Watson v Kirsch Liquors et al
District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim and granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. (Castles, Martin)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DAVID MITA, as Police Officer of the City )
Of Worcester and Individually; STEPHEN )
PIGNATARO, as Police Officer of the City )
Of Worcester and Individually; THE CITY )
OF WORCESTER; KIRSCH LIQUORS,
ROBERT KIRSCH; and JOHN BROYLES )
MEMORANDUM AND ORDER ON DEFENDANTS’
MOTIONS TO DISMISS
September 29, 2017
Plaintiff Elias Watson (“Plaintiff” or “Watson”) filed a multi-count complaint alleging
various federal and state civil rights violations and common law tort claims against Defendants
David Mita and Stephen Pignataro, Police Officers for the City of Worcester, the City of
Worcester (collectively, “the City Defendants”), Kirsch Liquors, along with store owner Robert
Kirsch and store employee John Broyles (collectively, the “Kirsch Defendants”). Defendants
move to dismiss all counts in the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on numerous
grounds, including that the claims fail as a matter of law, are time barred, and/or lack sufficient
Plaintiff’s Claims are as follows:
Count I – Violation of Federal Civil Rights - 42 U.S.C. § 1983 against Defendants Mita,
Pignataro and City of Worcester (Excessive Force and Unreasonable Seizure - Fourth and
Count II – Violation of Federal Civil Rights - 42 U.S.C. § 1983 against Defendants Mita,
Pignataro and City of Worcester (Failure to Intervene and/or Report Misconduct - Fourth
and Fourteenth Amendment);
Count III – Violation of Massachusetts Civil Rights Act (G. L. c. 12, §§ 11H -I) against
Defendants Mita, Pignataro and City of Worcester;
Count IV – Violation of Federal Civil Rights - 42 U.S.C. § 1983 against Defendant City
of Worcester (Monell/Supervisory Liability);
Count V – Assault and Battery against Defendants Broyles, Kirsch Liquors, Robert
Kirsch, Mita and Pignataro;
Count VI – Abuse of Process against All Defendants;
Count VII – Violations of Federal and State Civil Rights - 42 U.S.C. § 1983 Malicious Prosecution against All Defendants;
Count VIII – Fraud, Misrepresentation, and Deceit against Defendants Broyles,Mita and
On the evening of March 9, 2013, at approximately 8:00 p.m, Plaintiff visited
Kirsch Liquors located at 646 Main Street in Worcester, Massachusetts. Sometime thereafter,
Worcester police officers Stephen Pignataro and David Mita were dispatched to Kirsch Liquors
for a disturbance or fight involving the Plaintiff and an employee of Kirsch Liquors. Prior to the
arrival of the Officer Pignataro and Mita, Plaintiff was in the store, arguing with Defendant
Broyles, a Kirsch employee. See Exhibit 1 to City Defendants’ Memorandum, Kirsch Liquor
store surveillance (hereinafter, “Ex. 1”).1 In the surveillance footage, Broyles can be heard
Although store surveillance was attached to the City Defendants’ motion, this Court may consider it in the context of a motion
to dismiss. On a motion to dismiss, the court may properly take into account four types of documents outside the complaint
without converting the motion into one for summary judgment: (1) documents of undisputed authenticity; (2) documents that are
official public records; (3) documents that are central to plaintiff's claim; and (4) documents that are sufficiently referred to in the
complaint.” Nolet v. Armstrong, 197 F. Supp. 3d 298, 308 n.8 (D. Mass. 2016).
asking Plaintiff to leave the store. (Ex. 1 and Complaint, ¶ 33). Plaintiff yelled and swore at
Broyles in the store, stating “I wish one of y’all will touch me and I will show you a knife.” (Ex.
1) Plaintiff then challenged Broyles to “F*** with me.” (Ex. 1). A female employee of Kirsch
can be observed on the phone speaking with Worcester Police Department emergency dispatch.
(Ex. 1). Plaintiff then approached the counter, and continued to argue with Broyles. (Ex. 1).
