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Case 1:14-cv-13749-NMG Document 56 Filed 09/01/15 Page 1 of 62
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`
`
`
`
`HAROLD KOLTIN,
`
`Plaintiff,
` v. CIVIL ACTION NO.
` 14-13749-NMG
`
`CITY OF FALL RIVER, FALL RIVER
`POLICE DEPARTMENT, WILLIAM
`FLANAGAN, DANIEL RACINE, JOHN
`DEMELLO, RICHARD SARAIVA, JAMES
`COSTA, WENDELL BURKE, WARREN
`FRANCIS, ALAN CORREIRO, KEVIN
`DOLAN, JEFFREY RICHARD, GREGORY
`BELL, ROGER DUFOUR, JOSEPH BISZKO,
`FALL RIVER FIRE DEPARTMENT, BRISTOL
`ELDER SERVICES, INC., NANCY MUNSON,
`LISA KUROWSKI, NICOLE CHENEY,
`PHILLIP VIERA, JOANN GETTINGS and
`BRIAN GETTINGS,
`Defendants.
`
`
`REPORT AND RECOMMENDATION RE:
`DEFENDANTS’ MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
`(DOCKET ENTRIES ## 12, 15 & 20)
`
`September 1, 2015
`
`BOWLER, U.S.M.J.
`
`Three motions to dismiss are pending before this court.
`First, there is a motion to dismiss filed by defendants the City
`of Fall River (“City”), Fall River Police Department (“FRPD”),
`William Flanagan (“Flanagan”), John DeMello (“DeMello”), Richard
`Saraiva (“Saraiva”), James Costa (“Costa”), Wendell Burke
`(“Burke”), Warren Francis (“Francis”), Alan Correiro
`(“Correiro”), Kevin Dolan (“Dolan”), Jeffrey Richard
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`(“Richard”), Gregory Bell (“Bell”), Roger Dufour (“Dufour”),
`Joseph Biszko (“Biszko”) and the Fall River Fire Department
`(“FRFD”) (collectively “defendants”). (Docket Entry # 12).
`Second, there is a motion to dismiss filed by defendants Bristol
`Elder Services, Inc. (“BES”), Nancy Munson (“Munson”), Lisa
`Kurowski (“Kurowski”) and Nicole Cheney (“Cheney”) (collectively
`“BES defendants”). (Docket Entry # 15). Finally, there is a
`motion to dismiss filed by defendants Brian Gettings (“Brian
`Gettings”) and Joann Gettings (“Joann Gettings”) (collectively
`“the Gettings”). (Docket Entry # 20).
`PROCEDURAL BACKGROUND
`In September 2014, plaintiff Harold Koltin (“plaintiff”)
`filed a complaint on behalf of his mother, Edith Koltin (“Edith
`Koltin”), “in his capacity as Personal Representative” of her
`estate. (Docket Entry # 1). The complaint sets out 18 counts
`against 23 defendants. (Docket Entry # 1). Subsequently,
`plaintiff voluntarily dismissed all counts asserted against
`defendant Daniel Racine. (Docket Entry # 46). The remaining
`counts are as follows: (1) Count I for violations of 42 U.S.C.
`1983 (“section 1983”); (2) Count II for violations of the
`Massachusetts Civil Rights Act, Massachusetts General Laws
`chapter 12, sections 11H and 11I (“MCRA”); (3) Count III for
`violations of the Fourth Amendment by warrantless forced entry;
`(4) Count IV for violations of the Fourth Amendment by
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`warrantless search and seizure; (5) Count V for wanton
`destruction of property; (6) Count VI for conversion; (7) Count
`VII for use of excessive force against a person over 60 years of
`age; (8) Count VIII for willful and unreasonable conduct in
`violation of constitutional rights; (9) Count IX for failure to
`intervene; (10) Count X for trespass; (11) Count XI for lack of
`proper supervision; (12) Count XII for attempted forced entry;
`(13) Count XIII for slander; (14) Count XIV for libel; (15)
`Count XV for defamation; (16) Count XVI for invasion of privacy;
`(17) Count XVII for actions exceeding reasonable bounds,
`infringing on plaintiff’s constitutional rights and producing
`serious injury and hastening and precipitating death; and (18)
`Count XVIII for civil perjury.
