Boudreau v. Petit et al

Filing 74

MEMORANDUM AND ORDER: State Defendants' Motion to Dismiss, ECF No. 58 , is GRANTED. City Defendants' Motion to Dismiss, ECF No. 59 , is GRANTED IN PART and DENIED IN PART. City Defendants' Motion is GRANTED with respect to Counts II, III, VII, XVIII, and XIX. With respect to the surviving counts, Plaintiff is ORDERED to file an amended complaint within 30 days of the issuance of this opinion that complies with Rule 8's mandate that the plaintiff present his legal claims in "a short and plain statement." So Ordered by District Judge William E. Smith on 2/16/2024. (Urizandi, Nissheneyra)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
KEVIN PETIT, STEVE LUSSIER, JOHN
)
LUSSIER, DONALD LUSSIER, JAMES
)
BROWN, NICHOLAS RIVELLO, CITY OF
)
WARWICK, WARWICK POLICE DEPARTMENT,)
and RHODE ISLAND STATE POLICE,
)
)
Defendants.
)
___________________________________)
JASON BOUDREAU,

C.A. No. 17-301 WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
Before
Rivello,

the

and

Court

Rhode

are

Defendants

Island

State

James

Police’s

Brown,

Nicholas

(“State

Police”)

(collectively, “State Defendants”) Motion to Dismiss for Failure
to State a Claim, ECF No. 58, as well as Defendants Kevin Petit,
City of Warwick, and Warwick Police Department’s (collectively,
“City

Defendants”)

Motion

to

Dismiss,

ECF

No.

59.

For

the

following reasons, State Defendants’ Motion is GRANTED, and City
Defendants’ Motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
The

Court

is

faced

with

a

forty-nine-page

Complaint

–

consisting of 519 paragraphs – that presents a tangled web of
factual

allegations

and

conclusory
1

statements.

Nonetheless,

Plaintiff Jason Boudreau’s underlying theory is straightforward:
he

claims

his

former

employer

and

a

Warwick

Police

Officer

conspired with two State Police officers to fabricate a baseless
embezzlement charge against him.

Boudreau asserts twenty-one

counts under both federal and state law against those individuals,
as well as against the City of Warwick, Warwick Police Department,
and State Police, based on the purportedly improper search warrant
and proceeding arrest.
Boudreau

served

as

the

Finance

Manager

at

Automatic

Temperature Controls, Inc. (“ATC”) between September 2009 and June
2011.

Compl. ¶¶ 12, 126, 151-52, ECF No. 1-1.

As Finance Manager,

Boudreau oversaw ATC’s financing department, handled the company’s
financial

statements,

managed

the

company’s

distributed salaries and bonuses to ATC employees.

payroll,

and

Id. ¶¶ 16, 29.

Boudreau reported directly to Steve Lussier, John Lussier, and
Donald Lussier (“the Lussiers”), who served as ATC’s officers and
shareholders.1

Id. ¶¶ 13-15.

On June 24, 2011, ATC terminated Boudreau.

Id. ¶ 126.

Steve

Lussier (“Lussier”) stated that ATC terminated Boudreau after the
company discovered pornographic images of minors on his work
computer.

Id. ¶¶ 151-52.

It is Boudreau’s position, however,

Boudreau initially named the Lussiers as defendants. Compl.
¶¶ 4-6, ECF No. 1-1. By agreement, they were voluntarily dismissed
from the case. Voluntary Dismissal, ECF No. 55.
1

2

that ATC terminated him due to his June 2011 arrest for driving
with a suspended license.

See id. ¶¶ 124-26.

In particular,

Boudreau alleges that the Lussiers “conspired” with Defendant
Kevin Petit (“Petit”) to have Boudreau arrested for driving on a
suspended license.2

Id.

Petit is a Warwick Police Officer and

member of the Rhode Island State Police Internet Crimes Against
Children Task Force who had participated in the investigation of
Boudreau’s work computer.

Id. ¶¶ 177-78.

Shortly after his termination, Boudreau initiated an action
with the Rhode Island Department of Labor and Training (“DLT”)
regarding the non-payment of wages from ATC.

Id.

¶ 129.

Boudreau

sought to recover his last paycheck and outstanding vacation pay
from ATC.

See id. ¶¶ 128-29.

In response, Lussier asserted that

ATC did not owe any outstanding wages or vacation pay because
Boudreau had paid himself in “unwarranted bonuses by his own hand
in the sum of $35,604.00.”
11, 2011) 56, ECF No. 1-1.

Ex. 2 Compl., Lussier Ltr. to DLT (July
The DLT ultimately awarded Boudreau

$2,800.00 in gross withheld wages in July 2011.

Ex. 3 Compl., DLT

Ltr. (July 20, 2011) 58, ECF No. 1-1.
Nearly two years later, Boudreau commenced an action against
the Lussiers and Petit in this Court (“2013 Lawsuit”).
172.

Compl. ¶

Boudreau asserted that the Lussiers and Petit violated the

The charges for driving on a suspended license were later
dismissed. Compl. ¶ 127.
2

3

Federal Wiretap Act by utilizing monitoring software on Boudreau’s
work computer.

See id.; see also Boudreau v. Lussier, 901 F.3d

65, 69-70 (1st Cir. 2018).

This Court later granted summary

judgment against Boudreau. See Boudreau, 901 F.3d at 80 (affirming
the judgment in favor of all defendants).
Two weeks after receiving service of the 2013 Lawsuit, Lussier
and Petit met at the State Police barracks on July 30, 2013.
Compl. ¶ 192.

There, Boudreau alleges that Lussier and Petit

engaged in a conspiracy to frame Boudreau for embezzlement in
retaliation for the 2013 Lawsuit.

Id. ¶¶ 187, 194.

Lussier told

Petit that Boudreau, between December 2010 and June 2011, had paid
himself bonuses to which he was not entitled.

Id. ¶ 214.

Lussier

did not provide Petit with ATC’s financial statements, general
ledger entries, or payroll records of other employees.

Id. ¶¶

229, 237, 351-52, 473.
Boudreau alleges that Lussier and Petit were aware that such
statements, as well as any supporting evidence, were either false
or omitted exculpatory information.

Id. ¶¶ 426-33.

For instance,

Boudreau states that Lussier and Petit produced payroll reports of
legitimate pay to Boudreau and falsely asserted that ATC had not
authorized such pay.

Id. ¶ 340.

Despite such alleged knowledge,

Petit initiated the investigation and referred the case to the
State Police.

Id. ¶¶ 428-33.

Boudreau alleges that none of the

conduct at issue occurred within Petit’s jurisdiction as a Warwick
4

Police Officer, and furthermore, that Petit had not previously
handled embezzlement investigations for the State Police.

Id. ¶¶

177-78, 277-81.
Approximately nine months later, Lussier participated in a
second interview at the State Police barracks.

Id. ¶ 241.

This

time, Lussier met with Defendants James Brown and Nicholas Rivello,
who were two members of the State Police Financial Crimes Unit.
Id.

During that interview, Lussier stated that Boudreau paid

himself bonuses totaling $34,147 to which he was not entitled.
Ex. 7 Compl., Steve Lussier Witness Statement 99, ECF No. 1-1. In
support, Lussier provided ATC’s payroll journals and Boudreau’s
individual earnings report.
Boudreau

alleges

that

Id. at 98.
Lussier’s

statement

to

Brown

and

Rivello was inaccurate and contradicted ATC’s financial documents,
which Lussier had not provided to Petit, Brown, or Rivello.
¶¶ 251-52, 261.

Id.

Further, Boudreau alleges that Brown and Rivello

were aware of the falsity of the statement, as they had conspired
with Lussier and Petit to frame Boudreau for embezzlement.
377-84.
a

search

Id. ¶¶

In relying on that statement, Brown and Rivello obtained
warrant

for

Boudreau’s

September 1, 2010 to June 30, 2011.

bank

records

Id. ¶ 263.

spanning

from

After acquiring

those records, the State Police arrested Boudreau and charged him

5

with embezzlement on June 11, 2014.3

Id. ¶ 266.

Years later, on May 18, 2017, Boudreau filed this action in
the Rhode Island Superior Court, which City Defendants later
removed to this Court.