Plaintiff was pushed to the ground by Broyles. (Ex. 1). He got back on his feet, refused to
leave the store, engaged in arguments with other patrons of the store, while continuing to yell at
Broyles. (Ex. 1 and Complaint, ¶¶ 36 and 37). Specifically, Plaintiff stated to Broyles, “you
f***ed with the wrong person,” “I am coming back,” “I will be your worst nightmare,” “I will
beat your f***ing punk a**,” and “I have a son and he will murder him.” (Ex. 1). At about this
time, Officer Pignataro entered the store and observed the Plaintiff’s behavior. (Ex. 1 and see
Exhibit 2 to City Defendants’ Memorandum, WPD Incident Report of Officer David Mita,
Exhibit 2, hereinafter “Ex. 2”). Officer Pignataro approached the Plaintiff and advised him to
calm down. (Ex. 1). The Plaintiff then advanced toward Officer Pignataro and stated that he had
a knife. (Ex. 1 and Ex. 2). Officer Pignataro attempted to restrain the Plaintiff, brought him to the
ground and handcuffed him. (Ex. 1 and Ex. 2). Officer Mita arrived on the scene after the
Plaintiff had been brought to the ground, and secured. (Ex. 1).
Plaintiff was charged in Worcester District Court with disturbing the peace and two
counts of assault with a dangerous weapon (knife) and released on personal recognizance. At the
Plaintiff’s trial on September 19, 2014, the District Court allowed the defense motion for a
required finding of not guilty on all counts. (Complaint at ¶ 55). Plaintiff filed this action on
September 16, 2016.
Standard of Review
On a Rule 12(b)(6) motion to dismiss, the Court “must assume the truth of all wellplead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally
Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75,
77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the
speculative level, ... on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555, 127 S.Ct. 1955(internal citations omitted). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937
(2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Dismissal is appropriate if plaintiff's
well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz
Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original
alterations omitted). “The relevant inquiry focuses on the reasonableness of the inference of
liability that the plaintiff is asking the court to draw from the facts alleged in the
complaint.” Ocasio–Hernà ndez v. Fortuño–Burset, 640 F.3d 1, 13 (1st Cir. 2011). A motion to
dismiss premised on the running of the applicable statute of limitations will be granted “when the
pleader’s allegations ‘leave no doubt that an asserted claim is time-barred.’” Gorelik v. Costin,
605 F.3d 118, 121 (1st Cir. 2010) (cite to quoted case omitted).
Both the City and the Kirsch Defendants assert that Plaintiff’s Complaint must be
dismissed because, 1) Plaintiff’s claims for federal civil rights violations (Counts I, II and IV),
state civil rights violations (Count III), assault and battery (Count V), abuse of process (Count
VI) and fraud, misrepresentation and deceit (Count VIII) are time-barred by the applicable
statute of limitations; and 2) Plaintiff’s federal and state claims for malicious prosecution (Count
VII) fail as Plaintiff did not suffer a post-arraignment deprivation of liberty, and Defendant City
police officers had sufficient probable cause to effectuate Plaintiff’s arrest on March 9, 2013.
Plaintiffs' Section 1983 Claims (Counts I, II, and IV) Against the City Defendants
Section 1983 does not contain a built-in statute of limitations. Nieves v. McSweeney, 241
F.3d 46, 51 (1st Cir.2001). For section 1983 claims, a federal court applies the forum state’s
limitation period governing personal injury actions. Id. Massachusetts has a three-year statute of
limitations for personal injury actions. Mass.Gen.L. ch. 260, § 2A. “Although section
1983 borrows its limitations period from state law, the accrual date for a section 1983 claim is
measured by federal law. Under federal law, such a cause of action accrues ‘when the plaintiff
knows, or has reason to know of the injury on which the action is based.’ ” Alamo–Hornedo v.
Puig, 745 F.3d 578, 581 (1st Cir.2014) (internal citations and citation to quoted case omitted).
“[A] plaintiff is deemed to know or have reason to know at the time of the act itself and not at
the point that the harmful consequences are felt.” Morán Vega v. Cruz Burgos, 537 F.3d 14,20
(1st Cir.2008). Furthermore, for statute of limitation purposes, each section 1983 claim is
analyzed independently. See Nieves, 241 F.3d at 52–53; See also Salcedo v. Town of Dudley, 629
F.Supp.2d 86, 98 (D.Mass.2009).
Plaintiff alleges that Officers Pignataro and Mita violated his Fourth and Fourteenth
Amendment rights by using excessive force during the Plaintiff’s arrest on March 9, 2013 and by
falsely reporting the events related to the arrest shortly thereafter. Plaintiff’s further alleges that
the Officers failed to intervene and prevent the alleged excessive use of force during the
Plaintiff’s arrest. Against the City of Worcester, Plaintiff alleges a Monell claim for employing
policies and customs that served as a direct cause of the Constitutional deprivation he sustained
on the date of the arrest.