`Plaintiff, represented by counsel, filed an opposition but
`only addresses the section 1983 claim. (Docket Entry # 51). In
`no uncertain terms, the opposition reads as follows:
`The plaintiff has filed an eighteen-count complaint against
`the named defendants. Counts 1 and 2 of the complaint
`allege a civil rights violation pursuant to 42 U.S.C. §
`1983. The remaining counts allege specific conduct falling
`with the purview of § 1983.
`
`(Docket Entry # 51). The opposition concludes with the
`statement that the allegations “amply support a finding that all
`defendants violated Section 1983” and that “[d]ismissal is
`therefore not appropriate.” (Docket Entry # 51). Accordingly,
`plaintiff waived any basis for opposing the arguments that do
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`not address a section 1983 claim made by defendants, the BES
`defendants and the Gettings in their motions to dismiss. See
`Vallejo v. Santini-Padilla, 607 F.3d 1, 7 and n.4 (1st Cir. 2010)
`(“[p]laintiffs have not cited a single authority in support of
`their assertion that their failure to timely oppose the motion
`to dismiss did not constitute waiver” and noting that
`“[p]laintiffs did not properly raise their arguments below”);
`see also Coons v. Industrial Knife Co., Inc., 620 F.3d 38, 44
`(1st Cir. 2010) (“district court was ‘free to disregard’ the
`state law argument that was not developed in Coons’s brief”).
`STANDARD OF REVIEW
`Defendants each move to dismiss the complaint under
`Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). To survive a Rule
`12(b)(6) motion to dismiss, the complaint must include factual
`allegations that when taken as true demonstrate a plausible
`claim to relief even if actual proof of the facts is improbable.
`Bell Atlantic v. Twombly, 550 U.S. 544, 555-58 (2007). Thus,
`while “not equivalent to a probability requirement, the
`plausibility standard asks for more than a sheer possibility
`that a defendant has acted unlawfully.” Boroian v. Mueller, 616
`F.3d 60, 65 (1st Cir. 2010) (internal quotation marks ommited).
`“[W]here the well-pleaded facts do not permit the court to infer
`more than the mere possibility of misconduct, the complaint . .
`. has not show[n] that the pleader is entitled to relief.”
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`Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1st
`Cir. 2011) (internal quotation marks and citations omitted).
`Taking the facts in the governing complaint as “true and
`read in a plaintiff’s favor” even if seemingly incredible, the
`complaint “must state a plausible, not a merely conceivable,
`case for relief.” Sepulveda-Villarini v. Dep’t of Educ. of
`Puerto Rico, 628 F.3d 25, 29-30 (1st Cir. 2010). “[A]ccepting .
`. . all well-pleaded facts in the complaint and making all
`reasonable inferences in the plaintiff’s favor,” Boroian v.
`Mueller, 616 F.3d at 64, the “factual allegations ‘must be
`enough to raise a right to relief above the speculative level.’”
`Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010). Drawing
`reasonable inferences in plaintiff’s favor but eschewing
`reliance on “‘bald assertions, . . . unsubstantiated
`conclusions,’” Fantini v. Salem State College, 557 F.3d 22, 26
`(1st Cir. 2009), and legal conclusions, see Dixon v. Shamrock
`Financial Corp., 522 F.3d 76, 79 (1st Cir. 2008) (rejecting
`unsupported conclusions or interpretations of law in reviewing
`Rule 12(b)(6) dismissal), the complaint sets out the following
`facts.
