#112, Drano Series
 
 
       
     
    John Smith's Opposition to Detective James' Motion to Dismiss
    Section 1983, Malicious Prosecution, and Other Causes of Action
     
    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MASSACHUSETTS

                                                                                   CIVIL ACTION: 

    John Smith, 
    Plaintiff 

    v.

    Pocahontas Smith,  in her professional and individual capacities, 
    John G. DiPiano, Esq., in his partnership, professional, and individual capacities, 
    Mauser & Mauser, 
    Timothy M. Mauser, Esq., in his partnership,professional, and individual capacities
    Martha D. Mauser, Esq., in her partnership,professional, and individual capacities
    Susan James, in her official and individual capacities, 
    City of Boston
     Defendants 
    --------------------------------------------------------

    PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT 
    OF HIS 
    OPPOSITION TO MOTION TO DISMISS BY 
    DEFENDANT SUZANNE\1/ JAMES
    (with Affidavit and Certiificate of Service)

    FN1 In note 1 of Suzanne James’ motion to dismiss, her counsel has pointed out that the name is properly spelled "Suzanne" and not "Susan," but some official documents show the spelling to be "Susan." If and when shown a birth certificate or written proof of the correct spelling, Plaintiff will move to amend the spelling of the name if appropriate.


    Now comes Plaintiff John Smith ["Smith"], of Massachusetts and submits this opposition and memorandum in support of his opposition to the Motion to Dismiss by Defendant Suzanne James ["James"]. A supporting affidavit accompanies this motion.

    INTRODUCTION

    The facts are NOT in dispute. Suzanne James has added a few specific facts that were not in the complaint; they have helped to fill in some of the blanks. The added facts include but are not limited to the following:

    1. that Pocahontas Jones Smith ["Pocahontas"] told the officers, Calisi and McKenzie, that "she had an active restraining order against the Plaintiff" [James, Mot.Dis., p. 2, ¶2];\2/

      2.  
        FN2James cites Comp. ¶27 as the source of that fact, but it is not the same fact.
         
    2. that Pocahontas "provided the officers with documents that confirmed the existence of the restraining order that she alleged the Plaintiff had violated" [James, Mot.Dis., p. 2, ¶2];\3/

      3.  
        FN3James cites Comp. ¶27 as the source of that fact, but it is not the same fact
        .
    3. that Pocahontas "informed the officers that while she was at 58 Temple Street for an appraisal of the property, pursuant to an order out of Suffolk Probate and Family Court, she saw the Plaintiff inside 58 Temple Street videotaping her, in violation of her restraining order" [James, Mot.Dis, p.2, ¶2];\4/

      4.  
        FN4James cites ¶¶21-24 as the source of those facts, but ¶¶21-24 do not contain those facts.
         
    4. that Pocahontas "informed Detective James that she wanted to take out a complaint against the Plaintiff for violation of the restraining order"[James, Mot.Dis., p. 3, ¶1, and p. 11, ¶2, lines 8-11];\5/
        5.  
        FN5James cites ¶34 and Compl. Exh. O as the sources of those facts, but ¶34 and Comp.Exh. O do not contain those facts.
         
    5. that Pocahontas "informed Detective James that she would be going to court in Maine" [James, Mot.Dis., p.3, ¶1];\6/
        6.  
        FN6James cites Compl. Exh. O as the source of that fact, but Exh. O does not reveal how James learned of Pocahontas’s wish to take out a complaint against Smith. There are three pages in Exh. O, all from Det. James’ file. Smith does not know which page was written first, second, or third. The second page of Exh. O contains two handwritten notations clearly made at different times: 
    VICTIM will be Going to CT IN ME
    5/14/02 left message for victim         The third page of Exh. O merely has the handwritten notation "Go TO CT IN ME." On neither page is it written that Pocahontas told her that she was going to go to court in Maine. Smith contends 
    (1) that Susan/Suzanne James told Pocahontas to go to court in Maine because it was a Maine order, 
    (2) that Pocahontas went to court in Maine, 
    (3) that the court in Maine told her, Nothing happened in Maine,
    (4) that Pocahontas contacted James again and told her that the Maine court said that the ball was in Massachusetts’ court, and 
    (5) only then, on 14 June 2002 at 9:34 a.m. [Exh. P] did James decide to bring the complaint forward and filed the application in the Boston Municipal Court. James had time – a month -- to check out the statute and did not! Significant is that James concluded Pocahontas was a victim and not merely a complainant. The law is to assume a defendant is innocent until proven guilty.
     
    1. that "Detective James signed the application for complaint on behalf of [Pocahontas], against the Plaintiff for violation of a restraining order" [James, Mot.Dis., p. 3, ¶1].\7/
        2.  
        FN7James cites Compl. Exh. P as the source of that fact, but Exh. P does not contain that fact.
      Defendant Detective James defends on one fact only: she makes a pregnant denial of Smith’s allegation that "James knew or should have known the complaint was groundless and that she sought to use the process for an ulterior purpose – retaliation against the Plaintiff for his suing other police officers and the department" [James, Mot.Dis., p. 12, ¶1]. 

