
violation of 42 U.S.C. § 1983 and Massachusetts law (Counts II
and V); failure to investigate properly in violation of 42
U.S.C. § 1983 (Count III); and intentional infliction of
emotional distress (Count VI).
Defendants filed a motion to dismiss the FAC pursuant to
Fed. R. Civ. P. 12(b)(6) in September, 2020, which plaintiff
timely opposed.
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II.

Motion to Dismiss
As an initial matter, the parties have agreed to dismiss

Commissioner Gross from this action.

Accordingly, all claims

against Commissioner Gross will be dismissed.
Henriquez contends that the FAC must be dismissed due to
Abubardar’s failure to state a claim upon which relief can be
granted.

To the extent that plaintiff has stated plausible

claims, Henriquez asserts that he is entitled to qualified and
common law immunity from liability on all counts.
A. Legal Standard
To survive a motion under Fed. R. Civ. P. 12(b)(6), the
subject pleading must 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, 678
(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).
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
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judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).

A court also may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Ocasio-Hernandez, 640 F.3d at 12.

Rather, the

relevant inquiry focuses on the reasonableness of the inference
of liability that the plaintiff is asking the court to draw. Id.
at 13.
B. Section 1983 Claims (Counts I-III)
To bring suit against a government official pursuant to 42
U.S.C. § 1983,
it is enough to show that the official, acting under color
of state law, caused the deprivation of a federal right.
Burke v. Town of Walpole, 405 F.3d 66, 76 (1st Cir. 2005).
Abubardar asserts that Henriquez violated his constitutional
rights under the Fourth and Fourteenth Amendments of the United
States Constitution by 1) causing his arrest without probable
cause, 2) causing the commencement of his criminal prosecution
without probable cause and 3) failing to investigate properly
the purported crime that led to his arrest and subsequent
prosecution. 1

Although plaintiff brings his malicious prosecution claim under
both the Fourth and Fourteenth Amendments, it is actionable
under only the Fourth Amendment. See Calero-Colon v. BetancourtLebron, 68 F.3d 1, 3 n.7 (1st Cir. 1995).
1

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Henriquez submits that Abubardar’s constitutional rights
were not violated and, even if the allegations in the FAC are
sufficient to state a claim for such a violation, he is entitled
to qualified immunity because plaintiff’s claimed constitutional
rights were not clearly established.
To determine whether Henriquez is entitled to qualified
immunity, the Court must assess
(1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right; and (2) if
so, whether the right was ‘clearly established’ at the time
of the defendant’s alleged violation. . . . The second
prong, in turn, has two parts: (a) whether the legal
contours of the right in question were sufficiently clear
that a reasonable official would have understood that what
he was doing violated that right, and (b) whether the
particular factual violation in question would have been
clear to a reasonable official.
Díaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011) (internal
citations omitted).
At the motion to dismiss stage,
it is the defendant’s conduct as alleged in the complaint
that is scrutinized for ‘objective legal reasonableness.’
Higgins v. Town of Concord, 246 F. Supp. 3d 502, 516 (D. Mass.
2017) (emphasis in original) (quoting Behrens v. Pelletier, 516
U.S. 299, 309 (1996)).

Because it is not always possible to

determine whether a defendant is entitled to qualified immunity
prior to discovery, courts often evaluate such a defense at the
summary judgment stage. Id.

The rejection of a qualified
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immunity defense at the motion to dismiss stage does not
preclude a party from reasserting the defense after further
factual development. Id.
1. Deprivation of a Constitutional Right
Determining whether Abubardar has stated plausible claims
for false arrest, malicious prosecution and failure to
investigate bears a close relationship to the first step of the
qualified immunity analysis.

Accordingly, this Court will

analyze both at the same time.
Under the Fourth Amendment, an individual enjoys the right
to be free from unreasonable seizures, which means that an
arrest must be supported by probable cause. See Parks v. Town of
Leicester, No. 10-30120-FDS, 2012 U.S. Dist. LEXIS 78973, at *11
(D. Mass. June 7, 2012).

That protection “does not end when an

arrestee becomes held pursuant to legal process” and therefore
extends to malicious prosecution following an unreasonable
seizure. See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 98-100
(1st Cir. 2013).

To state a claim under § 1983 for malicious

prosecution, a plaintiff must allege 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.

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Bertram v. Viglas, No. 19-11298-LTS, 2020 U.S. Dist. LEXIS
67323, at *13 (D. Mass. Apr. 16, 2020) (quoting HernandezCuevas, 723 F.3d at 101).
With respect to Count III, the First Circuit has recognized
that a duty to investigate may arise in certain circumstances
even when an officer has obtained facts that would otherwise be
sufficient to establish probable cause. See Chapman v. Finnegan,
950 F. Supp. 2d 285, 296 (D. Mass. 2013).