See Petition for Removal, ECF No. 1.

Following a two-and-a-half-year stay of this case pending the
resolution of Boudreau’s state court embezzlement charges, City
Defendants and State Defendants each filed the instant motions to
dismiss.

Order on Mot. to Stay, ECF No. 19; Text Order (Nov. 2,

2021).
II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil
Procedure

12(b)(6),

a

plaintiff’s

complaint

must

assert

“sufficient factual matter . . . to ‘state a claim to relief that
is 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)).

In assessing such motions, federal courts employ a two-

step analysis. “First, the court must distinguish ‘the complaint’s
factual allegations (which must be accepted as true) from its
conclusory

legal

allegations

(which

need

not

be

credited).’”

Garcia-Catalan v. United States, 734 F.3d 100, 102 (1st Cir. 2013)
(quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st

On February 6, 2023, the charges were dismissed because ATC
and the Lussiers “were no longer willing to participate in the
prosecution of the embezzlement charges.” Dismissal under Cr. R.
48(a), ECF No. 49-1.
3

6

Cir. 2012)).

Second, the court must “take the complaint’s well-

pled

non-conclusory,

(i.e.,

non-speculative)

facts

as

true,

drawing all reasonable inferences in the pleader’s favor, and see
if

they

plausibly

narrate

a

claim

for

relief.”

Schatz

v.

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)
(citing Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st
Cir. 2011)). To evaluate plausibility, “the reviewing court [must]
draw on its judicial experience and common sense.”

Iqbal, 556

U.S. at 679.
This Court recognizes that Boudreau is proceeding pro se in
this matter.

To ensure pro se litigants receive “a meaningful

opportunity to be heard,” Eagle Eye Fishing Corp. v. U.S. Dept. of
Commerce, 20 F.3d 503, 506 (1st Cir. 1994), courts read pro se
complaints

“with

an

extra

degree

of

solicitude,”

Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).

Rodi

v.

Even so, “the right

to self-representation is not a ‘license not to comply with
relevant rules of procedural and substantive law.’”

Andrews v.

Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985), cert.
denied, 476 U.S. 1172 (1986) (quoting Faretta v. California, 422
U.S. 806, 835 n.46 (1975)).

Ultimately, “[t]he Constitution does

not require judges - or agencies, for that matter - to take up the
slack when a party elects to represent himself.” Eagle Eye Fishing
Corp., 20 F.3d at 506.

7

III. DISCUSSION
Boudreau brings a flurry of federal and state law claims
against Petit, Brown, Rivello, the Warwick Police Department, the
City of Warwick, and the State Police.
following

counts

against

those

The Complaint asserts the

parties,

as

numbered

in

the

Complaint: (I) Retaliation; (II) Conspiracy to Retaliate; (III)
Abuse of Process; (IV) Deliberate Fabrication of False Evidence;
(V) Conspiracy to Fabricate Probable Cause; (VII) Obstruction of
Justice; (VIII) Denial of Right to a Fair Trial; (IX) Retaliatory
Inducement;

(X)

Retaliatory

Prosecution;

(XI)

Defamation

and

Libel; (XII) Libel Per Se; (XIII) Concealment of Evidence; (XV)
False

Statements

Invasion

of

and

Privacy;

Omissions
(XVII)

in

Warrant

Failure

to

Affidavits;
Intervene;

Negligent Infliction of Emotional Distress; (XIX)

(XVI)

(XVIII)

Intentional

Infliction of Emotional Distress; (XX) Negligent Employment; and
(XXI) Failure to Properly Train and Supervise.4
The

following

recitation

addresses

the

viability

of

the

counts that are asserted against each party.
A.

State Defendants

The lion’s share of Boudreau’s allegations regarding State
Defendants are conclusory, and what allegations remain fall short

Boudreau also asserts claims against parties not subject to
the instant motions, as numbered in the Complaint: (VI) Bad Faith
Destruction of Evidence; and (XIV) False Report of a Crime.
4

8

of asserting viable claims.

Boudreau broadly alleges that Brown

and Rivello conspired with Lussier and Petit to improperly arrest
and charge Boudreau for embezzlement.

Compl. ¶¶ 239, 377.

In

support, Boudreau asserts that Brown and Rivello knew or had reason
to know of the falsity of the statements that Lussier provided to
Petit in July 2013 and to them in May 2014.

Id. ¶¶ 262, 378-84.

Accordingly, he says, Brown and Rivello violated Boudreau’s rights
and harmed his reputation by moving forward with the search warrant
and arrest.

Id. ¶¶ 377-85, 417, 449-64, 486-504.

Boudreau’s Complaint does not provide facts to support his
assertion that Rivello and Brown knew that Lussier’s statements
were false.

Rather, Boudreau alleges that Lussier provided a

statement to Brown and Rivello concerning the bonuses at issue
that contradicted his previous statement and that contradicted
ATC’s financial documents.5

Id. ¶ 378.

Boudreau asserts that

Brown and Rivello’s decision to move forward with the investigation
in light of this purported discrepancy demonstrates the existence
of a conspiracy.

See id. ¶¶ 377-85; Pl.’s Resp. to Mot. 16, ECF

Despite the Complaint’s assertion that Rivello was present
for Lussier’s 2014 statement, the partial transcript attached to
the Complaint states that Detective James Brown and Investigator
Gerald Ratigan conducted the interview.
Ex. 7 Compl., Steve
Lussier Witness Statement 91, ECF No. 1-1.
Nonetheless, this
discrepancy is of no moment, as Boudreau cannot establish claims
against Rivello even if Rivello had conducted the interview.
5

9

No. 69.

For the reasons discussed below, Boudreau fails to state

a claim for relief.
1. Conspiracy to Fabricate Probable Cause Against Brown
and Rivello (Count V)
To establish a conspiracy claim based on a deprivation of
civil

rights,

Boudreau

must

sufficiently

allege

that

“a

combination of two or more persons act[ed] in concert to commit an
unlawful act.”

Estate of Bennett v. Wainwright, 548 F.3d 155, 178

(1st Cir. 2008) (citation omitted).

The essential element of such

a claim “is an agreement between the parties ‘to inflict a wrong
against or injury upon another,’ and ‘an overt act that results in
damages.’”

Ousley v. Town of Lincoln, 313 F. Supp. 2d 78, 85

(D.R.I. 2004) (quoting Earle v. Benoit, 850 F.2d 836, 844 (1st
Cir. 1988)).

Notably, “a claim of conspiracy . . . will not

survive a motion to dismiss if it makes conclusory allegations
without making supporting factual assertions.”

Diaz v. Devlin,

229 F. Supp. 3d 101, 111 (D. Mass. 2017) (citing Slotnick v.
Staviskey, 560 F.2d 31, 33 (1st Cir. 1977)).
Here, Boudreau’s claim rests upon the theory that Brown and
Rivello knowingly relied on Lussier’s purportedly false statements
to obtain a search warrant, and therefore, their reliance supports
the existence of a conspiracy.

See Compl. ¶¶ 366-86.

Boudreau

alleges that Brown and Rivello knew or should have known that
Lussier’s statement from May 2014 was false because it contradicted

10

his July 2013 statement to Petit and contradicted ATC’s payroll
reports and financial statements.

Id. ¶ 378.

Such allegations fail to establish a viable claim.

Although

a conspiracy claim may rely upon a “matter of inference”, Diaz,
229 F. Supp. 3d at 111 (quoting Estate of Bennett, 458 F.2d at
178), a complaint “must set forth who did what to whom and why.”
DuBois v. Alves, No. CV 22-11203-RGS, 2022 WL 4376041, at *4 (D.
Mass. Aug. 22, 2022) (quoting Columbus v. Biggio, 76 F. Supp. 2d
43, 52 (D. Mass. 1999)).

Here, Boudreau does not allege facts

demonstrating how Brown and Rivello knew that Lussier’s statements
in May 2014 were false.

