Rivera v. Worcester et al

Filing 16

District Judge Timothy S Hillman: MEMORANDUM AND ORDER entered denying 4 Motion to Dismiss (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PAUBLO RIVERA,
Plaintiff,
v.
CITY OF WORCESTER,
RICHARD BURGOS, individually
and in his official capacity as a police officer
in the City of Worcester, JAMES
O’ROURKE, individually and in his official
capacity as a police officer in the City of
Worcester, FRANCIS BARTLEY,
individually and in his official capacity as a
police officer in the City of Worcester,
and GARY J. GEMME, individually
and in his official capacity as the Police
Chief of the City of Worcester,
Defendants.

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Civil Action No. 4:12-cv-40066-TSH

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
October 26, 2012
HILLMAN, J.
Introduction
Paublo Rivera (“Plaintiff”) alleges he was unlawfully arrested and jailed for nine months
on armed robbery charges based on misidentifications made by three Worcester police officers
from a surveillance camera still photograph. Plaintiff has brought suit against the City of
Worcester, Police Chief Gary J. Gemme, Detectives Richard Burgos and James O’Rourke, and
Officer Francis Bartley (“Defendants”) asserting claims under federal and state law.
Specifically, the First Amended Complaint alleges four counts: false imprisonment (Count One),

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negligence (Count Two), failure to supervise and/or failure to train (Count Three), and a
violation of federal civil rights under 42 U.S.C. § 1983 (Count Four) (Docket No. 3-10). On June
5, 2012, Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted (Docket No. 4). 1 For the reasons set forth below, I deny
the motion on all counts, however, as it pertains to Count Two, I deny the motion without
prejudice and grant the Plaintiff leave to file a further amended complaint as to this claim.
Background
The underlying events began on May 8, 2010 when an armed robbery took place at a
Honey Farms Store located at 64 Vernon Street, Worcester, Massachusetts. Pl.’s 1st Am. Compl.
¶ 7. Following an investigation into the incident by the Worcester Police Department, still
photographs of the perpetrator were taken from the store’s surveillance system and posted in the
police station so members of the department could aid in indentifying the suspect. Id. ¶¶ 12-13.
Plaintiff is approximately 5′ 9″ tall. Id. ¶ 24. The victim of the robbery, Donald Sutton, told
investigators that the suspect was approximately 4′ 11″. Id. ¶ 20; Quinn Aff. 7. The surveillance
video in police custody showed Mr. Sutton, who is 5′ 11″, standing near the suspect and there
was a marked difference between their heights. Pl.’s 1st Am. Compl. ¶¶ 21-23. Moreover, the
video showed that the suspect had a tattoo on his hand which the Plaintiff does not have. Pl.’s 1st
Am. Compl. Ex. 1, at 2.
Detectives Richard Burgos and James O’Rourke, and Officer Francis Bartley (“Officers”)
each viewed the photograph displayed in the police station. Pl.’s 1st Am. Compl. ¶¶ 14-17.
Detective Burgos identified the suspect in the photograph as the Plaintiff. Id. ¶ 14. Detective
1

Defendants also moved to dismiss under Fed. R. Civ. P. 12(b)(5) for insufficiency of process as to the Officers
(Docket No. 4). This Court granted Plaintiff’s motion seeking additional time to serve process on the Officers
(Docket Nos. 8, 13). At this time, all Defendants have been served sufficiently thus a motion to dismiss on these
grounds is moot (Docket Nos. 3-3, 3-12, 10, 11, 12).