To show that

Henriquez was obligated to conduct further inquiry under the
present circumstances, plaintiff must allege that the
information known to Henriquez gave him “an obvious reason to
doubt” that Abubardar had violated the Sex Offender Registration
Laws such that his failure to conduct an additional inquiry
“evinced a reckless disregard for the truth.” United States v.
Tanguay, 787 F.3d 44, 53-54 (1st Cir. 2015).
It is undisputed that the FAC contains allegations that
Henriquez caused Abubardar to be arrested and that criminal
proceedings terminated in plaintiff’s favor.

Therefore, the

plausibility of all three federal claims turns on whether
Abubardar has sufficiently alleged that Henriquez lacked
probable cause for his arrest and subsequent prosecution.
A finding of probable cause by a magistrate judge may
violate the Fourth Amendment if the officer seeking the arrest
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warrant made an “intentional or reckless omission of material
exculpatory facts” from the information presented to the
magistrate. Burke, 405 F.3d at 81 (1st Cir. 2005) (internal
quotation marks omitted).

Recklessness may be inferred where

“the omitted information was critical to the probable cause
determination.” Id. at 82.
Henriquez contends that he had probable cause to believe
that Abubardar failed to provide notice of a change of address
in violation of M.G.L. c. 6, § 178H and that the existence of a
registered secondary address does not negate the evidence
supporting such probable cause.
Under the Sex Offender Registration Laws, sex offenders are
required to provide certain information to local officials
including their home address and any secondary addresses. See
Commonwealth v. Kateley, 461 Mass. 575, 576 (2012).

Offenders

must also provide “notice of a change of address,” M.G.L. c. 6,
§ 178H, but are otherwise “free to live where they choose and to
move freely within and without the Commonwealth.” Doe v. Police
Comm’r of Boston, 460 Mass. 342, 347 (2011).
Henriquez assumes that Abubardar abandoned his primary
residence at 724 Shawmut Avenue but the allegations in the FAC,
which this Court accepts as true, contradict that assumption.
Plaintiff alleges that he executed the required registration
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forms and otherwise complied with the Sex Offender Registration
Laws, including the requirement to provide notice of any change
of address, and that he was innocent of the misconduct with
which he was charged.

He contends that he was residing at his

secondary address at the time Henriquez conducted the address
audit and asserts that he maintained 724 Shawmut Avenue as his
primary residence at all relevant times.
Based upon the allegations in the FAC, plaintiff makes a
compelling argument that Henriquez omitted key information that
may have affected the magistrate’s probable cause determination.
Henriquez does not mention the registered secondary address to
the magistrate judge or his failure to investigate that address
even though he was in possession of such pertinent information
that may well have exonerated plaintiff.

As indicated above,

Abubardar was free to travel throughout the Commonwealth and the
fact that he was not residing at his primary address at the time
of the address audit is not proof that he violated the Sex
Offender Registration Laws.
Even if it were certain that Abubardar had unlawfully
failed to provide notice of a change of address, Henriquez still
lacked probable cause to arrest and prosecute plaintiff on other
theories of liability under M.G.L. c. 6, § 178H.

The narrative

written by Henriquez in support of the criminal complaint
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against Abubardar, which is provided verbatim in the FAC, states
that Abubardar was liable for all four kinds of criminal
liability under § 178H, including failure to register as a sex
offender in the first instance.

Henriquez does not contend for

the purpose of the instant motion, however, that plaintiff
failed to register as a sex offender and Abubardar clearly
alleges that he executed the proper forms in October, 2018 and
that he complied with the Sex Offender Registration Laws.
Accordingly, it is evident that plaintiff has alleged that
Henriquez lacked probable cause to seek his arrest and
prosecution for at least some of the purported violations of §
178H and, therefore, Abubardar has stated claims under § 1983
for false arrest, malicious prosecution and failure to
investigate.

As to the first prong of the qualified immunity

analysis, the facts alleged by plaintiff are sufficient to
determine, if proved, that Henriquez violated Abubardar’s Fourth
Amendment rights.
2. Clearly Established Law
The second prong of the qualified immunity analysis
“focuses on whether [an] officer had fair notice that [his]
conduct was unlawful.” Burke, 405 F.3d at 85 (internal citation
omitted).

Henriquez contends that the Sex Offender Registration

Laws do not clearly define what it means to “fail[] to provide
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notice of a change of address,” M.G.L. c. 6, § 178H, and that it
was reasonable for him to infer that plaintiff had violated the
statute by no longer residing at his primary address.
That argument addresses the second rather than the first
part of the clearly established analysis.

First, this Court

finds that the legal contours of plaintiff’s Fourth Amendment
rights were clearly established at the time of his arrest in
March, 2019.

The rule against arrests without probable cause is

well-established in this Circuit and elsewhere. See Santiago v.
Fenton, 891 F.2d 373, 383 (1st Cir. 1989) (citing Beck v. Ohio,
379 U.S. 89, 91 (1964)).