To the extent that Brown and Rivello could

have known of the falsity based on purported discrepancies, that
fact alone is not sufficient to support the existence of a concrete
agreement

to

(dismissing

conspire.
a

See

conspiracy

Diaz,

claim

229

that

F.

did

Supp.
“not

3d

at

111

contain

any

allegations that would support an inference that there existed a
concrete

agreement

between

the

officers

involved

in

the

investigation”); see also McSheffrey v. Wilder, No. 2:21CV630,
2023 WL 9188005, at *11 (E.D. Va. Nov. 16, 2023) (dismissing
conspiracy

claim

supporting

a

when

there

were

“no

that

[the

defendants]

conclusion

fabricate an indictment”).

factual

allegations
conspired

to

Further, Boudreau provides no facts

11

explaining why Rivello and Brown would seek to conspire against
Boudreau.6
Accordingly, Boudreau fails to state a plausible claim of
conspiracy to fabricate probable cause.
2. Denial of a Right to a Fair Trial Against State
Defendants (Count VIII)
Boudreau next asserts that State Defendants violated his
right to a fair trial.

The Complaint posits that Brown and Rivello

improperly obtained a search warrant by relying on statements and
information from Lussier that they knew were false, which resulted
in the State Attorney General choosing to prosecute Boudreau.
Compl.

¶¶

Defendants

417-24.
knowingly

In

support,

utilized

Boudreau

false

alleges

statements

on

that

State

accusatory

instruments, created false information concerning the embezzlement
claim, and concealed and destroyed exculpatory evidence.
A

party

establishes

a

denial

of

fair

trial

Id.

claim

by

demonstrating that “an (1) investigating official (2) fabricates
evidence (3) that is likely to influence a jury’s decision, (4)
forwards that information to prosecutors, and (5) the plaintiff
suffers a deprivation of liberty as a result.”

Soomro v. City of

Boudreau posits that Rivello and Brown assisted Petit to
protect him from a civilian’s lawsuit under the “Blue Wall of
Silence.” Pl.’s Resp. to Mot. 11, ECF No. 69. Boudreau provides
no such allegation in his Complaint, and in fact, he alleges that
Lussier did not reveal to Brown and Rivello in his 2014 statement
that Boudreau had previously filed suit against him and Petit.
Compl. ¶ 267.
6

12

New York, 174 F. Supp. 3d 806, 815 (S.D.N.Y. 2016) (quoting
Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir.
2012)).

Such

claims

provide

redress

on

the

grounds

that

“[f]abrication of evidence in order to pursue criminal charges
offends fundamental notions of decency.”

Ricci v. Rhode Island,

No. 120CV00543MSMPAS, 2023 WL 4686025, at *9 (D.R.I. July 21,
2023).

In light of that rationale, the investigating officer must

have knowledge that the evidence was fabricated.

Id.

Boudreau’s allegations do not create a plausible inference
that State Defendants had knowledge of fabricated evidence.

As

previously discussed, Boudreau does not provide sufficient facts
to illustrate how or why State Defendants would know that Lussier’s
statements were not accurate.
provides

no

basis

for

the

Likewise, Boudreau’s Complaint

allegation

that

State

Defendants

fabricated information or concealed exculpatory evidence.

It is

entirely unclear from the Complaint whether State Defendants had
access to exculpatory information. It is also unclear how State
Defendants could have access to such information, particularly
when such evidence would likely be in the possession of ATC and
its

officers.

See

Demosthene

v.

City

of

New

York,

No.

14CIV816SJVMS, 2018 WL 10072931, at *8 (E.D.N.Y. July 20, 2018)
(dismissing a denial of fair trial claim because the plaintiff did
not “present[] facts that could show [the officers’] personal
involvement in the alleged evidence fabrication”), report and
13

recommendation adopted, No. 14 CV 816 (SJ) (VMS), 2019 WL 3992868
(E.D.N.Y. Aug. 16, 2019), aff’d, 831 F. App’x 530 (2d Cir. 2020).
Accordingly,

Boudreau

fails

to

state

a

plausible

claim

regarding denial of right to a fair trial.
3. Concealment of Evidence Against Brown and Rivello
(Count XIII)
In a similar vein, Boudreau sets forth a concealment of
evidence claim under 42 U.S.C. § 1983 based on the theory that
Brown and Rivello concealed evidence to fabricate probable cause.
The Complaint alleges that Brown and Rivello, as well as the
Lussiers

and

Petit,

violated

his

constitutional

rights

by

willfully and maliciously concealing exculpatory documents and
information.

Compl. ¶¶ 465-80.

Such information consists of

payroll reports of ATC employees who had received bonuses, ATC job
costs reports, ATC’s general ledger reports, and ATC’s monthly
financial statements.

Id. ¶¶ 467-74.

As previously noted, Boudreau’s Complaint does not allege how
Brown and Rivello, as State Police officers, knew of or had access
to any exculpatory information that would be solely within the
control of ATC.

Indeed, Boudreau expressly asserts that, when

Lussier provided his statements to police, he withheld ATC’s
general ledger entries, ATC’s payroll records involving other
employees, and ATC’s financial statements.
52, 473.

Id. ¶¶ 229, 237, 351-

Therefore, Brown or Rivello could not have possibly

14

concealed or destroyed such information when Lussier withheld it
from them in the first place.

See id.

Further, Brown and Rivello had no obligation to seek out and
uncover such evidence following Lussier’s May 2014 statement.

It

is well settled that an officer “may terminate [his] investigation
when []he accumulates facts that demonstrate sufficient probable
cause.”

Acosta v. Ames Dept. Stores, Inc., 386 F.3d 5, 11 (1st

Cir. 2004).

As a result, once probable cause exists, there is no

constitutional

duty

for

a

police

officer

“to

explore

the

possibility that exculpatory evidence may exist or to conduct any
further investigation in the hope of finding such evidence.”

Id.;

see Holder v. Town of Sandown, 585 F.3d 500, 505 (1st Cir. 2009)
(“[W]e have already rejected the proposition that a police officer
has a standing obligation to investigate potential defenses or
resolve conflicting accounts prior to making an arrest.” (citation
omitted)).
The First Circuit recognizes that “[p]robable cause requires
only

a

probability

that

Holder, 585 F.3d at 504.

the

[suspect]

committed

the

crime.”

In assessing whether an officer relied

on probable cause, courts make an objective inquiry based only on
the facts that were known to the officer at the time. Id. Notably,
the officer’s conclusion regarding the existence of probable cause
need only be reasonable, rather than “ironclad[] or even highly
probable.”

Acosta, 386 F.3d at 11.
15

Here, Boudreau’s Complaint and the attached transcript from
Lussier’s May 2014 interview reveal that probable cause existed
following the interview.

Under Rhode Island law, the offense of

embezzlement consists of three elements: “1) that defendant was
entrusted with the property for a specific use, (2) that he came
into possession of the property in a lawful manner, often as a
result of his employment, and (3) that defendant intended to
appropriate and convert the property to his own use and permanently
deprive that person of the use.”

State v. Oliveria, 432 A.2d 664,

666 (R.I. 1981); see R.I. Gen. Laws § 11-41-3.
Lussier, as ATC’s President, addressed each of those elements
in his statement to Brown and Rivello.

Specifically, Lussier

stated that Boudreau was responsible for the payroll of ATC’s
employees during his tenure as ATC’s Financial Manager.
Compl., 92-93.

Ex. 7,

Lussier later stated that Boudreau utilized that

position to improperly pay himself bonuses totaling over thirtyfour thousand dollars.
assertion,

Lussier

Id. at 98-99.

provided

individual earnings report.

And in support of that

payroll

journals

Id. at 94.

and

Boudreau’s

Therefore, there was no

obligation for Brown and Rivello to investigate for exculpatory
evidence, as

it was objectively reasonable for

believed that probable cause existed.7

them to have

See Acosta, 386 F.3d at 10

Moreover, as previously discussed, there are no factual
allegations demonstrating that Brown and Rivello had reason to
7

16

(noting that “information furnished by a victim is generally
considered sufficiently reliable to support a finding of probable
cause”(citing Forest v. Pawtucket Police Dep't, 377 F.3d 52, 57
(1st Cir.2004)).
Accordingly, Boudreau fails to state a plausible claim of
concealment of evidence.
4. False Statements and Omissions in Warrant Affidavits
Under 42 U.S.C. § 1983 Against Brown (Count XV)
The theory of liability and supporting factual allegations
for

Boudreau’s

omissions

in

claim

against

warrant

Brown

affidavits

concealment of evidence claim.

for

false

largely

statements

overlap

with

and
his

Therefore, that claim fails on the

same grounds as Count XIII.
5. Invasion of Privacy (R.I. Gen. Laws § 9-1-28.1)
Against Brown and State Police (Count XVI)
Boudreau asserts an invasion of privacy count against Brown
and the State Police.