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O’Rourke and Officer Bartley also confirmed that the suspect was the Plaintiff but only after a
side-by-side comparison with a photograph of the Plaintiff already on file. Id. ¶¶ 15-17. The
department conducted neither a lineup nor a photo array. Id. ¶ 19. As a result of the Officers’
positive identifications, Detective O’Rourke executed an affidavit in support of an arrest warrant
for the Plaintiff. Id. ¶¶ 18, 25. Plaintiff was arrested and incarcerated from June 7, 2010 until
March 11, 2011 when prosecutors determined that he had been misidentified as the suspect of the
May 8th robbery. Id. ¶¶ 26-27.
Legal Standard
At the inception of every case, plaintiffs carry the burden to plead “a short and plain
statement of the claim” demonstrating that the court has jurisdiction over their matter and that
they are entitled to the relief they seek. Fed. R. Civ. P. 8(a)(1)-(3). This standard set forth in Rule
8 does not require “detailed factual allegations, but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S. Ct. 1955 (2007) (internal citations omitted). Defendants may move to dismiss plaintiffs’
actions for failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). For
a complaint to survive such a motion, it must evince the requisite factual detail 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, 129 S. Ct. 1937 (2009).
The facts underlying the cause of action must, at the very least, be “plausible.” Fitzgerald
v. Harris, 549 F.3d 46, 52 (1st Cir. 2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
559, 127 S. Ct. 1955 (2007) (noting that the complaint must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests”). The court is obligated to accept
these factual accounts contained within the complaint as true and draw all reasonable inferences

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in plaintiffs’ favor. See Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000); 5B
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004
& Supp. 2012). Although courts show great deference to plaintiffs, Rule 12(b)(6) is not rendered
a “toothless tiger.” Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989); see
also Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (“We hasten to add, however, that this
deferential standard does not force [a] court to swallow the plaintiff's invective hook, line, and
sinker; bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like
need not be credited.”). In fact, this standard requires that plaintiffs’ facts “nudge” the alleged
claims “across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (internal citations
omitted). Dismissal is appropriate where plaintiffs’ well-pleaded facts do not “possess enough
heft to show that appellants are entitled to relief.” Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.
2008); Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (granting a motion to dismiss is
necessary if a complaint cannot set out “factual allegations, either direct or inferential, respecting
each material element necessary to sustain recovery under some actionable legal theory”).
Discussion
I.

Count One – False Imprisonment

Establishing a claim of false imprisonment requires proof that the Officers intentionally
and unlawfully confined 2 the Plaintiff without his consent. Restatement (Second) of Torts § 35
(1965). Plaintiff alleges that the Officers unlawfully provided the information used to procure the
arrest warrant which led to Plaintiff’s imprisonment. See, e.g., Burke v. Town of Walpole, 405
F.3d 66, 81 (1st Cir. 2005) (“A Fourth Amendment violation may be established if a [plaintiff]

2

The First Circuit has held that “‘confinement’ can be imposed by physical barriers or physical force, . . . . [or even]
threats of physical force . . . [which] may be implicit [or] explicit, . . . , and that confinement can also be based on a
false assertion of legal authority to confine.” McCann v. Wal-Mart Stores, Inc., 210 F.3d 51, 53 (1st Cir. 2000)
(internal citations omitted).
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can show that officers acted in reckless disregard, with a high degree of awareness of [the]
probable falsity of statements made in support of an arrest warrant.”) (internal quotations
omitted).
The Officers claim they are entitled to qualified immunity under the Massachusetts Tort
Claims Act (“MTCA”). See Mass. Gen. Laws ch. 258, §§ 10(b)-(c); Def.’s Mem. Supp. Mot.
Dismiss, 7, 9. Moreover, the Officers claim that any alleged negligence during their criminal
investigation is equally entitled to qualified immunity so long as they acted “in good faith,
without malice and without corruption.” Cachopa v. Town of Stoughton, 72 Mass. App. Ct. 657,
665, 893 N.E.2d 407 (Mass. App. Ct. 2008). The First Circuit follows a two-part test for
determining when qualified immunity applies to public employees: “(1) whether the facts alleged
or shown by the plaintiff make out a violation of a constitutional right; and (2) . . . whether the
right was ‘clearly established’ at the time of the defendant's alleged violation.” Jones v. Scotti,
No. 11-2213, 2012 WL 4373655, at *3 (1st Cir. Sept. 26, 2012) (quoting Maldonado v.
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 236, 129
S. Ct. 808 (2009))). Here, it is plausible that Plaintiff’s Fourth Amendment right to be free from
unreasonable searches and seizures was violated at the time of his arrest and incarceration. See
U.S. Const. amend. IV; Martinez-Rodriguez v. Guevera, 597 F.3d 414, 420 (1st Cir. 2010) (“It is
clearly established law that the Fourth Amendment requires that arrests be based upon probable
cause.” (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223 (1964))). Accordingly, the Court
finds that Plaintiff has satisfied his burden pursuant to Rule 8, therefore, Defendants’ Motion to
Dismiss as to Count One is denied.
II.