`
`FACTUAL BACKGROUND
`On October 3, 2011, based on a “prank swatter” call by
`
`“Joann Gettings in collaboration with her husband,” Brian
`Gettings, Kurowski, a BES supervisor, and Cheney, a BES
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`protective services worker, showed up unannounced and without
`identification at the home of Edith Koltin, an 89 year old blind
`woman. (Docket Entry # 1). The Gettings were “adjacent
`neighbors” to Edith Koltin. (Docket Entry # 1). Saraiva and
`Costa, two Fall River police officers, next arrived and “began
`banging on the door and shouting.” (Docket Entry # 1).
`Subsequently, the FRFD showed up and “per order of the police,”
`namely, FRPD Lieutenant DeMello, “broke windows and gained
`access into the house without a warrant.” (Docket Entry # 1).
`
`The allegations made by the Gettings were false because
`Edith Koltin’s son and full-time caretaker, Theodore Koltin, had
`not abandoned his mother. There was food in the refrigerator,
`the gas stove worked and the Gettings had seen Edith Koltin and
`“her son in the backyard daily for the past several months.”
`(Docket Entry # 1). Edith Koltin did not show signs of
`dementia. (Docket Entry # 1). Saraiva and Costa, however,
`attempted to involuntarily commit Edith Koltin to a facility for
`the treatment of mentally ill persons under Massachusetts
`General Laws chapter 123, section 12.1 (Docket Entry # 1). In
`fact, they tied “her to a chair as she screamed to leave her
`alone.” (Docket Entry # 1). She was then taken, still “tied to
`
`
`1 The complaint summarily refers to Saraiva and Costa’s attempt
`to “section 12” Edith Koltin even though she did not exhibit
`signs of dementia. (Docket Entry # 1, pp. 3-4).
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`the chair, to the hospital.” Saraiva and Costa then “trashed”
`the house. (Docket Entry # 1).
`Meanwhile, Edith Koltin’s son, Theodore Koltin, was
`arrested and “brutally beaten while in handcuffs.” (Docket
`Entry # 1). He was then “imprisoned in a cell at the police
`station” overnight. (Docket Entry # 1). The following morning,
`“the Court” arraigned him and released him on his own
`recognizance. (Docket Entry # 1). Within hours of returning
`home, defendant Phillip Viera (“Viera”), a contractor hired by
`the City, showed up and started banging on the doors of the
`home. (Docket Entry # 1). Viera then went to the Gettings’
`home and telephoned the police. (Docket Entry # 1). Shortly
`thereafter, FRPD officers Burke, Francis, Correiro, Dolan and
`FRPD sergeants Richard and Bell arrived along with the City’s
`Minimum Housing Director, Dufour, and the City’s Director of
`Inspectional Services, Biszko. (Docket Entry # 1).
`Burke and Francis proceeded to break down the front door
`and gain access to the home without a warrant. (Docket Entry #
`1). They told Theodore Koltin they thought “he was demented,”
`and then “leg-swept him onto the floor,” handcuffed him, “and
`dragged him into the kitchen, where he was raised to the ceiling
`and slam-dropped onto the floor.” (Docket Entry # 1). While on
`the floor, Burke tased Theodore Koltin six times. (Docket Entry
`# 1). The police then “destroyed” the home which, drawing
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`reasonable inferences, necessarily encompassed Edith Koltin’s
`personal items and furniture. (Docket Entry # 1). Thereafter,
`“Biszko and Dufour declared the house unfit for human
`habitation.” (Docket Entry # 1). They listed “the code
`violations as ‘debris’” and “overgrown shrubbery.” (Docket
`Entry # 1). Additionally, Biszko demanded that the violations
`be remedied immediately, but he would not let any family members
`back on the property. (Docket Entry # 1).
`Theodore Koltin was taken to the hospital. (Docket Entry #
`1). The hospital, however, “refused” to involuntarily commit
`him, stating there was nothing wrong with him. (Docket Entry #
`1). Burke and Francis told the hospital staff that if they ever
`found Theodore Koltin on the property again “the same thing will
`happen.” (Docket Entry # 1). Theodore Koltin “was diagnosed
`with cardiac problems,” emotional trauma, massive hematomas and
`“sudden and sustained extremely elevated blood pressure.”