The claim centers on the theory that Brown

and the State Police violated Boudreau’s right to privacy by
gaining access to his bank records through a warrant based on false
and misleading evidence.

Compl. ¶ 493.

Consequently, Boudreau

alleges that the improper release of such records to third parties

doubt Lussier’s statements. See Holder v. Town of Sandown, 585
F.3d 500, 506 (1st Cir. 2009) (holding that “there was no reason,
inherent in the situation, for [the officer] to believe that [the
victim] had lied”).
17

resulted in “unreasonable publicity to [his] private life.”

Id.

¶¶ 494-95.
The Rhode Island Right to Privacy Act (“RIPRA”) provides
redress for unreasonable invasions of privacy.

R.I. Gen. Laws §

9-1-28.1; Brousseau v. Town of Westerly, 11 F. Supp. 2d 177, 183
(D.R.I. 1998).

To establish a violation of the right to privacy,

a party must demonstrate: 1) “an invasion of something that is
entitled to be private or would be expected to be private”; and 2)
“[t]he

invasion

was

reasonable man.”

or

is

offensive

or

objectionable

R.I. Gen. Laws § 9-1-28.1.

to

a

The Rhode Island

Supreme Court recognizes there can exist “an expectation of privacy
in . . . bank records” and that “bank records would not be
publicized.”

Pontibriand v. Sundlun, 699 A.2d 856, 865 (R.I.

1997).
Although Boudreau likely has an expectation of privacy in his
bank records, the Complaint does not establish that the invasion
was offensive or unreasonable.

RIPRA does not extend the right to

privacy to bank records or other evidence that law enforcement
agencies

properly

obtain

through

the

warrant

process.

See

Brousseau, 11 F. Supp. 2d at 183 (“[I]t is difficult to believe
that the Rhode Island General Assembly intended to impose liability
for

constitutionally

permissible

searches

by

government

officials.”); see also Schroeder v. Utah Att’y Gen.’s Off., 358
P.3d

1075,

1081

(Utah

2015)
18

(“A

state

intrusion

is

not

unreasonable, however, when the state acts under a valid warrant
or subpoena.”); Brutman v. Union Bank of Cal., N.A., No. C051070,
2006 WL 3503476, at *21 (Cal. Ct. App. Dec. 6, 2006) (holding that
“plaintiff has no viable claim for invasion of privacy, because
his bank records were disclosed pursuant to a search warrant”).
Accordingly, Boudreau may not maintain a claim for invasion
of privacy.
6. Failure to Intervene/Neglect to Prevent Harm from
Conspiracy Against Brown and Rivello (Count XVII)
Boudreau asserts a claim titled “Failure to Intervene/Neglect
to Prevent Harm from Conspiracy” against Brown and Rivello pursuant
to 42 U.S.C. § 1986.

Compl. ¶¶ 499-504.

Much like Boudreau’s

other claims against Brown and Rivello, the basis for this count
is that Brown and Rivello were aware that Petit and the Lussiers
had

provided

false

and

misleading

information.

Id.

¶

500.

Consequently, Boudreau alleges that Brown and Rivello are liable
for not taking action to prevent such wrongful conduct.

Id. ¶¶

501-04.
Boudreau premises his claim on § 1986.

That section renders

liable “[e]very person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title,
are about to be committed, and having power to prevent or aid in
preventing the commissions of the same, neglects or refuses [to do
so].”

42 U.S.C. § 1986.

Nonetheless, a plaintiff seeking to

19

recover under § 1986 must first state a claim for conspiracy to
interfere with civil rights under 42 U.S.C. § 1985.

Gattineri v.

Town of Lynnfield, 58 F.4th 512, 516 (1st Cir. 2023) (noting that
“violations

of

§

1986

necessarily

depend

upon

a

preexisting

violation of § 1985”); see Hahn v. Sargent, 523 F.2d 461, 470 (1st
Cir. 1975) (holding that “dismissal of appellant’s claim under §
1986 falls upon the rejection of his § 1985 claims”).
To establish a conspiracy claim under § 1985, Boudreau’s
allegations must demonstrate the following elements:
(1) a conspiracy, (2) a conspiratorial purpose to
deprive a person or class of persons, directly or
indirectly, of the equal protection of the laws or of
equal privileges and immunities under the laws, (3) an
overt act in furtherance of the conspiracy, and (4)
either (a) an injury to person or property, or (b) a
deprivation of a constitutionally protected right or
privilege.
Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

In interpreting

the second element, the First Circuit requires allegations of
“racial,
animus”

or
as

otherwise
the

class-based,

motivation

for

the

invidiously
state

discriminatory

officials’

actions.

Knowlton v. Shaw, 704 F.3d 1, 12 (1st Cir. 2013); see Parker v.
Landry, 935 F.3d 9, 18 (1st Cir. 2018) (“[N]ot every agreement is
sufficient to ground a section 1985(3) conspiracy[.]”).
Boudreau’s claim falls short on two fronts.

First, Boudreau

fails to establish a violation of § 1983 by Brown or Rivello, which
is a prerequisite to establishing a claim under § 1985.
20

See

Gattineri, 58 F.4th at 516 (dismissing a § 1985 claim because the
plaintiffs were “[w]ithout any viable § 1983 claims to anchor
[their] § 1985(3) conspiracy [claim]”).

Second, even if Boudreau

could establish a § 1983 claim, his Complaint does not provide any
allegations that Brown or Rivello were motivated by a class-based
animus against Boudreau.

See Knowlton, 704 F.3d at 12 (dismissing

a § 1985 claim because plaintiff did not allege class-based animus
as a motivating factor for the officials’ conduct).
Accordingly, Boudreau fails to state a plausible claim on
this count.
7. Defamation and Libel Against Rivello, Brown, and State
Police (Count XI)
Boudreau asserts claims for defamation and libel on the
grounds that State Defendants republished Lussier’s purportedly
false

statements

to

the

Providence

Attorney General’s office.
Boudreau,

the

Providence

Compl.

Journal

Journal
¶¶

relied

and

Rhode

447-64.
on

State

Island

According to
Defendants’

statements to publish an article reporting that the State Police
arrested and charged Boudreau for embezzlement after his former
employer accused him of improperly paying himself unauthorized
bonuses.8

Id. ¶ 455.

Further, the State Attorney General relied

Similar to his other claims, Boudreau alleges that Lussier’s
statements were false because they contradict “ATC’s payroll
reports, financial statements, and emails that the Defendants
intentionally destroyed.” Compl. ¶ 457.
8

21

upon such statements to proceed with formal proceedings against
Boudreau for embezzlement.9

See id. ¶¶ 451, 455.

To state a defamation claim under Rhode Island law, a party
must

sufficiently

defamatory

allege

statement

“(1)

the

concerning

utterance

another;

(2)

of
an

a

false

and

unprivileged

publication to a third party; (3) fault amounting to at least
negligence; and (4) damages, unless the statement is actionable
irrespective of special harm.”

Nassa v. Hook-SupeRx, Inc., 790

A.2d 368, 373 n.10 (R.I. 2002).

Rhode Island courts define

defamatory statements as those that are “false and malicious,
imputing conduct which injuriously affects a man[’]s reputation,
or which tends to degrade him in society or bring him into public
hatred and contempt.”

Fosu v. Univ. of R.I., 590 F. Supp. 3d 451,

460 (D.R.I. 2022) (quoting Reid v. Providence J. Co., 37 A. 637,
638 (R.I. 1897)).

Ultimately, “whether a statement is defamatory

is a question of law for the Court to decide.”

Santagata v.

MiniLuxe, Inc., No. CV 18-428 WES, 2020 WL 2322851, at *6 (D.R.I.
May 11, 2020) (citing Budget Termite & Pest Control, Inc. v.
Bousquet, 811 A.2d 1169, 1172 (R.I. 2002)).