Count Two – Negligence

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Plaintiff alleges that liability extends to Worcester based upon the Officers’ negligence
during the investigation. 3 In support of their motion to dismiss, however, Worcester argues for
qualified immunity protection and relies on several exceptions to governmental liability under
the MTCA. See, e.g., Mass. Gen. Laws ch. 258, §§ 10(b), (h). Section 10 of Chapter 258 is the
codification of the common law “public duty rule” 4 which “provide[s] governmental immunity
where the government owe[s] the plaintiff no duty different from the duty owed to the general
public.” Lawrence v. City of Cambridge, 422 Mass. 406, 408, 664 N.E.2d 1 (Mass. 1996). In
other words, “[t]he essence of the public duty rule is that a plaintiff harmed by government
action is required to show that he or she had a demonstrable right to expect protection different
from, and more extensive than, the protection owed to the public at large.” Cyran v. Ware, 413
Mass. 452, 456 n.4, 597 N.E.2d 1352 (Mass. 1992) (emphasis added). The exception under
Section 10(b) protects municipalities from suits “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a public employer or
public employee, acting within the scope of his office or employment, whether or not the
discretion involved is abused.” Mass. Gen. Laws ch. 258, § 10(b). The exception under Section
10(h) protects municipalities from suits for “failure to establish a police department or a
particular police protection service, or if police protection is provided, for failure to provide
adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes,
3

This count incorporates by reference all paragraphs contained in the Complaint, including the previous count of
false imprisonment. Plaintiff, however, fails to expand on how Worcester remains liable for the allegedly negligent
actions of its employees. To that end, it is not the Court’s responsibility to divine a theory for the Plaintiff. This
count simply makes a conclusory statement that Worcester is liable for Plaintiff’s injuries and that Plaintiff properly
satisfied his duty of presentment under Mass Gen. Laws ch. 258.
4

Section 10 clarified the “public duty rule” after the Supreme Judicial Court of Massachusetts (“SJC”) announced
its plan to abolish the rule in the future due to its ambiguous interpretation and lack of predictability within the
courts of the Commonwealth. See Jean W. v. Commw., 414 Mass. 496, 500-01 n.5, 610 N.E.2d 305 (Mass. 1993)
(Liacos, C.J., concurring). See also Estate of Davis v. United States, 340 F. Supp. 2d 79, 91 n.9 (D. Mass. 2004);
Gallego v. Wilson, 882 F. Supp. 1169, 1172 (D. Mass. 1995).

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identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law.” Id. §
10(h).
Specifically, Section 10(h) has been construed to “immunize a municipality when the
criminal acts of a third person are a cause of a plaintiff's harm, and the police were negligent in
not preventing that criminal conduct.” Carleton v. Town of Framingham, 418 Mass. 623, 629,
640 N.E.2d 452 (Mass. 1994) (police immunized for failing to pull over and detain a suspicious
driver who later killed the plaintiff in a drunk driving accident); see also Ariel v. Town of
Kingston, 69 Mass. App. Ct. 290, 293, 867 N.E.2d 367 (Mass. App. Ct. 2007) (police immunized
for failing to properly direct traffic which resulted in an accident that injured the plaintiff); Ford
v. Town of Grafton, 44 Mass. App. Ct. 715, 723-24, 693 N.E.2d 1047 (Mass. App. Ct. 1998)
(police immunized for failing to arrest a former spouse who violated his protective order and
later shot the plaintiff). If, however, “the police officer's negligent conduct was the direct and
primary cause of the harm in question,” then Section 10(h) does not provide immunity. LeSiege
v. Town of Sturbridge, No. 09-cv-30044-MAP, 2010 WL 1663991, at *4 (D. Mass. Mar. 24,
2010) (emphasis added).
Here, Worcester’s reliance on Section 10(h) is unpersuasive because it seeks to expand
the meaning of this section to protect municipalities from suits for failures during their
investigations, i.e., this section would immunize Worcester for any improprieties in the
investigation that led to Plaintiff’s arrest. A more complete reading of this section in conjunction
with relevant case law, however, demonstrates that it bars suits alleging a failure to investigate,
i.e., municipalities cannot be sued for sins of omission, either in establishing a police force or in
adequately protecting their citizenry. See Fares v. Mulligan, Civ. A. No. 91-12546-RCL, 1994
WL 600656, at *10 (D. Mass. July 26, 1994). Therefore, because the Plaintiff is challenging