      James did not admit that she had time between 13 May 2002 and 15 July 2002, the first date of the show-cause hearing " [Comp. Exh. P], to look up the law of §5A of M.G.L. c. 209A.\8/ [Exh. A-1,2,3,4]. Neither did she admit that she, as a police detective, had a duty to investigate (1) whether the facts as told by Pocahontas and DiPiano (who made the 911 call) were true [Comp.¶ 63], (2) whether an effective 209A restraining order existed and/or (3) whether Pocahontas had followed the procedure set out in §5A of M.G.L. c. 209A for putting the full faith and credit clause into effect. 

      FN8James filled out the application for a criminal complaint against Smith on 5/17/02 [Exh. P-2] and filed the application at Boston Municipal Court on 6/14/02 [Exh. P-1]. The application was marked up for hearing on 7/15/02 [Exh. P-1 and 2]. Subsequently, the hearing date was continued from 15 to 22 July 2002 [Exhs. P-4 and Q-2]


      ISSUES

      1. James is not entitled to qualified immunity from Plaintiff’s claims (a) under common law and (b) under the Massachusetts Declaration of rights.

      2. Plaintiff made out a prima facie claim of malicious prosecution against Defendant James.
        3.    
      3. There is evidence of abuse of process.

      4. There is evidence that Defendant James participated in a conspiracy
        5. [Count 6].
         
      5. Defendant James can be held liable for intentional infliction of emotional distress [Count 7].
        6.  
      6. Where the jury would have to find James liable before the indemnity by the City of Boston would kick in, dismissing Smith’s common-law tort claims against Defendant James in her official capacity is inappropriate.

      STANDARD OF REVIEW

      When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir. 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass. 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992 (internal quotations omitted).

      ARGUMENTS

      1. James is not entitled to qualified immunity from Plaintiff’s claims.

      Detective James interposed the defense of qualified immunity as a shield to liability on Smith'’ civil rights claims. The United States Supreme Court recognized the doctrine in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), for those government officials who were performing discretionary functions provided that "their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id.


      Smith v. Smith, et al, No. 2001-10890, Memorandum and Order on Four Motions #13, #16, #18, and #21, Paper #46, slip op. at 27-28 (Dist.Ct., Boston, March 21, 2002) (Collings, U.S.M.J.) ["Smith #1"], quoting Fletcher v. Town of Clinton, 196 F.3d 41, 48-49 (1st Cir. 1999).

      Magistrate Judge Collings went on to say that "the qualified immunity question is one ultimately to be determined by the Court as a matter of law." Smith #1 at 28, citing Tatro v. Kervin, 41 F.3f 9, 15 (1st Cir. 1994). In Smith #1, Magistrate Judge Collings also wrote that because the "resolution of the issues of whether probable cause existed for the [officers] to arrest Smith . . and whether [they] acted in an objectively reasonable manner [had to] await the development of the facts of [that] case through discovery, . . . [d]ismissal of the plaintiff’s civil rights claims on the grounds of the defendant officers’ asserted qualified immunity was not warranted at [that] stage of the proceedings" [Smith #1, slip op. at 28]. 

      Where the instant case is far less factually intensive than Smith #1, Smith suggests that Defendant James may be denied qualified immunity now, prior to discovery. The questions to be asked are answerable: (1) Did Detective James have probable cause to institute an application for a criminal complaint? (2) Did she act in an objectively reasonable manner? Both answers are, No.

      Let’s look at what James knew and what she had to learn before filing the application: 

      1. James avers that Pocahontas told her that she had a restraining order from Maine. 

      2. James then had to ask, Did Smith have notice about the Maine order? James has not yet averred that she knew that Smith had notice of the Maine restraining order. 

    Three elements had to be proved in order to obtain a conviction: (a) that such an order was in existence; (b) that the defendant knew of its terms; and (c) that the defendant violated those terms. 

    Com. v. Leger, 52 Mass.App.Ct. 232, 235 (2001), citing Com. v. Basile, 47 Mass.App.Ct. 918, 919 (1999). Com. v. Rauseo, 50 Mass.App.Ct. 699, 704-705 (2001). 

    Without knowledge of an effective order being in existence, there was no probable cause to institute an application for a criminal complaint, the case could not be sent to the jury, and there could be no conviction. Paquette v. Com., 440 Mass. 121, 132 (2003), where, in determining whether there was "probable cause to bind over," the judge had to view the case as if it were a trial and to determine "whether the Commonwealth presented sufficient legally competent evidence to send the case to a jury." 
    1. Was the Maine order effective in Massachusetts? No, it was not. Pocahontas never followed the procedure in §5A of M.G.L. c. 209A until 30 April 2003, only two weeks’ shy of one full year after DiPiano called in a violation of that order and Pocahontas had ongoing communication with Suzanne James. Compl. Exh. U, Pocahontas’s Affidavit of Filing of Certified Copy of Foreign Protection Order, dated 30 April 2003, in Mass. Probate & Family Court at Suffolk.