Although Boudreau does not expressly allege it in his
defamation count, the Court infers from Boudreau’s other
allegations that his claim also includes the theory that the State
Attorney General relied upon those purportedly defamatory
statements to pursue charges against him. See Compl. ¶ 451, 455.
9

22

In their Motion to Dismiss, State Defendants aver that the
statements were not defamatory because Boudreau was indeed charged
and arrested for embezzlement based on his former employer’s
accusations.

Mem. Law Supp. State Defs.’ Mot. Dismiss (“State

Defs.’ Mem.”) 17, ECF No. 58-1; see Marcil v. Kells, 936 A.2d 208,
213 (R.I. 2007) (“A plaintiff must show that the publication was
defamatory on its face or by way of innuendo.”).

Although State

Defendants are correct that Boudreau was charged and arrested based
on his employer’s accusations, Boudreau’s Complaint also alleges
that State Defendants republished Steve Lussier’s statements to
the police, which consisted of purportedly false information that
attributed criminal conduct to Boudreau.

See Compl. ¶¶ 448-53.

Therefore, State Defendants’ argument does not address Boudreau’s
theory that they republished the purportedly false information
contained in Lussier’s statements.
State Defendants also contend that Boudreau’s claims are
precluded by a qualified privilege.
Court agrees.

State Defs.’ Mem. 18-19.

The

Public officials acting in their official capacity

receive

a

qualified

privilege

when

performing

their

official

duties.

See, e.g., Henry v. Media Gen. Operations, Inc., 254 A.3d

822, 835-38 (R.I. 2021) (holding that a public official acting in
his duties is only liable for defamatory statements made with
actual malice); see also Burke v. Town of Walpole, 405 F.3d 66, 95
(1st

Cir.

2005)

(noting

that
23

“several

jurisdictions

have

recognized . . . a conditional privilege for statements made by
the police to members of the press or public”).

A qualified

privilege precludes liability for false and defamatory statements
when “the publisher act[s] in good faith correctly or reasonably
believes that he has a legal, moral or social duty to speak out,
or that to speak out is necessary to protect either his own
interests, or those of third [parties], or certain interests of
the public.”

Ponticelli v. Mine Safety Appliance Co., 247 A.2d

303, 305-06 (R.I. 1968).
Nonetheless, a qualified privilege does not prevent liability
when “the alleged defamatory statement is the product of ill will
or malice.”
2011).

To

Ims v. Town of Portsmouth, 32 A.3d 914, 930 (R.I.
defeat

the

privilege,

the

defamed

party

must

sufficiently allege that the “primary motivating force for the
communication was the publisher’s ill will or spite.”

Swanson v.

Speidel Corp., 293 A.2d 307, 309 (R.I. 1972) (quoting Ponticelli,
247 A.2d at 308).

Because the existence of a qualified privilege

is an issue of law, it is within the Court’s purview to determine
whether the privilege exists.

Mills v. C.H.I.L.D., Inc., 837 A.2d

714, 720 (R.I. 2003).
The Complaint does not provide facts to support an inference
that Rivello and Brown’s statements were primarily motivated by
ill will or spite.

As outlined previously, Boudreau’s allegations

concerning State Defendants do not demonstrate that they knew or
24

could have known of the purported falsity of Lussier’ statements.
Moreover, the Complaint does not state why Rivello or Brown would
be motivated to harm Boudreau’s reputation, particularly when they
had no connection to Boudreau, the Lussiers, or Petit prior to the
embezzlement investigation.

See Fosu, 590 F. Supp. 3d at 462

(finding no qualified privilege based on the allegation that the
defendant

university

engaged

in

a

campaign

to

destroy

the

plaintiff’s reputation for speaking out against the university).
Therefore, a qualified privilege precludes

Boudreau from

asserting claims of defamation and libel against State Defendants.
8. Libel Per Se Against Brown and Rivello (Count XII)
Although Boudreau asserts a libel per se claim, he does not
provide specific allegations in support of that count.
462-64.

Compl. ¶¶

Even if the Court assumes that the defamation allegations

serve as the basis for Boudreau’s libel per se claim, a qualified
privilege precludes such a claim.

See Zeigler v. Rater, 939 F.3d

385, 393-97 (1st Cir. 2019) (applying the qualified privilege to
preclude a libel per se claim).

Moreover, such a claim is

inapplicable to Brown and Rivello’s statements, as it only applies
to statements “imput[ing] insolvency, financial embarrassment,
unworthiness of credit, or failure in business to a plaintiff.”
Andoscia v. Coady, 210 A.2d 581, 584 (R.I. 1965).
Accordingly, the Court dismisses that count against Brown and
Rivello.
25

9. Negligent and Intentional Infliction of Emotional
Distress Against Brown and Rivello (Counts XVIII and
XIX)
Boudreau cannot establish claims for negligent infliction of
emotional

distress

or

intentional

distress.

See Compl. ¶¶ 505-11.

infliction

of

emotional

The Rhode Island Supreme Court

confines the application of negligent infliction of emotional
distress to the “limited circumstances where the plaintiff is
either in the zone of the physical danger, or is a bystander to a
tragic incident involving someone with whom he or she is closely
related.”

Swerdlick v. Koch, 721 A.2d 849, 864 (R.I. 1998).

The

tort is plainly inapplicable in this case because there are no
allegations that Boudreau was put in such situations.
the claim must be dismissed.

Therefore,

See Jalowy v. Friendly Home, Inc.,

818 A.2d 698, 710 (R.I. 2003) (dismissing a negligent infliction
of

emotional

distress

claim

because

the

plaintiff

“was

not

physically endangered by defendants’ alleged negligence; because
he did not otherwise fall within either of the above-specified
classes of persons who can bring claims for negligent infliction
of emotional distress” (citing Liu v. Striuli, 36 F. Supp. 452,
480 (D.R.I. 1999)).
Further,

to

establish

claims

for

either

negligent

or

intentional infliction of emotional distress, a plaintiff must
allege

“physical

improper conduct.”

symptomatology

resulting

from

the

allegedly

Vallinoto v. DiSandro, 688 A.2d 830, 838 (R.I.
26

1997)

(citing

Reilly

v.

United

States,

547

A.2d

894,

898

(R.I.1988)); see Swerdlick, 721 A.2d at 864 (noting that the
physical

symptomatology

requirement

applies

to

both

types

of

emotional distress claims); see also Norton v. Hoyt, 278 F. Supp.
2d 214, 220 (D.R.I. 2003) (“The Rhode Island Supreme Court has
raised this already high bar by making physical symptomatology an
additional predicate to recovering damages.” (citing Reilly, 547
A.2 at 899)).

Boudreau falls far short of that standard because

he does not allege any physical symptoms whatsoever.

See Lisnoff

v. Stein, 925 F. Supp. 2d 233, 242 (D.R.I. 2013) (dismissing a
claim for intentional infliction of emotional distress due to “the
complete absence of any assertions that [defendant’s] alleged
conduct resulted in physical symptomatology”).
Accordingly, Boudreau fails to establish claims for either
negligent

infliction

of

emotional

distress

or

intentional

infliction of emotional distress against State Defendants.
10. Negligent Employment and Failure to Properly Train
and Supervise Under 42 U.S.C. § 1983 Against the
State Police (Counts XX and XXI)
Lastly, Boudreau asserts claims pursuant to § 1983 against
the State Police based on theories of negligent employment and
failure to properly train.

Compl. ¶¶ 512-19.

The Civil Rights

Act of 1871 established § 1983 as a mechanism to “render[] certain
‘persons’ liable for deprivation of constitutional rights.”

Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 72 (1989) (Brennan,
27

J., dissenting).

In interpreting what constitutes a “person,” the

United States Supreme Court established “that neither a State nor
its officials acting in their official capacities are ‘persons’
under § 1983.”

Id. at 71 (majority op.).

Consequently, a party

may not state a claim against a state agency under that section.
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003)
(noting that claims under § 1983 are not viable against a state or
its agencies); see also Brown v. Newberger, 291 F.3d 89, 92 (1st
Cir. 2002) (“The claims under 42 U.S.C. § 1983 fail because a state
and its agencies are not ‘persons.’” (quoting Will, 491 U.S. at
71)).
Because Boudreau has no viable § 1983 claim against the State
Police, the Court grants State Defendants’ Motion on that count.
B.