`(Docket Entry # 1). Edith Koltin’s “personal effects were
`stolen, destroyed, or otherwise rendered useless and scattered
`about the house.” (Docket Entry # 1). She died on December 3,
`2011, homeless after the events of October 3, 2011. (Docket
`Entry # 1). The house experienced “massive flooding and is now
`suspected by the City to be infested with toxic mold.” (Docket
`Entry # 1).
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`Flanagan and the City have not responded to a chapter “258
`Tort Claims Act letter” and BES and Munson have not responded to
`a chapter “93A letter.” (Docket Entry # 1). “All criminal
`charges against Theodore” Koltin “were dismissed without [a]
`change of [a] ‘not guilty’ plea.” (Docket Entry # 1).
`DISCUSSION
`I. Defendants’ Motion (Docket Entry # 12)
`A. Flanagan, Correiro, Francis, Burke, Dolan, Richard,
`Bell, Dufour and Biszko in their Official and Individual
`Capacities
`
`As a preliminary matter, Flanagan, Correiro, Francis,
`Burke, Dolan, Richard, Bell, Dufour and Biszko contend that
`plaintiff failed to show they were involved in or had knowledge
`of the events pertaining to Edith Koltin. (Docket Entry # 13,
`p. 5). In addition, they submit that plaintiff only alleges
`claims against them regarding Theodore Koltin’s arrest. (Docket
`Entry # 13, p. 5). Accordingly, these defendants argue that
`plaintiff has no standing to bring the claims for the alleged
`mistreatment of Theodore Koltin and, thus, all claims against
`them should be dismissed. (Docket Entry # 13, p. 5).
`Additionally, Dufour and Biszko argue that the only facts
`pertaining to them in the complaint are that they were present
`when the police showed up at the home on October 4, 2011, and
`they later declared the house unfit for human habitation.
`(Docket Entry # 1, p. 4). Dufour and Biszko argue that these
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`allegations have nothing to do with Edith Koltin and therefore
`plaintiff has no standing to assert any of the claims against
`them. (Docket Entry # 13, p. 14).
`The constitutional limit of standing in Article III
`requires that the plaintiff “suffered or be imminently
`threatened with a concrete and particularized ‘injury in fact’
`that is fairly traceable to” the defendant and “likely to be
`redressed by a favorable judicial decision.” Lexmark Int’l.,
`Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386
`(2014). Plaintiff, as the party invoking federal jurisdiction,
`bears the burden to establish standing. Blum v. Holder, 744
`F.3d 790, 795 (1st Cir.) (“‘party invoking federal jurisdiction
`bears the burden of establishing’ standing’”), cert. denied Blum
`v. Holder, 135 S.Ct. 477 (2014). Constitutional standing is
`generally referred to as a three part “triad: injury, causation,
`and redressability.” Wilson v. HSBC Mortg. Services, Inc., 744
`F.3d 1, 8 (1st Cir. 2014). Injury in fact is one “[that is]
`‘concrete, particularized, and actual or imminent; fairly
`traceable to the challenged action; and redressable by a
`favorable ruling.’” Blum v. Holder, 744 F.3d at 796.
`Additionally, standing has “a prudential component,” which “has
`various aspects, including a requirement that a party ‘assert
`his own legal rights and interests,’ not those of third
`parties.” Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 637
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`(1st Cir. 2013) (quoting Warth v. Seldin, 422 U.S. 490, 499
`(1975)).
`
`The complaint sets out an incident that took place on
`October 3, 2011, involving injuries to Edith Koltin. (Docket
`Entry # 1). DeMello entered the house without a warrant and
`Saraiva and Costa tied her to a chair and she was taken to a
`hospital. (Docket Entry # 1). With respect to the incident on
`October 4, 2011, however, there is no indication that Edith
`Koltin was in the home at the time. She nevertheless owned the
`home which “was again destroyed.” (Docket Entry # 1).