      2. Smith incorporates herein by reference the discussion and exhibits referred to on pages 4-6 of his opposition to the City of Boston’s Motion to Dismiss his Complaint, and regarding the three paragraphs of §5A of chapter 209A. In sum, ¶2 of §5A cannot be left as an orphan, it is as much a part of the statutory scheme as are ¶¶1 and 3.  

    2. Pocahontas’s Affidavit of Filing of Certified Copy of Foreign Protection Order [Compl. Exh. U] is definitive proof that Susan/Suzanne James never investigated whether the Maine order was effective. That was total incompetence. James (1) had to be familiar with G.L. c. 209A, §5A [Domestic Violence Guidelines, §3.0\9/] and (2) had to ask Pocahontas whether she had filed it in the manner proscribed by §5A. James did not.
        3.  
        FN9"All officers are expected to be thoroughly familiar with the contents of that statute (as amended from time to time) and to act with appropriate discretion and competence in carrying out its provisions." DV Guideline §3.0 [Exh. B]. :As law enforcement officers they are expected to be knowledgeable of the laws, ordinances and court procedures." BPD Rules and Procedures Rule 320, General Considerations.
         
    3. Given also (a) that James’ lawyer, Piemonte-Stacey, failed to discuss ¶2 of the 3-paragraph section, the paragraph which sets out what a complainant must do to domesticate a foreign abuse-prevention order, and (b) that James’ application for the criminal complaint [Comp. Exhs. P, Q] refers only to §7 of c. 209A, it can be inferred that James knew nothing about §5A. Where she intended to prosecute a person under that statute, it was James’ duty to become familiar with that statute. See [Comp. ¶61]. Her failure to do so resulted in the reckless disregard of Smith’s civil right to be free of false criminal charges, to be free from a threat of taking his liberty. "Life, liberty, and property": Defendant James did not take those words seriously.
        4.  
    4. It appears also that Detective James did not ask Pocahontas whether she had domesticated the foreign order. If James did, then Pocahontas lied. If Pocahontas lied, then James should have asked her where she filed her §5A affidavit. Because of Comp. Exh. U, it can be reasonably inferred and concluded that James never attempted to find the §5A affidavit. Had she done so, she would have known definitively that it did not exist on 13 May 2002.
        5.  
    5. Detective James violated §§3.0, 3.1(B), and 3.3(A)(3) of the Domestic Violence Guidelines [Exhs. B and C], and their cognates in the Domestic Violence Handbook [Exhs. D1-4].
        6.  
    6. Defendant James also violated BPD Rules and Procedures Rule 320-B by filling the Application for Complaint form. That form is to be completed by the "arresting officer" [Exh. F].
        7.  
    7. The City of Boston, with deliberate indifference and reckless disregard, did not train or teach James about §5A or train her to familiarize herself with the statute under which she is charging a defendant.
        8.  
    8. The City of Boston, with deliberate indifference and reckless disregard, promoted and retained Detective James as a detective in its police department.

      9. Although the definition of probable cause differs from situation to situation,\10/ and the definition for this situation does not appear to have yet been crafted by a Massachusetts court, the standard closest to the evasive one required for this case is that used in forfeiture cases: "Probable cause determinations deal with articulable facts and circumstances, not just reasonable states of mind." Com. v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 14 (1995), citing Commonwealth v. Grzembski, 393 Mass. 516, 521 (1984). 
      FN10"The probable cause to bind-over standard requires a judge to view the case as if it were a trial and to determine whether the Commonwealth has presented sufficient legally competent evidence to send the case to a jury." Paquette v. Com., 440 Mass. 121, 132 (2003). "Perhaps the most important difference between the bind-over and §12(c) sexual-dangerousness proceedings is the quality of the evidence that is available to the judge and that will be offered at a trial on a petition for commitment under G.L. c. 123A. Com. v. Reese, 438 Mass. 519, 523-524 (2003). 

      The preponderance of the evidence standard for extension of protective order was different than probable cause standard for rape indictment. Doe v. Keller, 57 Mass.App.Ct. 776, 778 (2003) , citing M.G.L.A. c. 209A, §3.

      When a revocation is sought because of a probationer's commission of a crime, "the Commonwealth must prove by a ‘preponderance of the evidence’ that the probationer was in breach of his probation ‘contract.’". Com. v. Juzba, 44 Mass.App.Ct. 457, 462 (1998) , quoting Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995) .