City Defendants
1. Retaliation in Violation of 42 U.S.C. § 1983 Against
Petit (Count I)

Boudreau asserts a First Amendment retaliation claim on the
basis that Petit retaliated against Boudreau for filing the 2013
Lawsuit.

Compl. ¶¶ 282-307.

To establish retaliatory motive,

Boudreau relies on the allegation that Petit met with Steve Lussier
to discuss the embezzlement issue within two weeks of Boudreau’s
service of the 2013 Lawsuit upon Petit and Lussier.
93, 292-94.

Id. ¶¶ 192-

Boudreau also notes that Petit did not serve as a

police officer in ATC’s municipality, did not serve in the State
28

Police’s Financial Crime Unit, and had never previously engaged in
an embezzlement investigation for the State Police.

Id. ¶¶ 177-

78, 269-72.
To state a claim for retaliation, a party must allege that
“(1) he or she engaged in constitutionally protected conduct, (2)
he or she was subjected to an adverse action by the defendant, and
(3) the protected conduct was a substantial or motivating factor
in the adverse action.”

D.B. ex rel. Elizabeth B. v. Esposito,

675 F.3d 26, 43 (1st Cir. 2012).

Even when a party establishes

those elements, a defendant may avoid liability if he or she “would
have reached the same decision . . . even in the absence of the
protected conduct.”

Powell v. Alexander, 391 F.3d 1, 17 (1st Cir.

2004) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977)).
Boudreau presents sufficient allegations to state a prima
facie

retaliation

constitutionally

claim.

protected

First,
conduct

when

Boudreau

engaged

commencing

the

in
2013

Lawsuit, as it is long settled that filing a lawsuit constitutes
protected conduct.

See id. (noting that filing a lawsuit is

constitutionally protected conduct); Fabiano v. Hopkins, 245 F.
Supp. 2d 305, 310 (D. Mass. 2003) (same); see also Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) (“[T]he right
of access to the courts is an aspect of the First Amendment right
to petition the Government for redress of grievances.”).
29

Second,

Boudreau

indisputably

experienced

an

charged and arrested for embezzlement.

adverse

result

by

being

See Lyons v. Wall, 464 F.

Supp. 2d 79, 84 (D.R.I. 2006) (“An action is considered ‘adverse’
for retaliation purposes if it would ‘deter a person of ordinary
firmness’ from the exercise of the right at stake.” (quoting Bart
v. Telford, 677 F.2d 622, 625 (7th Cir. 1982))).
Third, the temporal proximity between Boudreau’s filing of
the

2013

Lawsuit

and

the

meeting

establishes a causal connection.

between

Lussier

and

Petit

Temporal proximity alone can

serve as “sufficient circumstantial evidence of causation” in the
retaliation context.
(D. Mass. 2016).
proximity,

the

Mattei v. Dunbar, 217 F. Supp. 3d 367, 377

For a plaintiff to rely solely on temporal

time

between

the

protected

activity

retaliatory action must be “unusually suggestive.”
Rozum, 834 F.3d 417, 424 (3d Cir. 2016).

and

the

Watson v.

Here, Lussier and Petit’s

meeting at the State Police barracks occurred approximately two
weeks after Boudreau completed service in the 2013 Lawsuit, which
falls well within the range of “unusually suggestive” timing.

See

Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) (holding that a
six-week period between the protected conduct and retaliatory
conduct was sufficient); Mattei, 217 F. Supp. 3d at 377-78 (ruling
that plaintiff could establish a prima facie retaliation claim
when the two events occurred within a month).

30

In his Motion to Dismiss, Petit contends that Boudreau’s claim
fails because Petit relied upon Lussier’s statement to him.

City

Defs.’ Mem. Law Supp. Mot. Dismiss 5, ECF No. 59-1 (“City Defs.’
Mem.”).

Petit states that Lussier’s statement provided sufficient

evidence

to

make

a

probable

cause

determination.

Id.

Consequently, Petit properly initiated the investigation against
Boudreau based on a finding of probable cause, rather than to
retaliate against Boudreau for filing the 2013 Lawsuit.

See

Powell, 391 F.3d at 17; see also Nieves v. Bartlett, 139 S. Ct.
1715, 1726 (2019) (“The presence of probable cause should generally
defeat a First Amendment retaliatory arrest claim.”).
The Court disagrees with Petit’s rationale at the pleadings
stage.

Although Petit could rely on a victim’s statements when

making a probable cause determination, State Defs.’ Mem. 11 (citing
Acosta,

386

F.3d

at

10),

such

an

argument

does

not

address

Boudreau’s theory that Petit conspired with Lussier to fabricate
evidence and probable cause.
supporting

a

plausible

Indeed, the Complaint provides facts

inference

that

Petit

and

Lussier

collaborated to create a false statement, including that Petit had
a motive to retaliate based on Boudreau’s filing of the 2013
Lawsuit against him and Lussier, that he met with Lussier within
two weeks of Boudreau’s filing of the 2013 Lawsuit, that he had
previously investigated Boudreau for child pornography, and that
he was investigating Boudreau for a crime not involving child
31

pornography in a neighboring city.10

See Little Kids, Inc. v. 18th

Ave. Toys, Ltd., No. CV 18-533WES, 2020 WL 7264267, at *13 (D.R.I.
Dec.

10,

2020)

(“Because

‘[c]onspiracies

are

normally

kept

secret,’ a complaint that is built on circumstantial factual
allegations may be viable as long as it is plausible.” (quoting
Danielson v. Huether, 355 F. Supp. 3d 849, 869 (D.S.D. 2018))).
Accordingly, the Court denies City Defendants’ Motion as to
Count I.
2. Conspiracy to Retaliate Against Plaintiff for Filing
a Lawsuit in Violation of 42 U.S.C. §§ 1983 and 1985
Against Petit (Count II)
Boudreau’s claim against Petit pursuant to § 1985 fails for
the same reasons as his Failure to Intervene claim against Rivello
and Brown.

See Compl. ¶¶ 308-26.

The First Circuit requires

allegations of class-based animus as the motivation for a § 1985
claim.

Knowlton, 704 F.3d at 12.

Boudreau does not provide any

allegations to support that element, and therefore, the Court
grants City Defendants’ Motion on Count II.
3. Abuse of Process Claim Against Petit (Count III)
Under Rhode Island law, abuse of process occurs “when a legal
proceeding,

although

set

in

motion

in

proper

form,

becomes

Conversely, there are no factual allegations to support
such an inference against State Defendants. See generally Compl.
In contrast to Petit, who had previously investigated Boudreau and
had been named as an adverse party in Boudreau’s 2013 Lawsuit,
State Defendants had no connection to Boudreau prior to the
embezzlement investigation.
10

32

perverted to accomplish an ulterior or wrongful purpose for which
it was not designed.”

Hillside Assocs. v. Stravato, 642 A.2d 664,

667 (R.I. 1994) (citing Brough v. Foley, 572 A.2d 63, 67-68 (R.I.
1990)).

A party establishes such a claim by demonstrating that:

“(1) the defendant instituted proceedings or process against the
plaintiff and (2) the defendant used these proceedings for an
ulterior or wrongful purpose that the proceedings were not designed
to accomplish.”

Butera v. Boucher, 798 A.2d 340, 353 (R.I. 2002)

(citing Nagy v. McBurney, 392 A.3d 365, 370 (R.I. 1978)).

In

defining wrongful purpose, Rhode Island courts require a showing
of “a collateral advantage . . . , such as the surrender of property
or the payment of money, by the use of the process as a threat or
a club.”

Id. (quoting W. Page Keeton, et al., Prosser & Keeton on

the Law of Torts § 121 (5th ed. 1984)).

Notably, “a pure spite

motive is not sufficient where process is used only to accomplish
the result for which it was created.”

Fiorenzano v. Lima, 982

A.2d 585, 590 (R.I. 2009) (quoting Butera, 798 A.2d at 354).
Boudreau asserts a claim for abuse of process against Petit
on the grounds that Petit initiated the legal process to retaliate
against Boudreau for filing of the 2013 Lawsuit.
33.