`Accordingly, the question is whether destroying Edith Koltin’s
`home, including her furniture and personal effects, on October
`4, 2011, is a redressable injury in fact, which would give
`plaintiff, as representative of his mother’s estate, standing to
`seek relief against the defendants who were involved in the
`October 4, 2011 incident.
`“At the pleading stage, general factual allegations of
`injury resulting from the defendant’s conduct may suffice, for
`on a motion to dismiss we ‘presum[e] that general allegations
`embrace those specific facts that are necessary to support the
`claim.’” Lujan v. Defendants of Wildlife, 504 U.S. 555, 561
`(1992) (quoting Lujan v. National Wildlife Federation, 497 U.S.
`871, 889 (1990)). “In essence the question of standing is
`whether the litigant is entitled to have the court decide the
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`merits of the dispute or of particular issues.” Warth v.
`Seldin, 422 U.S. at 498. In evaluating the existence, or lack
`thereof, of an injury-in-fact for purposes of Article III
`standing, the Supreme Court has held that, “The actual or
`threatened injury required by Art. III may exist solely by
`virtue of ‘statutes creating legal rights, the invasion of which
`creates standing . . ..’” Id. at 500.
`In the case at bar, the injury arises by virtue of the
`constitutional, tort and negligence claims brought by plaintiff
`as representative of his mother’s estate. The injury in fact to
`Edith Koltin’s furniture and personal effects caused by the
`defendants who were present in the home on October 4, 2011,
`satisfies “the minimal threshold of showing an injury in fact
`for standing purposes.” Hosea v. Langley, 2006 WL 314454, at
`*20 (S.D.Ala. Feb. 8, 2006) (section 1983 complaint against
`police officers who stole, destroyed and burned plaintiff’s
`personal property sufficient to create standing). Flanagan,
`Correiro, Francis, Burke, Dolan, Richard, Bell, Dufour and
`Biszko are therefore not dismissed based on Article III standing
`because there is a redressable injury in fact to Edith Koltin on
`October 4, 2011, when her house was destroyed even though she
`was not present.
`B. Service on Dufour
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`Defendant Dufour seeks to dismiss all of the claims against
`him on the basis that plaintiff failed to effectuate service of
`process. (Docket Entry # 13, pp. 4-5). Rule 4(m) of the
`Federal Rules of Civil Procedure requires that service of a
`summons and complaint be made on a defendant within 120 days of
`filing the complaint. If service is not made within the 120 day
`period, the court “must dismiss the action without prejudice
`against that defendant.” Fed.R.Civ.P. 4(m). Defendant Dufour
`raised the issue of service in the motion to dismiss thereby
`avoiding a waiver under Fed.R.Civ.P. 12(h)(1). The docket fails
`to reflect a return of service of the complaint and summons on
`defendant Dufour. Where, as here, the defendant challenges
`service, the plaintiff has “the burden of proving proper
`service.” Rivera-Lopez v. Municipality of Dorado, 979 F.2d 885,
`887 (1st Cir. 1992). Plaintiff does not address the issue. A
`dismissal of defendant Dufour without prejudice is therefore
`appropriate.
`C. Section 1983 Violation (Count I)
`The City, FRPD and FRFD seek to dismiss Count I on the
`ground that plaintiff failed to identify any policy or custom
`required to establish municipal liability. (Docket Entry # 13,
`pp. 6-7). Additionally, DeMello, Saraiva, Costa, Burke,
`Francis, Correiro, Dolan, Richard and Bell (collectively
`“defendant officers”) as well as Flanagan, Biszko and Dufour
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`move to dismiss Count I in their official capacities because
`they cannot be sued in their official capacities under section
`1983. (Docket Entry # 13, pp. 5, 8). Finally, defendant
`officers seek to dismiss Count I in their official and
`individual capacities because they are protected under an
`“‘Emergency Aid’ exception.” (Docket Entry # 13, p. 6).
`Plaintiff opposes dismissal. (Docket Entry # 51).