      "Probable cause under the Fourth Amendment means that there is reason to "believe that a crime has been committed and that evidence of the crime will be found in the place to be searched.’" Com. v. Lawrence L., 439 Mass. 817, 823 (2003), quoting New Jersey v. T.L.O.,469 U.S.. 325, 355 (1985), and cases cited

      The probable cause standard for "arresting officers" throughout the Commonwealth is set forth in two sections of Domestic Violence Law Enforcement Guidelines 2002 (Revised): Massachusetts Policy for Law Enforcement Response to Domestic Violence ["Domestic Violence Guidelines"], which was published by the Massachusetts Executive Office of Public Safety and was in effect as of 15 February 2002, three months prior to the event of 13 May 2002. Sections 3.1(B) and 3.3(A)(3) of those guidelines read:
     
    Police officers should keep in mind that the same standard 
    for probable cause applies to domestic violence offenses 
    as for any other crime. (See Arrest Guidelines, Section 3.3).
    Figure 1. Probable cause standard in Domestic Violence Law Enforcement Guidelines 2002
    (Revised): Massachusetts Policy for Law Enforcement Response to Domestic Violence §3.1(B) [Exh. C].
    (Mass. Executive Office of Public Safety, Boston, 2002)),
    This same instruction appears also in Massachusetts Domestic Violence Handbook
    (Fall River, MA: Commonwealth Police Services, Inc. 2000), p. 136 [Exh. D-3]. 
     
    3.3 ARREST GUIDELINES
    A. The decision to arrest
    . . . 
    3. The decision to arrest must be based on whether probable cause exists that
    the crime occurred, not on whether the victim wishes to seek complaints or
    wishes to testify at a future date.
          Figure 2.  Domestic Violence Guidelines, §3.3(A)(3) (emphasis in original) [Exh. C].
          and also in the Massachusetts Domestic Violence Handbook at page 138 [Exh. D-4]
    So, clearly, if an arresting officer must not arrest on the basis that "the victim wishes to seek complaints," then James, who was not an arresting officer, but a detective, to base her decision to file an application for a criminal complaint against Smith on Pocahontas’s wish to seek a complaint was absolutely contrary to Massachusetts public policy and specifically to the Domestic Violence Guidelines, vigorously adhered to statewide since promulgated in 1991.

    In sum, here, not only was there no probable cause, there was no crime with which to charge Smith. Under M.G.L. C, 209A, no mens rea is required and no act is required. The crime charged, according to Comp. Exhs. P-2, Q-2, occurred when Pocahontas unexpectedly arrived at the Smiths’ jointly owned Boston home (from which she had moved to Maine a year earlier) and she "observed him in the hallway videotaping her" [Comp. Exhs. L-1 and 2, P-2, Q-2]. That observation of him videotaping is the only allegation in James’ application for a criminal complaint.

    Curiously, in both her motion to dismiss and her application for the criminal complaint, James makes no reference to DiPiano’s 911 call [Comp. Exhs. I and J] or to his allegation that Smith would not leave the property when asked. (The reason, to be explored during discovery, is suggested in n. 3 of p. 8 of Smith’s opposition to the City’s motion to dismiss.) Notwithstanding the absence from James’ documents of the facts regarding DiPiano’s 911 call and the false allegations he made during that call to entice the police to Smith’s Boston residence, the inference may be reasonably drawn that James not only learned that she could not prove them at trial, but also that she learned their unprovability prior to her writing the application. That early knowledge should have deterred James.

    She should have smelled the proverbial rat: She knew she did not have probable cause to institute an application for a criminal complaint against Smith. And she did not act in an objectively reasonable manner. For these reasons, James must be denied a defense of qualified immunity.

    1. Plaintiff made out a prima facie claim of malicious prosecution against Defendant James [Count 4].

    Smith does not quarrel with James’ identification of the four elements to be argued for a prima facie case of malicious prosecution. "Each of these elements has been alleged in the complaint. That ‘the facts do not support Plaintiff’s claim’ from the defendants’ perspective is not a reason to dismiss the malicious prosecution claim under Rule 12(b)(6)." Smith #1, slip op. at 29.

    James and Smith disagree, however, as to whether and how the facts apply to the last two: absence of probable case and actual malice. James insists she had probable cause to institute charges. Smith says, Not so, and rests on his argument above that James absolutely did not have the requisite probable cause. James denies having had actual malice (which she does not define). Smith argues the opposite below.

    After citing the paragraphs of Smith’s complaint, James states, "there is not one fact in the complaint that supports Defendant James knew of any improper motive." That is not true [Comp.¶¶ 39, 41(a-f), 48-49]. Smith properly pled those facts. He pled that when he met with James at the Area A-1 station [Comp. ¶39], James made Smith aware that she knew of the previous charges Pocahontas brought with the help of Area A-1 officers, charges which were dismissed and out of which Smith #1 arose [Comp. ¶41(a-f)]. And Smith made James aware that he had tried to get Area A-1 to bring a charge under M.G.L. c, 269, §13A,against Pocahontas for false reporting to the police [Comp. ¶41]. In fact, he sought her assistance and he showed her the papers he had brought with him to prove that she once again was making false reports to the police. Id. Those facts which Smith pled must be taken as true for the purposes of determining a motion to dismiss.

    As to the facts cited in ¶2 of page 11 of James’ motion to dismiss: Smith not only disputes almost all of them, he has proof attached to his complaint that James’ assertions are untrue: 

    1. James asserts that Smith does not and cannot contest that there was in existence a 209A order. This is absolutely untrue and it is asserted by James frivolously and in bad faith. See Comp. Exh. H, Restraining Order History. It shows that two 209A orders Pocahontas had brought had expired. 

    a. The first arose on 12/13/99 (but was never served in accordance with the statute), when Pocahontas filed for divorce. It expired on 12/13/2000. 

    b. The second order arose on 1/4/01\11/ (but was never served in accordance with the statute) and expired on 2/15/02, three full months before 5/13/02, the date on which the event out of which James’ criminal complaint arose. 