The First Circuit expressly extended

the Fourth Amendment protection against seizure without probable
cause to malicious prosecution in 2013. See Hernandez-Cuevas,
723 F.3d at 98-100.

Moreover, the duty to undertake further

investigation when faced with reason to doubt information
supporting probable cause has been established for nearly as
long. See Tanguay, 787 F.3d at 53-54.

Accordingly, a reasonable

official would have understood that arresting and prosecuting an
individual without probable cause, or an investigation that may
vitiate probable cause, would be in violation of that
individual’s Fourth Amendment rights.
This Court also finds that the particular factual violation
in question would have been clear to a reasonable official.
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Assuming arguendo that reasonable officials could dispute
whether Abubardar failed to provide notice of a change of
address, it is undisputed that he did register as a sex offender
even though Henriquez stated that he failed to do so when
applying for the criminal complaint.

Because Henriquez was

allegedly in possession of Abubardar’s valid sex offender
registration forms, it would have been clear to a reasonable
official that seeking the arrest and prosecution of plaintiff
for all theories of liability under § 178H violated his rights
under the circumstances.
As plaintiff concedes, Henriquez may be able to assert a
successful qualified immunity defense after further facts are
uncovered by discovery.

At this stage, however, Henriquez is

not entitled to qualified immunity and dismissal of plaintiff’s
§ 1983 claims is unwarranted.
C. State Law Claims (Counts IV-VI)
Henriquez also challenges the plausibility of Abubardar’s
state law claims and asserts that common law immunity applies to
shield him from liability.
1. Plausibility
Abubardar asserts three state law claims in the FAC for
false arrest, malicious prosecution and intentional infliction
of emotional distress.
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Under Massachusetts law, false arrest consists of
(1) intentional and (2) unjustified (3) confinement of a
person, (4) directly or indirectly (5) of which the person
confined is conscious or is harmed by such confinement.
Viglas, 2020 U.S. Dist. LEXIS 67323, at *28.

Although probable

cause is not an element of false arrest, it is required for the
arrest to be lawful. See Fenton, 891 F.2d at 383 (“[A]t the
foundation of all the claims [including false arrest] is the
necessity that the arrest be supported by probable cause.”).
Here, Abubardar alleges that Henriquez intentionally and
directly caused his arrest without probable cause and that the
arrest caused him physical and emotional distress.

Such

allegations are clearly sufficient to state such a claim.
The elements of a state law claim for malicious prosecution
are identical to those of its federal analogue except that the
state claim requires that the plaintiff suffer damage and that
the defendant acted maliciously or for an improper purpose. See
Viglas, 2020 U.S. Dist. LEXIS 67323, at *29.

As noted above,

Abubardar has stated a federal claim for malicious prosecution
and has alleged that Henriquez acted maliciously and caused him
physical and emotional injury.

Accordingly, plaintiff’s

parallel state law claim is plausible.
Finally, in order to state a claim for intentional
infliction of emotional distress plaintiff must allege that the
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defendant engaged in extreme and outrageous conduct without
privilege thereby causing plaintiff severe emotional distress.
Limone v. United States, 579 F.3d 79, 91 (1st Cir. 2009).
Conduct is extreme and outrageous only if it is
beyond all bounds of decency and . . . utterly intolerable
in a civilized community.
Sena v. Commonwealth, 417 Mass. 250, 263 (1994).
Here, the factual allegations in the FAC state a claim for
intentional infliction of emotional distress.

Abubardar asserts

in the FAC that Henriquez’s actions caused him to suffer severe
emotional distress in the form of trauma, shock, anxiety,
humiliation, embarrassment and fear.

His allegations that

Henriquez failed to investigate the secondary address prior to
seeking a criminal complaint permit a reasonable inference of
reckless or outrageous conduct.
As a result, the FAC will not be dismissed for failure to
state plausible claims under Massachusetts law.
2. Common Law Immunity
Under Massachusetts common law, a public official is not
liable for negligence or other error in the making of a
discretionary decision if the official acted in good faith and
without malice or corruption. Echavarria v. Roach, No. 16-cv11118, 2017 U.S. Dist. LEXIS 144589, at *43 (D. Mass. Sept. 7,
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2017).

Conversely, such immunity is not available where a

plaintiff alleges that the defendant acted with malice or
corruption. Id.
As with qualified immunity, the Court cannot conclude that
Henriquez is entitled to common law immunity from plaintiff’s
state law claims.

Accepting the allegations in the FAC as true,

Abubardar clearly alleges that Henriquez acted maliciously and
that his conduct “either designed or reasonably anticipated to
harm” plaintiff.
Accordingly, dismissal of plaintiff’s state law claims is
inappropriate at this stage.
ORDER
For the foregoing reasons, defendants’ motion to dismiss
(Docket No. 9) is, with respect to all counts against William
Gross, ALLOWED, but otherwise, DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 7, 2021

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