Because the Plaintiff became aware that his rights had been violated at the time of his
arrest, March 9, 2013, the limitation period for the use of excessive force, false reporting, failure
to intervene and the Monell claim against the City accrue on that date. Since Plaintiff did not file
this present action until September 16, 2016, those actions are time barred.2
Plaintiff’s MCRA Claim (Count III) Against the City Defendants
Plaintiff’s Complaint also sets forth an MCRA claim against Officers Pignataro and Mita
and the City of Worcester. As to the City, it is well-settled that a municipality cannot be held
liable under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I. See Howcroft v.
City of Peabody, 51 Mass. App. Ct. 573, 591-93 (2001). A municipality is not a ‘person’ under
the MCRA, which precludes the City’s liability. Rinsky v. Trustees of Boston Univ., 2010 WL
5437289, *7 (D.Mass.2010). Plaintiff’s Complaint appears to allege that the Defendant Officers
violated his state civil rights from the date of arrest, March 9, 2013, until the resolution of his
criminal proceedings on September 19, 2014. (Complaint, ¶¶ 82-85). Plaintiff’s MCRA claim is
also time-barred by the statute of limitations as it arises out of his arrest on March 9, 2013.
The Massachusetts Civil Rights Act is subject to the three-year limitations period as set
forth in G. L. c. 260, § 5B. “The statute for limitation for an action filed under the MCRA
“begins running once a plaintiff knows or has reason to know of the alleged wrongful acts. A
plaintiff need not know the extent or severity of the harm suffered.” Sampson v. Town of
Plaintiff argued in his memorandum and again at the hearing that the actions of the Defendants from the time of the
arrest up to and including the trial on September 19, 2014, were continuous ongoing conspiracy, but did not allege
facts to support these theories in his Complaint.
Salisbury, 441 F.Supp.2d 271, 275 (D.Mass. 2006) (footnote omitted). For the statute of
limitations period to begin, “a plaintiff need only have knowledge of all the facts necessary to
make out his or her civil rights claim.” Id. Accordingly, the statute of limitations period begins
on the date of the wrongful act, “unless the wrong is ‘inherently unknowable.’” Id. at 276. As
with Plaintiff’s federal civil right claims discussed above, Plaintiff’s MCRA claim also arises out
of his arrest on March 9, 2013 and therefore, the claim was not “inherently unknowable” and is
Plaintiff’s Assault and Battery Claim (Count V) Against Officers Pignataro and Mita
And the Kirsch Defendants
Plaintiff alleges that Defendant Officers Pignataro and Mita “assaulted and battered [him]
… [by] using excessive and unreasonable force upon him” while effectuating his arrest on March
9, 2013. G. L. c. 260, § 2A, provides that all actions of tort “shall be commenced within three
years next after the cause of action accrues.” Robinson v. Carney, 2010 WL 183760, at *2 (D.
Mass. 2010). Under Massachusetts law, “actions of tort ... shall be commenced only within three
years next after the cause of action accrues. Mass. Gen. Laws c. 260, § 2A. A tort cause of action
for assault and battery accrues when the plaintiff is injured. Riley v. Presnell, 409 Mass. 239, 243
(1991). Watson’s allegation that the assault and battery alleged in his Complaint occurred on
March 9, 2013. Here, where the Plaintiff’s claim for assault and battery against each of the
Defendants named in this Count arises from his arrest on March 9, 2013, his claim is time-barred
as Plaintiff’s Complaint was filed six months after the statute of limitations expired. Thus,
Plaintiff’s claims for assault and battery against Officers Pignataro and Mita and the Kirsch
Defendants are time barred.
Plaintiff’s Abuse of Process Claim Against All Defendants (Count VI)
Plaintiff’s Complaint asserts a claim for abuse of process against all Defendants for
“participating in a scheme to institute criminal proceedings against the Plaintiff in the Worcester
District Court.” As alleged in the Complaint, Defendant Officers applied to the Clerk Magistrate
of the Worcester District Court to issue a criminal complaint against Plaintiff after his arrest on
March 9, 2013. Following his arraignment, Plaintiff was released on personal recognizance until
the date of his trial. To sustain an abuse of process claim, Plaintiff must establish that “process
was used ‘to accomplish some ulterior purpose for which it was not designed or intended, or
which was not the legitimate purpose of the particular process employed.’ ” See Omran v. U.S.,