    FN11In note 2 on page 2 of James’ Motion to Dismiss, James’ counsel wrote, "[Smith] was arrested by Officers Toner and McMahon for drilling into the property at 58 Temple Street." The "drilling" was untrue! SeeSmith #1.
    2. Plaintiff does not "admit" that officers were informed that he was in violation of a court order by being at 58 Temple Street. Plaintiff "learned" that the officers were so informed. James cites no paragraph for her assertion. Smith averred that the police officers were falsely informed that he was in violation of a court order by being at the property. In fact, he was at 58 Temple Street at 10 o’clock in the morning on 5/13/02 because he was ordered by Judge Roberts to be there to allow an inspection of the property for appraisal purposes [Comp. ¶¶ 27, 29, 41; Comp. Exh. G].

    3. Smith does not dispute that Pocahontas showed James her Maine restraining order,\12/ but, as Smith pled, that order had not been domesticated by 5/13/02; it was not domesticated until 4/30/03, a year after the event [Comp.Exh.U] . Therefore James could absolutely not have seen OR been shown a restraining order that was effective on 5/13/02. Note that in James’ motion, she assiduously avoids using the word "effective" [James, Mot.Dis., p. 11, ¶2, lines 5-6]. 

        FN12It is as yet unclear how Pocahontas showed James the order. At the Smiths’ divorce trial, Pocahontas claimed to have communicated with James by phone [Div.Trial Day 10, page 1840, lines 16-22]. It might be that she FAXed it to James, but that fact has yet to be asserted by either Pocahontas or James.

      For purposes of analysis in malicious prosecution cases, the negative prerequisite of want of probable cause to complain has been taken to mean a lack of probable cause so obvious that an inference is warranted that the complaint was made with malice. Beecy v. Pucciarelli, 387 Mass. 589, 593-594 (1982). Foley v. Polaroid Corp., 400 Mass. 82, 100-101 (1987). 

    Conway v. Smerling, 37 Mass.App.Ct. 1, 5 (1994).

    4. James admits that DiPiano called the police [James, Mot.Dis., p. 11, ¶2], but she fails to admit is that the restraining order that Smith allegedly violated was not enforceable in Massachusetts because of Dori’s failure to file it in any Massachusetts court as required under ¶5A of. M.G.L. c. 209A. 

    5. James asserts that Pocahontas’s allegedly telling her "that she wanted to file a complaint against the Plaintiff for violation of the restraining order" was sufficient to "give Defendant James probable cause to bring criminal charges against the Plaintiff" [James, Mot.Dis. p. 11, ¶2, lines 8-11].\13/

        FN13The revelation by James that Pocahontas wanted to file a complaint against Smith for violation of a restraining order – when there was none in effect in Massachusetts on 5/13/02 – not only makes Pocahontas vulnerable to liability but sets Pocahontas up for liability on Smith’s malicious prosecution claim. Where a "citizen presses the police to apply for a complaint, an action for malicious prosecution lies against the importuning citizen (provided, of course, that all other elements of the tort are present)." Conway v. Smerling, 37 Mass.App.Ct. 1, 4-5 (1994) , citing Carroll v. Gillespie, 14 Mass.App.Ct. 12, 25 (1982).

    Smith can only ask, then, Why, when Smith complained at Area A-1 about Dori’s false reporting to the police in January of 2001, did the police not file an application for a complaint on his behalf? Although a desire for a complaint alone does not constitute probable cause for those officers [see § 3.3(A)(3), Domestic Violence Guidelines], Smith had more than just a desire to see a complaint issue against Pocahontas: He had considerable documentary evidence that Pocahontas had falsely reported to the police whereas Pocahontas did not have proof that he should not have been at the Temple Street property. 

    So the answer to the question is, Gender discrimination, that’s why! 

    James is a Domestic Violence detective. She goes from precinct to precinct on DV matters, matters in which officers follow the preferred-arrest policy of the DV guidelines [James, Mot.Dis., p. 10, ¶1, lines 9-11]. She is accustomed or inured to the arrest of men over women, to believing that all men are rotters. Her job appears to have radicalized her.

     Clearly, where the facts upon which James relies are false, her conclusion that she is protected by qualified immunity and that his claim of malicious prosecution must fail [James, Mot.Dis. p. 10, ¶1] is unsupported and is specious.

    1. There is evidence of abuse of process [Count 5].

    James again argues that Smith lacks evidence [James, Mot.Dis. p. 13, ¶1]. "The [ ] argument, lack of evidence," the court in Smith #1 wrote, "is equally unavailing to defeat the abuse of process claim in Count [5]. Smith has sufficiently alleged the prerequisites of a prima facie case detailed by the Appeals Court of Massachusetts" in Vittands v. Sudduth, 49 Mass.App.Ct. 401, 406 (2000) and by this district court in Santiago v. Fenton, 891 F.2d 373, 388 ("An action for abuse of process when an officer uses a lawful criminal process to accomplish an unlawful purpose"). Smith has done similarly in this case. 