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whether the Officers acted negligently during their investigation to establish the probable cause
required for obtaining the arrest warrant, Section 10(h) does not apply.
Notwithstanding Worcester’s Section 10(h) argument, its Section 10(b) argument is more
convincing. The issue under Section 10(b) is what constitutes a “discretionary function.” In
Harry Stoller & Co. v. City of Lowell, the SJC adopted a two-part test: (1) “whether the
governmental actor had any discretion at all as to what course of conduct to follow. . . .” and (2)
“whether the discretion that the actor had is that kind of discretion for which § 10(b) provides
immunity from liability.” 412 Mass. 139, 141, 587 N.E.2d 780 (Mass. 1992). Worcester relies on
Sena v. Commonwealth, where the court held that “decisions of law enforcement officers
regarding whether, when, how, and whom to investigate, and whether and when to seek warrants
for arrest” constituted discretionary functions. 417 Mass. 250, 256-57, 629 N.E.2d 986 (Mass.
1994) (“[W]e hold that the conduct of law enforcement officials in investigating potentially
criminal conduct and in seeking warrants for the arrest of those whom they investigate, are
discretionary functions and therefore fall within the exception in § 10(b).”). Nonetheless, the
court in Sena outlined several exceptions that would not be considered discretionary functions
under Section 10(b): (1) when “the conduct of a defendant police officer in investigating a crime
or in seeking a warrant violates officially established departmental procedures” or (2) when “an
officer . . . carelessly or recklessly misstates or fails to disclose relevant information he has to a
magistrate evaluating a warrant application, and thereby subvert[s] the integrity of [the warrant
process] by selling [the magistrate] shoddy merchandise without appropriate disclaimers.” Id. at
257 n.5 (internal quotations omitted); see also Daley v. Harber, 234 F. Supp. 2d 27, 33 (D. Mass.
2002) (finding that the City of Boston’s reliance upon the holding set out in Sena was

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unpersuasive because “[i]f an arrest is unlawful, there is no reason for it to be considered
discretionary, and thus no basis for immunity from suit under the MTCA”).
Here, it would be reasonable for the Court to consider the extreme discrepancy in height
and lack of tattoo between the suspect and Plaintiff, information not disclosed to the Clerk
Magistrate, as falling outside the bounds of Section 10(b) protection. Quinn Aff. 8-9. At this
stage the Court agrees with Worcester that Count Two lacks particularity, however, Plaintiff is
granted leave to amend under Fed. R. Civ. P. 15(a)(2) in order to plead this count with sufficient
detail. Accordingly, Defendants’ Motion to Dismiss as to Count Two is denied without prejudice
to renew after that filing.
III.

Counts Three & Four – Federal Civil Rights Violations Under 42 U.S.C. § 1983

It may be assumed, arguendo, that the factual underpinning of these counts is whether
Defendants had “reasonable ground,” i.e., “probable cause,” 5 to effectuate Plaintiff’s arrest. Both
counts, therefore, are tied to that single determination. At this juncture, however, the Court is not
concerned with the merits of the claims but rather must determine whether the Complaint
demonstrates enough factual detail to create at least a “plausible” claim for a Section 1983
violation. Count Three alleges that Worcester and Police Chief Gemme failed to properly
supervise the Officers which resulted in Plaintiff’s unconstitutional incarceration. Pl.’s 1st Am.
Compl. ¶¶ 38-40. Count Four alleges that all Defendants failed to have an “objective, good faith
belief” in finding “probable cause” to arrest Plaintiff. Id. ¶¶ 41-51. Defendants claim that
Plaintiff has failed to plead these counts with sufficient particularity to show that the Officers
acted in “reckless disregard, with a high degree of awareness of the probable falsity” of
Plaintiff’s identity. Def.’s Mem. Supp. Mot. Dismiss, 15.
5

Courts have interpreted “reasonable ground” under Massachusetts law to be synonymous with “probable cause.”
See, e.g., Santiago v. Fenton, 891 F.2d 373, 383 (1st Cir. 1989).