2016 WL 4158556, at *8 (D.Mass. June 22, 2016), citing Millennium Equity Holdings, LLC v.
Mahlowitz, 456 Mass. 627, 636 (2010) (citations omitted). The three elements of abuse of
process are (1) “process” was used, (2) for an ulterior or illegitimate purpose, (3) resulting in
damage. Id.; Gutierrez v. Mass. Bay Transp. Auth., 437 Mass. 396, 407 (2002) (citations
omitted); Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975). “Process” refers to “the
papers issued by a court to bring a party or property within its jurisdiction.” Jones, 369 Mass. at
390. Massachusetts courts have limited process to three types: writs of attachment, the process
used to institute a civil action, and the process related to the bringing of criminal charges. Id. at
The Supreme Judicial Court has held that it is the “subsequent misuse of the process,
though properly obtained, [which] constitutes the conduct for which the liability is
imposed.” Quaranto v. Silverman, 345 Mass. 423, 426, 187 N.E.2d 859 (1963), citing Taylor v.
Swartwout, 445 F. Supp. 2d 98, 104 (D. Mass. 2006) (Gorton, J.) “The essence of this tort is the
malicious use of legal process to accomplish some ulterior purpose for which it was not designed
or intended, or which was not the legitimate purpose of the particular process employed.”
LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 142 (D. Mass. 2007) (Saylor, J.), quoting Carroll v.
Gillespie, 14 Mass.App.Ct. 12, 26, 436 N.E.2d 431 (1982).
The First Circuit has not ruled directly on the issue of accrual of an abuse of process
claim, however other jurisdictions have determined that abuse of process ordinarily “accrues at
such time as the criminal process is set in motion against the plaintiff, or when the Plaintiff was
aware that ‘such process was employed for an inappropriate collateral objective.’” Duamutef v.
Morris, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997) (citations omitted). Applying this rule, the
Plaintiff’s claim for abuse of process would have accrued when the criminal proceedings were
initiated against him. Here, the Plaintiff has alleged that he appeared for arraignment in the
Worcester District Court on March 11, 2013. (Complaint, ¶45). As such, the Plaintiff’s claim for
abuse of process accrued, at the latest, on March 11, 2013, the date of his arraignment, and his
claim would be dismissed as time-barred by the statute of limitations.
Plaintiff’s Fraud, Misrepresentation and Deceit Claim Against All Defendants (Count VIII)
Plaintiff’s claims fraud, misrepresentation and deceit against Officers Pignataro and Mita
and Defendant Broyles for making “false statements and representations of material facts” from
March 9, 2013, the date of the Plaintiff’s arrest, until the resolution of criminal proceeds on
September 14, 2014. This claim for fraud, misrepresentation and deceit are likewise governed by
the three-year statute of limitations set forth in G. L. c. 260, § 2A. This claim stems from the
Defendant officers’ alleged false reporting from the Plaintiff’s arrest on March 9, 2013. Because
Plaintiff had sufficient knowledge of the facts that would support his claim for fraud,
misrepresentation and deceit, at the latest, on March 11, 2013, when he was arraigned and the
facts related to his arrest were disclosed, this claim is also time-barred by the statute of
limitations. Accordingly, Count VIII is dismissed as to all Defendants.
Plaintiff’s Malicious Prosecution Claim Against All Defendants (Count VII)
Plaintiff’s Complaint asserts a federal civil rights claim, pursuant to 42 U.S.C. § 1983,
based upon malicious prosecution against all Defendants. It is well-settled that a cause of action
for malicious prosecution does not accrue until the termination of the criminal
proceedings. See Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001), citing Heck v.
Humphrey, 512 U.S. 477, 489 (1994), 114 S.Ct. 2364. Plaintiff’s claim for malicious prosecution
is therefore timely filed.
“The elements of a common-law cause of action for malicious prosecution are ‘(1) the
commencement or continuation of a criminal proceeding against the eventual plaintiff at the
behest of the eventual defendant; (2) the termination of the proceeding in favor of the accused;
(3) an absence of probable cause for the charges; and (4) actual malice.’ ” Cabot v. Lewis, No.