    For instance, the only issue here is whether Smith’s well-pled claim of retaliation by James for Smith’s suing other officers and the department in Smith #1 is sufficient to support his claim that James used legal process for an unlawful purpose [James, Mot.Dis. p. 13, ¶1]. 

    James’ assertion in ¶1 of page 13 that Smith did not plead that she knew of his suit against fellow officers [Smith #1] is patently false. See Comp. ¶41(f), which pleads that fact explicitly. When determining a motion to dismiss, the facts in Plaintiff’s complaint must be assumed as true.

    1. There is evidence that Defendant James participated in a conspiracy [Counts 2 and 6].

    In Counts 2 and 6,\14/ Smith contends that Pocahontas, DiPiano, the Mausers, the lawfirm, the City, and James acted in concert to have Plaintiff charged with a restraining-order violation for which they knew or should have known there was no probable cause and, in furtherance of that agreement, did so charge and prosecute the plaintiff without probable cause [Comp. ¶¶51, 77-80; also ¶¶19-20, 22, 24-27, 29, 34-37, 42-43]. The same finding here as in Smith #1 is appropriate: "Based on these allegations, it cannot be said as a matter of law that Smith is unable to prove a set of facts to support his conspiracy claim." Smith #1 at 35. 
    FN14James did not differentiate between the two counts in her motion.
    The facts cited in the Complaint paragraphs cited immediately above show, if not prove, that Pocahontas began the new conspiracy during early Spring 2002:

    1. On 4/12/02, Pocahontas obtained an ex parte restraining order in Maine [Comp. ¶19]. 

    2. Then she instructed her counsel to compel real estate appraisals for two properties [Comp. ¶20]. Their motion was allowed [Comp. ¶21]. 

    3. Dori and DiPiano had denied in the divorce court that the properties had been previously appraised.\15/ 

      FN15DiPiano was one of the defendants in a suit brought by Smith in this court, 02-CV-10873-JLT. The claims included, but were not limited to, a §1983 action and one for attempted fraud of between $156,000 and $312,000 (by secreting evidence), and emotional distress [Comp. ¶33]. 

      Other details are in Table 1 in Smith’s Opposition to DiPiano’s Motion to Dismiss the instant case. The details of the previous appraisal of a property in Pelham, MA are in the Complaint of 02-CV-10873. In that suit, Smith attached documentary proof – the appraisal itself – that the Pelham property had been previously appraised. Pocahontas through her legal team moved to preclude that document. 

      In the divorce trial, Pocahontas testified that the Temple Street, Boston, property was also appraised between April and August 2000, Leonard Desaultes [Div.Trial Day 13, pp. 2373-2375; Tr.Exh.43].

    4. On 5/13/02, Pocahontas, without notice to Smith, appeared at the court-ordered appraisal [Comp. ¶22]. 

    5. With Pocahontas at his side, DiPiano placed a 911 call to the police station to report falsely that Smith would not leave the property when asked [Comp. ¶27]. 

    6. On 5/13/02, in Pocahontas’s presence, DiPiano lied to the Discovery Master that the appraisal did not take place [Comp. ¶¶21, 30 and Comp. Exh. M, line 19], but it had taken place [Comp. ¶¶23, 28, 31-32 and Comp. Exhs. K and N]. Pocahontas did not correct DiPiano’s lie.

    7. Dori was later in contact with James [Comp. ¶¶34-37 and Comp. Exh. O-1-3] to convince her to bring a criminal complaint against her husband, Smith.

    8. Dori’s ulterior motive was to gain a collateral advantage in the divorce: if Smith went to jail or was found guilty, the child-custody and property battles in the divorce trial would have been over.

    9. DiPiano’s ulterior motive was twofold: one, was to retaliate against Smith for discrediting DiPiano in probate and family court; two, was to increase the likelihood of being paid in full by Pocahontas.

    10. Wanting to learn what happened whether the police arrived at Temple Street on May 13th, Smith visited Area A-1 police station and learned that Detective James was handling the case. When he met with James in person, he told her his entire story, including the fact that he had brought suit in federal court against the BPD officers and the department [Comp. ¶41(a-f)].

    11. It is not yet known (a) whether James did, in fact, do her job and learn that the Maine order was not domesticated or (b) whether she, in fact, did not fulfill her obligation to investigate, as required by her job as a police detective.

    12. If James did know that the Maine RO was not domesticated, but filed it anyway, then she did act in unison and conspire with Pocahontas and DiPiano to deprive Smith of his civil rights to be free of false charges and threaten his life and liberty. A common design or an express agreement between James and Pocahontas and/or DiPiano to do the wrongful act of instituting an application against Smith. Smith #1, slip op. at 32-33, quoting Rose v. Town of Concord, 971 F.Supp. 47, 51 (D. Mass. 1997) (footnote omitted), citing Restatement (Second) of Torts §876 comment b; see also Jesionowski v. Beck, 937 F.Supp. 85, 105 (D. Mass. 1996). 