`
`With respect to municipal liability, the City, FRPD and
`FRFD seek dismissal of the section 1983 claim because plaintiff
`failed to identify any policy or custom that contributed to the
`violation of constitutional rights and therefore fails to meet
`an essential element of the section 1983 claim. (Docket Entry #
`13, pp. 6-7). Municipal liability under section 1983 is neither
`vicarious nor based on respondeat superior. Monell v. Dep’t of
`Soc. Services of City of New York, 436 U.S. 658, 663 n.7 (1978);
`Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497, 503
`(1st Cir. 2012) (municipality cannot be sued under section 1983
`“on a respondeat superior theory”); Estate of Bennett v.
`Wainwright, 548 F.3d 155, 177 (1st Cir. 2008) (“municipal
`liability is not vicarious”). Section 1983 only imposes
`liability on local governments “for ‘their own illegal acts.’”
`Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (emphasis in
`original) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
`479 (1986)).
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`In order to impose section 1983 liability on the City,
`
`plaintiff must “identify a municipal ‘policy’ or ‘custom’ that
`caused the plaintiff’s injury.” Board of County Commissioners
`of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997);
`Connick v. Thompson, 131 S.Ct. at 1359 (plaintiffs “must prove
`that ‘action pursuant to official municipal policy’ caused their
`injury”); City of Canton, Ohio v. Harris, 489 U.S. 378, 385-87
`(1989) (plaintiff must establish a direct link between the
`municipal policy and the constitutional violation). “Such
`custom ‘must be so well settled and widespread that the
`policymaking officials of the municipality can be said to have
`either actual or constructive knowledge of it yet did nothing to
`end the practice.’” Estate of Bennett v. Wainwright, 548 F.3d
`at 177 (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st
`Cir. 1989)). A “policy” results from “the decisions of [the
`municipality’s] duly constituted legislative body or of those
`officials whose acts may fairly be said to be those of the
`municipality.” Board of County Commissioners of Bryan County,
`Okla. v. Brown, 520 U.S. at 403-04 (citing Monell v. Dep’t. of
`Soc. Services of City of New York, 436 U.S. at 694). An
`official policy thus “includes the decisions of a government’s
`lawmakers, the acts of its policymaking officials, and practices
`so persistent and widespread as to practically have the force of
`law.” Connick v. Thompson, 131 S.Ct at 1359.
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`Here, plaintiff does not identify any municipal policy or
`
`custom in the complaint. It is unclear exactly what facts in
`the complaint would provide a plausible basis of municipal
`liability and plaintiff does not attempt to clarify this in his
`opposition. (Docket Entry # 51). The complaint alleges no
`facts suggestive of a custom or policy of the City, FRFD or FRPD
`to engage in warrantless forced entries, destruction of property
`and/or false arrests.
`In addition to identifying a municipal policy or custom,
`the “policy or custom must have caused the depravation of the
`plaintiff’s constitutional rights and the municipality must have
`the requisite level of culpability: deliberate indifference to
`the particular constitutional right of the plaintiff.” Crete v.
`City of Lowell, 418 F.3d 54, 66 (1st Cir. 2005); see Young v.
`City of Providence ex rel. Napolitano, 404 F.3d 4, 26 (1st Cir.
`2005) (plaintiff must show that the City is responsible for the
`violation, a level of fault that “is generally labeled” as one
`of “‘deliberate indifference’”); see also Board of County
`Commissioners of Bryan County, Okla. v. Brown, 520 U.S. at 404
`(“plaintiff must show that the municipal action was taken with
`the requisite degree of culpability and must demonstrate a
`direct causal link”). In other words, “A municipality can be
`liable under § 1983 for failing to [train, supervise and
`discipline] . . . if that failure causes a constitutional
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`violation or injury and ‘amounts to deliberate indifference to
`the rights of persons with whom the [officers] come into
`contact.’” DiRico v. City of Quincy, 404 F.3d 464, 468-69 (1st
`Cir. 2005) (quoting City of Canton, Ohio v. Harris, 489 U.S. at
`388).