Compl. ¶¶ 330-

However, absent from Boudreau’s complaint are any allegations

that Petit initiated the legal process to gain a collateral
advantage.

See id. ¶¶ 327-37.

Boudreau merely asserts that

Petit’s “motive was to retaliate against the Plaintiff for the
33

Plaintiff filing a lawsuit against the Defendants.”

Id. ¶ 331.

Such a pure spite motive is insufficient to establish an abuse of
process

claim.

See

Fiorenzano,

982

A.2d

at

590

(upholding

dismissal of abuse of process claim because the plaintiff did not
provide any evidence supporting an attempt by the defendant to
gain a collateral advantage).
Accordingly, the Court grants City Defendants’ Motion as to
Count III.
4. Deliberate Fabrication
Petit (Count IV)
Boudreau’s

claim

for

of

“deliberate

False

Evidence

fabrication

Against

of

evidence” largely mirrors his retaliation claim in Count I.

false
The

Complaint asserts that Lussier and Petit sought to retaliate
against Boudreau for filing the 2013 Lawsuit using false statements
and misleading evidence. Compl. ¶¶ 338-64. Specifically, Boudreau
alleges

that

Lussier

and

Petit

“fabricate[d]

false

evidence

against the Plaintiff by producing payroll reports of legitimate
pay and falsely claiming that such pay was not authorized.”
¶ 340.

Id.

He also states that Lussier did not provide payroll records

concerning bonuses of other ATC employees, which would demonstrate
that Boudreau had not acted improperly.

See id. ¶ 351.

To establish a fabrication of evidence claim, a party must
allege that the defendants knew the evidence was fabricated, as
well as “that the fabricated evidence was so significant that it

34

could have affected the outcome of the criminal case.”

Ricci,

2023 WL 4686025, at *9 (quoting Black v. Montgomery Cnty., 835
F.3d 358, 369 (3d Cir. 2016)) (citations omitted)).

In applying

that principle, this Court has recognized that false affidavits in
support of a search warrant constitute significant evidence that
could affect the outcome of the criminal case.

Id.

Here, Boudreau’s allegations clear the hurdle of stating a
claim.

The statements and evidence that Lussier provided to Petit

– and later to Rivello and Brown - constitute significant evidence,
as they were the basis for the proceeding search warrant.

See id.

(holding that a fabricated affidavit was significant because it
“was

critical

searches”).

to

the

Further,

issuance
as

of

a

warrant

previously

justifying

discussed,

the

Boudreau’s

allegations create a plausible inference that Petit knew that
Lussier’s statements were false.
City Defendants’ Motion is therefore denied as to Count IV.
5. Obstruction of Justice as to Petit (Count VII)
The Complaint includes a claim for obstruction of justice
against Petit on the grounds that he and the Lussiers fabricated
evidence.

See

Compl.

¶¶

399-414.

However,

Boudreau cannot

maintain such a claim because obstruction of justice is a criminal
matter that does not include a private cause of action.

See, e.g.,

McNeil v. Bristol Cnty. Probate, No. CV 16-11712-FDS, 2017 WL
275601, at *2 (D. Mass. Jan. 20, 2017) (dismissing an obstruction
35

of justice claim because private citizens do not have the authority
“to seek other relief based on alleged violations of criminal
statutes” (citation omitted)); Garay v. U.S. Bancorp., 303 F. Supp.
2d 299, 303 (E.D.N.Y. 2004) (“Because obstruction of justice is a
criminal matter, there is no private cause of action.”).
Accordingly, the Court grants City Defendants’ Motion as it
relates to Count VII.
6. Denial of Right to a Fair Trial Against Petit and the
Warwick Police Department (Count VIII)
Boudreau asserts a denial of his right to a fair trial claim
against Petit and the Warwick Police Department based on Petit’s
purported attempt to frame Boudreau for embezzlement.
415-24.

Compl. ¶¶

As discussed in relation to State Defendants’ Motion to

Dismiss, a party seeking redress for such a claim must allege that
“an (1) investigating official (2) fabricates evidence (3) that is
likely

to

information

influence
to

a

jury’s

prosecutors,

and

decision,
(5)

deprivation of liberty as a result.”

the

(4)

forwards

plaintiff

that

suffers

a

Soomro, 174 F. Supp. 3d at

815 (quoting Jovanovic, 486 F. App’x at 152).
In their Motion, City Defendants aver that the existence of
probable cause precludes Boudreau from asserting such a claim.
Nonetheless, City Defendants’ probable cause argument fails for
the reasons articulated in Section III.B.1 above.

Furthermore, it

is well established that probable cause is not a defense to a

36

denial of fair trial claim.11

See Morse v. Spitzer, No. 07-CV-

4793 CBA RML, 2012 WL 3202963, at *5 (E.D.N.Y. Aug. 3, 2012).
Therefore, the Court denies City Defendants’ Motion on Count
VIII.
7. Retaliatory Inducement to Prosecute for Exercise of
First Amendment Against Petit12 (Count IX)
Boudreau’s claim for inducement to prosecute relies on the
same facts as his claims for retaliation and denial of a fair
trial.

See Compl. ¶¶ 399-414.

Petit moves to dismiss the claim

on the grounds that Petit properly determined the existence of
probable cause based on Lussier’s statements to Petit.

However,

State Defendants contend that Boudreau cannot maintain a
right to fair trial claim because a trial never occurred. State
Defs.’ Mem. 14-15. In support, State Defendants rely on the Tenth
Circuit’s holding that the right to a fair trial is not implicated
when the charges are dropped prior to trial. Id. (citing Morgan
v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)).
Nonetheless,
such a view is not universal, as some courts merely require a
plaintiff to sustain a deprivation of liberty. See, e.g., Frost
v. N.Y. City Police Dep’t, 980 F.3d 231, 249 (2d Cir. 2020)
(“Indeed, a criminal defendant can bring a fair trial claim even
when no trial occurs at all.”); Falls v. (Police Officer) Detective
Michael Pitt, No. 16-CV-8863 (KMK), 2021 WL 1164185, at *38
(S.D.N.Y. Mar. 26, 2021) (“In a fair trial claim such as the one
he has raised, the relevant injury is a plaintiff’s deprivation of
liberty.”). Because City Defendants did not brief the issue and
Boudreau is pro se, the Court will not dismiss the claim for the
time being. As described later, infra n.18, the Court is ordering
Boudreau to file an amended complaint. Therefore, Boudreau may
identify in his amended complaint what deprivation of liberty he
may have suffered, if any, and then City Defendants may address
the issue at the summary judgment stage.
11

The Complaint does not allege which Defendants are included
in Count IX. However, Boudreau states in his brief that the claim
only pertains to Petit. Resp. 12.
12

37

for the reasons previously stated, the Court finds that the
probable cause argument does not warrant dismissal at this stage
for the claims involving Petit.
Accordingly, the Court denies City Defendants’ motion as to
Count IX.
8. Retaliatory Prosecution Against Petit (Count X)
Under Rhode Island law, malicious prosecution involves “a
suit

for

damages

resulting

from

a

prior

criminal

or

civil

proceeding that was instituted maliciously and without probable
cause,

and

therein.”

that

terminated

unsuccessfully

for

the

plaintiff

Horton v. Portsmouth Police Dept., 22 A.3d 1115, 1121

(R.I. 2011) (quoting Palazzo v. Alves, 944 A.2d 144, 152 (R.I.
2008)).

To establish such a claim, a plaintiff must prove four

elements:

“(1)

the

defendants

initiated

a

prior

criminal

proceeding against him; (2) there was a lack of probable cause to
initiate such a proceeding; (3) the prior proceeding was instituted
maliciously; and (4) the proceeding terminated in the plaintiff’s
favor.”

Ousley v. Town of Lincoln, 313 F. Supp. 2d 78, 87 (D.R.I.

2014) (citing Solitro v. Moffatt, 523 A.2d 858, 861-62 (R.I.
1987)).
Boudreau states a claim for malicious prosecution against
Petit.

First, Petit initiated the prior criminal proceeding

against Boudreau by taking Lussier’s statement and providing it to
Rivello and Brown.

See Limone v. United States, 579 F.3d 79, 89
38

(1st Cir. 2009) (“If an individual induces another person (say, a
police officer or prosecutor) to lodge formal criminal charges, he
may be held to have instituted criminal proceedings.”).