    Of course, if James did know, then her attorney filed a colorless motion to dismiss Smith’s claims and the act is potentially sanctionable. Jaraki v. Quinlan, 1995 WL 1312571 *10-11 (Mass.Super. 1995) (McHugh, James, III, J.). The court in Jaraki, at 10, also cited Peltier v. Peltier, 548 F.2d 1083, 1084 (1st Cir. 1977), for the proposition that a "precondition to finding bad faith is an ‘intentional institution of an action which one knows to be fictitious and wholly without merit and which is done for the specific purpose of frustrating and harassing lawfully instituted legal procedures.’" 

    A claim is in bad faith if it is "made ‘entirely without color and . . . for reasons of harassment or delay or for other improper purposes.’" Jaraki, at 12, citing Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir. 1980). 

    13. If James did not know, when she should have known, that the Maine RO was not domesticated, then she did not do her duty as a police detective and acted with deliberate indifference or in reckless disregard of known provable facts and of Smith’s civil rights. One of her motives was retaliation, as Smith averred in his Complaint. Another of her motives was gender discrimination, which arose out of her personal bias for women and prejudice against men.

    14. Proof of James’ bias and discriminatory acts is in her motion to dismiss, in which she wrote that Pocahontas’s allegedly telling her "that she wanted to file a complaint against the Plaintiff for violation of the restraining order" was sufficient to "give Defendant James probable cause to bring criminal charges against the Plaintiff" [James, Mot.Dis., p. 11, ¶2, lines 8-11]. 

    See also James, Mot.Dis., p. 16, ¶5, where James’ counsel admits on James’ behalf that James "completed a criminal complaint on behalf of Defendant Pocahontas, who informed Defendant James that the Plaintiff had violated a restraining order and that she wanted to file a complaint against the Plaintiff."

    Let it be noted that James’ counsel, Piemonte-Stacey, failed to provide any legal authority in support of James’ position that a person’s wanting the police to file a criminal complaint against another constitutes probable cause to institute a criminal charge . . . or that someone saying that a person violated a restraining order – without more – constitutes probable cause to institute a criminal charge. The courts would be flooded were this all that were necessary. 

    15. Smith’s telling several officers at Area A-1 that he wanted to file, pursuant to M.G.L. c. 269 §13A, a complaint against Pocahontas for false reporting to the police did not constitute probable cause for those officers. Smith himself instituted an application, but it was denied by a clerk/magistrate at the BMC. And he had written proof that Pocahontas had falsely reported to the police whereas Pocahontas did not have proof that he was where he should not have been. 

    16. The only other possible reason for James deliberate indifference or reckless disregard of the known, provable facts in front of her is that James received egregiously inadequate training to do her assigned work or that she was simply incompetent at her job. James stated one more defense: 

    . . . Chapter 209A states the Defendant James may rely on the statements made by Defendant Pocahontas, a person protected by the restraining order. Mass. Gen. L. ch. 209A, §5A.
    James’ Motion to Dismiss, p. 15, ¶2.

    Specifically, Smith was charged with the offense of violating here in Massachusetts a restraining order issued in Maine. The statutory basis for charging him in Massachusetts is found in the first paragraph of G.L. c. 209A, §5A.\16/ Section 5A has not yet been interpreted by this Court, making this a case of first impression.\17/ A copy of the statute is attached hereto as Exh. A.

    FN16Paragraph 1 of §5A of G.L. c. 209A reads:
    Any protection order issued by another jurisdiction, as defined in section one,
    shall be given full faith and credit throughout the commonwealth and enforced
    as if it were issued in the commonwealth for as long as the order is in effect
    in the issuing jurisdiction.

         FN17Section 5A also does not appear on the Criminal Complaint against Smith -- only §7 and §3B do – but §5A was argued by the assistant district attorney at the hearing on Smith’s motion to dismiss and relied upon by the court.
    Smith contends that the Commonwealth may not give, in accordance with ¶1 of G.L. c. 209A, §5A, full faith and credit to the Maine order because that order was never filed in any court in Massachusetts with or without the affidavit required of Pocahontas by the ¶2 of G.L. c. 209A, §5A.\18/ Paragraph 1 is clearly to be used by arresting officers because of usually exigent circumstances. Those exigent circumstances do not exist for the detective, who did not come into the case until after the "reported event" had concluded.
    FN18The relevant portion of ¶2 of §5A of G.L. c. 209A reads:
    A person entitled to protection under a protection order issued by another jurisdiction may file such order in the superior court department or the Boston municipal court department or any division of the probate and family or district court departments by filing with the court a certified copy of such order. . . . Such person shall swear under oath in an affidavit, to the best of such person's knowledge, that such order is presently in effect as written. Upon request by a law enforcement agency, the register or clerk of such court shall provide a certified copy of the protection order issued by the other jurisdiction.
    So, also clearly, ¶1 is not mutually exclusive of ¶2. There would be no purpose of including ¶2, if ¶1 were not dependent upon it. Thus, ¶1 is triggered only if the procedure in ¶2 has been followed. Here, where ¶2 was not followed, ¶1 may not and cannot apply. 
    5. James can be held liable for intentional infliction of emotional 
        distress [Count 7].
    Smith asserted that by Detective James’ action – like those of Defendant BPD Officers Toner & McMahon in Smith #1 -- in instituting a false criminal charge against him in violation of his constitutional rights, which conduct was extreme  and outrageous, James intended to, and did cause him not only severe emotional trauma but also mental pain and anguish, embarrassment, and humiliation  [Comp. ¶90]. 