`In the case at bar, the complaint fails to identify any
`policy or custom of the City, FRFD or FRPD that with deliberate
`indifference underwrote the alleged violations of plaintiff’s
`rights. The facts do not state or reasonably infer a municipal
`policy or custom or the requisite causal link between that
`policy or custom and the constitutional violation. Finally,
`there is an absence of facts alleging or inferring deliberate
`indifference. Defendants’ arguments are therefore well taken
`and the section 1983 claims against the City, FRFD and FRPD
`should be dismissed.
`
`Defendant officers, Flanagan, Biszko and Dufour next argue
`that Count I should be dismissed because they cannot be sued in
`their official capacities under section 1983. (Docket Entry #
`13, pp. 5, 8). When an officer is sued in his or her official
`capacity it is essentially a suit against the government entity
`for which he or she works. See Kentucky v. Graham, 473 U.S.
`159, 166 (1985). Thus, “[i]t is not a suit against the official
`personally, for the real party in interest is the entity.” Id.
`(emphasis in original). In the case at bar, defendant officers,
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`Flanagan, Biszko and Dufour are correct that they cannot be sued
`in their official capacities under section 1983 because a suit
`against them in their official capacities is a suit against the
`City. Count I against defendant officers, Flanagan, Biszko and
`Dufour named in their official capacities is therefore subject
`to dismissal.
`Defendant officers additionally argue that they were acting
`upon information from BES indicating that Edith Koltin was
`neglected and therefore they did not need a warrant under the
`emergency aid exception to a section 1983 claim to enter the
`home. (Docket Entry # 13, p. 6). Accordingly, they seek a
`dismissal in both their individual and official capacities.
`(Docket Entry # 13, pp. 6-7).
`The emergency aid exception to the Fourth Amendment’s
`warrant requirement sets out that “law enforcement officers may
`enter a home without a warrant to render emergency assistance to
`an injured occupant or to protect an occupant from imminent
`injury.” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (internal
`quotation marks omitted). Courts examine the objective
`circumstances for which the police officers believe there is a
`person in a residence in need of immediate aid, rather than the
`“subjective intent or the seriousness of any crime they are
`investigating.” Michigan v. Fisher, 558 U.S. at 47 (citing
`Brigham City, Utah v. Stuart, 547 U.S. 398, 404-05 (2006)). In
`18
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`Case 1:14-cv-13749-NMG Document 56 Filed 09/01/15 Page 19 of 62
`
`the seminal emergency aid exception case, Brigham City, Utah v.
`Stuart, 547 U.S. 398 (2006), police officers responded to a
`noise complaint and heard an altercation occurring as they
`approached the house. Id. at 406. They then watched through a
`window as a juvenile broke free from the adults restraining him
`and punched another adult in the face. Id. “Under these
`circumstances, . . . it [was] ‘plainly reasonable’ for the
`officers to enter the house and quell the violence, for they had
`‘an objectively reasonable basis for believing both that the
`injured adult might need help and that the violence . . . was
`just beginning.’” Michigan v. Fisher, 558 U.S. at 48 (citing
`Brigham City, Utah v. Stuart, 547 U.S. at 406).
`“[T]he burden rests with the Commonwealth to demonstrate
`that a warrantless search, considering the totality of the
`circumstances, fits within the emergency aid exception to the
`warrant requirement.” Commonwealth v. Peters, 905 N.E.2d 1111,
`1116 (Mass. 2009). In the case at bar, taking the facts in the
`light most favorable to plaintiff, defendant officers simply
`argue that they were acting in response to the information from
`BES. The complaint, however, contains no facts to support the
`assertion that they were acting in response to information from
`BES.2 With the underlying burden of proof resting with defendant
`
`
`2 This court expresses no opinion as to whether such conduct, if
`true, would fall within the emergency aid exception.
`19
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`Case 1:14-cv-13749-NMG Document 56 Filed 09/01/15 Page 20 of 62
`
`officers and given the absence of facts in the complaint to
`demonstrate they fit within the exception, dismissal of the
`section 1983 claim under the emergency aid exception is not
`warranted.