Second,

as previously discussed, the Complaint’s allegations create a
plausible inference that Petit and Lussier conspired to fabricate
a false statement to establish probable cause that otherwise did
not

exist.

Third,

it

is

plausible

that

Petit

maliciously

instituted the proceeding in retaliation for Boudreau’s filing of
the 2013 Lawsuit.

See Nagy, 392 A.2d at 367 (defining malice as

the defendant “was actuated by a primary motive of ill will or
hostility” (citations omitted)).

Lastly, the State ultimately

dropped the embezzlement charges against Boudreau.

Dismissal

Under R.I. Cr. R. 48(a), ECF No. 49-1.
Accordingly, the Court denies City Defendants’ Motion to
Dismiss as to Count X.
9. Defamation and Libel Against Petit (Counts XI and XII)
The Complaint presents defamation and libel claims against
Petit on largely the same grounds as his companion claims against
State Defendants.

In particular, Boudreau alleges that Petit

knowingly provided defamatory statements concerning Boudreau to
Rivello and Brown to initiate criminal proceedings in retaliation
for the 2013 Lawsuit.13

Compl. ¶¶ 447-61.

Aside from their probable cause argument, City Defendants
do not contest whether Boudreau sufficiently stated the elements
13

39

Although a qualified privilege precludes defamation and libel
claims against State Defendants, the same cannot be said for
Petit.14

As previously noted, a plaintiff may defeat a qualified

privilege by demonstrating that the “primary motivating force for
the communication was the publisher’s ill will or spite.” Swanson,
293 A.2d at 309 (quoting Ponticelli, 247 A.2d at 308).

Here, the

allegations plausibly establish that Petit sought to retaliate
against Boudreau for his filing of the 2013 Lawsuit.
¶ 426.

See Compl.

Thus, in light of Petit’s purported motivation, he does

not receive the protections of a qualified privilege, at least at
the motion to dismiss stage.

See Fosu, 590 F. Supp. 3d at 462.

Accordingly, the Court denies City Defendants’ Motion as to
Count XI.15
10. Concealment of Evidence Under 42 U.S.C. § 1983 Against
Petit (Count XIII)
Boudreau asserts that Petit is liable under

§

1983 for

knowingly concealing exculpatory evidence, such as payroll and

of a defamation claim.
such an analysis.

Therefore, the Court will refrain from

Counsel for Petit did not brief this issue. City Defs.’
Mem. 5. Nonetheless, because the Court dismissed the defamation
claim against State Defendants on those grounds, it will also
examine whether a qualified privilege precludes such claims
against City Defendants.
14

For the same reasons as set forth in Section III.A.8 above,
the Court dismisses Count XII for libel per se as it relates to
Petit.
15

40

bonus reports, job cost reports, general ledger reports, and
monthly financial statements.

Compl. ¶¶ 465-80.

Petit moves to

dismiss the claim on the grounds that probable cause existed based
on Lussier’s statements to Petit.

However, for the reasons

previously stated in Section III.B.1, the Court finds that the
probable cause argument does not warrant dismissal at this stage
for the claims involving Petit.
Accordingly, the Court denies City Defendants’ Motion as to
Count XIII.16
11. Negligent and Intentional Infliction of Emotional
Distress Against Petit (Counts XVIII and XIX)
Boudreau fails to state claims for negligent infliction of
emotional distress or intentional infliction of emotional distress
against Petit.
of

those

As discussed in relation to State Defendants, both

torts

require

the

plaintiff

to

suffer

physical

symptomatology from the negligent or intentional act at issue.
Vallinoto, 688 A.2d at 838.

Here, Boudreau does not allege that

he suffered physical manifestations from Petit’s conduct, and
therefore, the Court must dismiss those claims.

See Lisnoff, 925

The Court notes that it is unclear whether Petit knew of
or had access to the referenced documents. See generally Compl.
Nonetheless, because Boudreau is pro se and City Defendants failed
to raise this issue in his briefing, the Court declines to address
it.
See iRobot Corp. v. SharkNinja Operating LLC, No. 19-CV12125-ADB, 2019 WL 7578466, at *7 n.5 (D. Mass. Nov. 26, 2019)
(stating that the court would not address issues not raised in the
motion at issue).
16

41

F. Supp. 2d at 242 (dismissing intentional infliction of emotional
distress claim due to the absence of physical symptomatology
allegations).
Accordingly, the Court grants City Defendants’ Motion as to
Counts XVIII and XIX.
12. Negligent Employment and Failure to Properly Train
and Supervise Under 42 U.S.C. § 1983 Against the
Warwick Police Department and City of Warwick
(Counts XX and XXI)
Lastly, Boudreau asserts that the Warwick Police Department
and City of Warwick are liable for negligent employment practices
and failure to properly train.

Compl. ¶¶ 512-19.

Unlike the state

and its agencies, municipalities and their entities are subject to
§ 1983 claims when their “employees were acting pursuant to an
official policy or custom of the municipality when they inflicted
the alleged injury.”

Raymond v. City of Worcester, 142 F. Supp.

2d 145, 148 (D. Mass. 2001) (citing Monell v. Dep’t of Social
Servs., 436 U.S. 658, 691 (1978)).

Consequently, Boudreau may

assert claims for negligent employment or inadequate training
against the Warwick Police Department and City of Warwick under §
1983.17

See City of Canton v. Harris, 489 U.S. 378, 388 (1989)

Although City Defendants do not address those claims in
their brief, the Court looks to State Defendants’ arguments
concerning the validity of such claims. See State Def.s’ Mem. 23.
Moreover, neither State Defendants nor City Defendants contest
whether Boudreau sufficiently states the elements of such claims;
therefore, the Court refrains from addressing that issue.
17

42

(“[A] city can be liable under § 1983 for inadequate training of
its employees. . . .”); Hayden v. Grayson, 134 F.3d 449, 456 (1st
Cir. 1998) (“[O]f course, the Town could be held liable under
section 1983 were it to appear that the injury to plaintiffs was
caused by the Town’s failure to train [the defendant].” (emphasis
omitted)).
Accordingly, the Court denies City Defendants’ Motion on
Counts XX and XXI.
IV. CONCLUSION
For

the

foregoing

reasons,

Dismiss, ECF No. 58, is GRANTED.

State

Defendants’

Motion

to

City Defendants’ Motion to

Dismiss, ECF No. 59, is GRANTED IN PART and DENIED IN PART.

City

Defendants’ Motion is GRANTED with respect to Counts II, III, VII,
XVIII, and XIX.

With respect to the surviving counts, Plaintiff

is ORDERED to file an amended complaint within 30 days of the
issuance of this opinion that complies with Rule 8’s mandate that
the plaintiff present his legal claims in “a short and plain
statement.”18

City Defendants contend that the Court should dismiss
Boudreau’s Complaint for failing to comply with Rule 8’s “short
and plain statement” requirement. City Defs.’ Mem. 2-4. Although
Boudreau established viable claims against City Defendants, his
Complaint does not conform with Rule 8.
See generally Compl.
18

43

IT IS SO ORDERED.

William E. Smith
District Judge
Date: February 16, 2024

Nonetheless, the Court finds that “dismissal is too harsh a
sanction at this juncture,” particularly when Boudreau states
several viable claims. Nwaubani v. Grossman, No. CV 13-12552-JLT,
2014 WL 12914528, at *6 (D. Mass. Feb. 28, 2014); see Kuehl v.
FDIC, 8 F.3d 905, 908 (1st Cir. 1993) (noting that “courts should
be reluctant to impose a dismissal with prejudice for a rules
violation that is neither persistent nor vexatious, particularly
without some review of the merits”); Guilbeault v. R.J. Reynolds
Tobacco Co., No. CIV. A. 98-035L, 1998 WL 919117, at *1 n.1 (D.R.I.
July 24, 1998) (stating that courts should only strike pleadings
“where there is a gross violation of Rule 8” (quoting Newman v.
Massachusetts, 115 F.R.D. 341, 343-44 (D. Mass. 1987)). Therefore,
the Court orders Boudreau to file an amended complaint for his
remaining claims that comports with Rule 8’s “short and plain
statement” requirement.
44