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A valid Section 1983 claim requires a showing that: (1) “the defendant . . . acted under
color of state law” and (2) “his or her conduct must have deprived the plaintiff of rights secured
by the Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008);
Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 151 (1st Cir. 2006). The First Circuit applies a
three-part inquiry to determine what constitutes acting under color of state law: “(1) whether
there was an elaborate financial or regulatory nexus between [defendants] and the government . .
. which compelled [defendants] to act as they did, (2) an assumption by [defendants] of a
traditionally public function, or (3) a symbiotic relationship involving the sharing of profits.”
Brown v. Newberger, 291 F.3d 89, 93 (1st Cir. 2002) (quoting Ponce v. Basketball Fed’n of P.R.,
760 F.2d 375, 377 (1st Cir. 1985)). Furthermore, Plaintiff must not only prove that Defendants
deprived him of a federally protected right but also that Defendants were the “cause in fact” of
that deprivation. See Soto v. Flores, 103 F.3d 1056, 1062-63 (1st Cir. 1997); see also Consejo de
Salud de la Comunidad de la Playa de Ponce, Inc. v. Gonzalez-Feliciano, --- F.3d ---, Nos. 111121, 11-1126, 11-1733, 2012 WL 3553610, at *16 (1st Cir. 2012) (noting that simply asserting
a violation of a federal statute is not enough to create a Section 1983 claim, “the plaintiff must
assert the violation of a federal right”) (citations omitted).
Here, the Officers clearly acted under the color of state law because they operated within
the “traditionally public function” of law enforcement and maintained a “regulatory nexus” with
government since they were employees of Worcester during the underlying events that gave rise
to this action. The crucial issue remaining is whether Plaintiff was deprived of a constitutional
right. According to the Complaint, the constitutional right at issue is the right to be secure from
unreasonable searches and seizures and from “unconstitutional incarceration” under the Fourth

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Amendment as applied to the states through the Due Process Clause of the Fourteenth
Amendment. See Ringuette v. City of Fall River, 146 F.3d 1, 4 n.2 (1st Cir. 1998).
“The Fourth Amendment right to be free from unreasonable seizures of the person
demands that an arrest be supported by probable cause.” Santiago v. Fenton, 891 F.2d 373, 383
(1st Cir. 1989) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964)). Moreover, it is
well established precedent that the protections provided by the Fourth Amendment are inherently
fundamental rights guaranteed to all citizens. See, e.g., Stanford v. Tex., 379 U.S. 476, 481, 85 S.
Ct. 506 (1965); Ker v. Cal., 374 U.S. 23, 32, 83 S. Ct. 1623 (1963); Mapp v. Ohio, 367 U.S. 643,
647-48, 81 S. Ct. 1684 (1961); Wolf v. People of the State of Colo., 338 U.S. 25, 27, 69 S. Ct.
1359 (1949); Gouled v. United States, 255 U.S. 298, 303-04, 41 S. Ct. 261 (1921).
Accepting the allegations in the Complaint as true, the Officers used only the still
photograph derived from surveillance camera footage to identify the Plaintiff as the perpetrator
of the May 8th armed robbery and made no other efforts, besides having had past interactions
with the Plaintiff, to corroborate the seemingly blatant discrepancies in physical features between
the Plaintiff and the suspect. Because the Plaintiff claims that the Officers did not have probable
cause to request an arrest warrant, he has alleged a violation of his Fourth Amendment rights
that, at least on its face, is actionable under Section 1983. See Santiago, 891 F.2d at 383 (noting
that Section 1983 claims are actionable if there was no probable cause for arrest). Accordingly,
the Court finds that Plaintiff has satisfied his burden pursuant to Rule 8, therefore, Defendants’
Motion to Dismiss as to Counts Three and Four is denied.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss for failure to state a claim
upon which relief can be granted is:

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1. DENIED as to the Officers on Count One;
2. DENIED without prejudice as to Worcester on Count Two; this Court grants the
Plaintiff leave to amend under Fed. R. Civ. P. 15(a)(2) in order to plead this count
with sufficient detail and particularity;
3. DENIED as to Worcester and Police Chief Gary J. Gemme on Count Three; and
4. DENIED as to all Defendants on Count Four.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE

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