`D. MCRA Claim (Count II)
`Defendants move to dismiss the City, FRFD and FRPD because
`neither a municipality nor its agencies is a “person” under the
`MCRA. (Docket Entry # 13, pp. 8-9). Defendant officers,
`Flanagan, Biszko and Dufour similarly argue that they are not
`“persons” under the MCRA and therefore cannot be held liable in
`their official capacities under the MCRA. (Docket Entry # 13,
`p. 9).
`
`Addressing the arguments seriatim, the MCRA provides a
`cause of action “[w]henever any person or persons, whether or
`not acting under color of law, interfere by threats,
`intimidation, or coercion, . . . with the exercise or enjoyment
`. . . of rights secured by the constitution or laws of the
`United States.” Mass. Gen. L. ch. 12, § 11H (emphasis added).
`The MCRA allows “[a]ny person whose exercise or enjoyment of
`rights . . . has been interfered with, . . . as described in
`section 11H, [to] may institute and prosecute in his own name
`and on his own behalf a civil action for injunctive and other
`appropriate equitable relief . . ..” Mass. Gen. L. ch. 12, §
`11I. As correctly pointed out by the City, FRPD and FRFD, a
`20
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`Case 1:14-cv-13749-NMG Document 56 Filed 09/01/15 Page 21 of 62
`
`municipality is not a “person” within the meaning of the MCRA.
`Howcroft v. City of Peabody, 747 N.E.2d 729, 744 (Mass.App.Ct.
`2001) (affirming summary judgment on plaintiff’s state civil
`rights claim against City of Peabody because municipality is not
`a “person” covered by MCRA); see Kelley v. LaForce, 288 F.3d 1,
`11 n.9 (1st Cir. 2002). Because the Commonwealth, including its
`agencies, is not a “person” subject to suit under the MCRA,
`Williams v. O’Brien, 936 N.E.2d 1, 4 (2010), the MCRA claim
`against the City, FRFD and FRPD is therefore subject to
`dismissal.
`
`Defendant officers, Flanagan, Biszko and Dufour argue that
`they are not “persons” within the meaning of the MCRA and are
`therefore exempt from liability in their official capacities.
`(Docket Entry # 13, p. 9). It is well settled that police
`officers and town officials in their official capacities are not
`“persons” under the MCRA and cannot be held liable. See Damon
`v. Hukowicz, 964 F.Supp.2d 120, 150 (D.Mass. 2013); Howcroft v.
`Peabody, 747 N.E.2d at 744–45 (municipality and individual
`defendants in their official capacities are not “persons” under
`MCRA). Thus, Count II is likewise subject to dismissal as to
`defendant officers, Flanagan, Biszko and Dufour in their
`official capacities.
`E. Counts III, IV, VII, VIII and XVII
`
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`Case 1:14-cv-13749-NMG Document 56 Filed 09/01/15 Page 22 of 62
`
`Defendants next contend that Count III (captioned as a
`“Violation of Fourth Amendment: Warrantless Forced Entry”),
`Count IV (captioned as a “Violation of Fourth Amendment:
`Warrantless Search and Seizure”), Count VII (captioned as “Use
`of Excessive Force Against a Person Over 60 Years of Age”),
`Count VIII (captioned as “Willful and Unreasonable Conduct in
`Violation of Constitutional Rights”) and Count XVII (captioned
`as “Actions Exceeding Reasonable Bounds, Infringing on
`Plaintiff’s Constitutional Rights and Producing Serious Injury
`and Hastening and Precipitating Death”) do not allege any facts
`as to the named defendants or state any cause of action that is
`not already encompassed in Counts I and II. (Docket Entry # 13,
`p. 9). Except for the captions, the foregoing counts simply
`“re-allege[] and re-incorporate[] by reference” the prior
`paragraphs in the complaint. Defendants therefore argue that
`these counts are duplicative of Counts I and II. (Docket Entry
`# 13, p. 9).
`As to counts

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