13-11903-FDS, 2017 WL 1013742, at *13 (D. Mass. Mar. 15, 2017) (quoting Nieves, 241 F.3d
More is needed to transform malicious prosecution into a claim cognizable under section
1983. See Nieves, 241 F.3d at 53. To bridge the gap, the plaintiff also must show a deprivation of
a federally-protected right. Id., citing Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st
Cir.1999); Roche v. John Hancock Mut. Life Ins Co., 81 F.3d 249, 254 (1st Cir. 1996). To assert a
viable claim for malicious prosecution under 42 U.S.C. § 1983, Plaintiff must show that (1) the
conduct complained of was committed by a person acting under color of state law; and (2) the
conduct deprived the plaintiff of clearly established rights, privileges or immunities guaranteed
by the federal Constitution or laws of the United States. See Meehan v Town of Plymouth, 167
F.3d 85, 88 (1st Cir. 1999). Plaintiff’s Complaint here asserts claims of federal claims of
malicious prosecution under both the Fourth and Fourteenth Amendments.
“It is well-established that malicious prosecution does not support a claim of a
substantive due process violation, so that cannot be the constitutional violation which supports a
§1983 claim.” Sheppard v. Aloisi, 384 F.Supp.2d 478, 491 (D.Mass. 2005) (citing Nieves, 241
F.3d at 53) (additional citations omitted). Moreover, “[n]o procedural due process claim can
flourish in this soil because Massachusetts provides an adequate remedy for malicious
prosecution.” Nieves, 241 F.3d at 53 (citations omitted). Therefore, to the extent that Plaintiff
bases his §1983 malicious prosecution claim on an alleged violation of his Fourteenth
Amendment rights, it must fail.
The question remains open “whether the Constitution permits the assertion of a section
1983 claim for malicious prosecution on the basis of an alleged Fourth Amendment violation.”
Id. at 54, and cases cited.3 Nieves “assume[d] … [that] under some circumstances,” a malicious
prosecution claim could be asserted as “a violation of the Fourth Amendment and thus ground a
cause of action under section 1983.” Id. Nieves further instructs that in order to bring a malicious
prosecution claim for a warrantless arrest under the Fourth Amendment, the Plaintiff is left with
“the task of showing some post-arraignment deprivation of liberty, caused by the application of
legal process, that approximates a Fourth Amendment seizure.” Id. The claim for malicious
prosecution based on the Fourth Amendment was dismissed in Nieves, where the court found
As the Supreme Court recently decided, the Fourth Amendment provides a basis under § 1983 for challenging pretrial detention. Manuel v. City of Joliet, –––U.S. ––––, 137 S.Ct. 911, 914–15, 197 L.Ed.2d 312 (2017). Manuel did
not address, however, whether the tort of malicious prosecution, as opposed to some other common law cause of
action, provides an appropriate framework for these Fourth Amendment § 1983 claims. See id. at 923 (Alito, J.,
dissenting) (stating majority had not resolved “whether a claim of malicious prosecution may be brought under the
that the Plaintiff did not sustain a post arraignment deprivation of liberty, in circumstances
similar to those here. Defendants here urge this court to do the same.
Here, Plaintiff was charged with disturbing the peace and assault with a dangerous
weapon, appeared for arraignment in Worcester District Court, and was released on personal
recognizance. All charges were dismissed at Plaintiff’s trial. Thus, criminal proceedings were
commenced against plaintiffs that eventually terminated in his favor. A defendant cannot be
liable for malicious prosecution, however, if he had probable cause to initiate the criminal
proceeding. Plaintiff has the burden to prove lack of probable cause; it cannot be inferred
merely from the fact of acquittal. See Muniz v. Mehlman, 327 Mass. 353, 359, 99 N.E.2d 37
(1951). Furthermore, the plaintiff must prove malice by showing that the defendant knew there
was no probable cause for the prosecution, and that he acted with an improper
motive. See Foley, 400 Mass. at 100, 508 N.E.2d 72. The issues of causation, probable cause
and malice require more factual analysis than is appropriate at this stage of the litigation.4
Accordingly, I have found that Plaintiff has alleged sufficient facts to state a plausible claim
for malicious prosecution and therefore, the Defendants’ motion to dismiss Count VII is
The Court in Nieves decided that case on a motion for summary judgment.
For the foregoing reasons, the City Defendants’ Motion to Dismiss (Docket No. 13) is
GRANTED as to Counts I, II, III, IV, V, VI, and VIII and DENIED as to Count VII; and the
Kirsch Defendants’ Motion to Dismiss (Docket No. 8) is GRANTED as to Counts V, VI, and
VIII and DENIED as to Count VII.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE
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