    James argues that Smith’s suffering does not constitute "outrageousness," which she wrote is "a high order of reckless ruthlessness or deliberate malevolence." Smith does not quarrel with that definition or with the cases she cites. Smith suggests, however, that it is equally as important to note – from those same cases 
    -- what "outrageous" is not.   By noting the contrast, it is easier to grasp a better sense of what "outrageous" is.

    Outrageous conduct means something "more than workaday insults, annoyances, or even threats and petty oppressions.... It means, for example, 
    a high order of reckless ruthlessness or deliberate malevolence that, as the Agis and Foley [v. Polaroid, 400 Mass. 82 (1987)] opinions say, is simply intolerable." Conway v. Smerling, 37 Mass.App.Ct. 1, 8 (1994).
    Thomas v. Surprise, 54 Mass.App.Ct. 1108, -- (2002) (unpublished). 

    Filing an application for a criminal complaint 

    • to issue against someone is something "more than workaday insults, annoyances, or even threats and petty oppressions," 

      •  
    • to issue against someone for allegedly violating a Massachusetts restraining order is something "more than workaday insults, annoyances, or even threats and petty oppressions,"

      •  
    • to issue against someone for allegedly violating a Maine restraining order that was not domesticated on the day of the alleged violation is something "more than workaday insults, annoyances, or even threats and petty oppressions," 

      •  
    • to issue against someone for violating a Maine restraining order that was not domesticated on the day of the alleged violation at the location where the proposed defendant was court-ordered to be is something "more than workaday insults, annoyances, or even threats and petty oppressions," 

      •  
    • to issue against someone for violating a Maine restraining order that was not domesticated on the day of the alleged violation at the location where the proposed defendant was court-ordered to be because the complainant-wife went – without notice to him – to the place where the proposed defendant had been court-ordered to be is something "more than workaday insults, annoyances, or even threats and petty oppressions," 

      •  
    • to issue against someone for violating a Maine restraining order that was not domesticated on the day of the alleged violation at the location where the proposed defendant was court-ordered to be because the complainant-wife went – without notice to him – to the place where the proposed defendant had been court-ordered to be because the court allowed the wife’s motion for the appraisal of the property to occur on that day is something "more than workaday insults, annoyances, or even threats and petty oppressions," 

      •  
    • to issue against someone for violating a Maine restraining order that was not domesticated on the day of the alleged violation at the location where the proposed defendant was court-ordered to be because the complainant-wife went – without notice to him – to the place where the proposed defendant had been court-ordered to be because the court allowed the wife’s motion for the appraisal of the property to occur on that day, and then the wife’s lawyer (who wrote the motion), with the wife at his side, phoned 911 to make a false report that the husband would not leave the property is something "more than workaday insults, annoyances, or even threats and petty oppressions," 

      •  
    • to issue against someone for violating a Maine restraining order that was not domesticated on the day of the alleged violation at the location where the proposed defendant was court-ordered to be because the complainant-wife went – without notice to him – to the place where the proposed defendant had been court-ordered to be because the court allowed the wife’s motion for the appraisal of the property to occur on that day, and then the wife’s lawyer (who wrote the motion), with the wife at his side, phoned 911 to make a false report that the husband would not leave the property and then the police detective met the husband in her office and ignored everything he told her, ignored the Massachusetts court order, ignored the wife’s need to domesticate the Maine order, and because the detective specializes in Domestic Violence cases and is predisposed to do automatically what the complainant wanted just because the complainant was a woman, is something "more than workaday insults, annoyances, or even threats and petty oppressions." 

    In fact, all of the above is not only "more than workaday insults, annoyances, or even threats and petty oppressions" it is extreme and outrageous to the ordinary layperson . . . for to have to face falsely brought criminal charges for no rational reason deprives the accused innocent person of his belief in the system of justice, causes fear of the system, and certainly deprives him of his constitutional right to liberty, to be free of false charges and not to have to withstand the anxiety and fear of being unlawfully convicted and imprisoned. Nothing about facing false criminal charges is workaday or petty. And anyone who causes an innocent person to suffer those deprivations is nothing but blameworthy.

    Smith suggests that Detective James did not do anything that she did not intend to do. Had James performed her duties as she should have done, Smith would have been saved the suffering he has gone through. If James does not recognize the harm she does when she falsely accuses someone of a crime, then she should not be in the business of law enforcement. Her bringing charges under the circumstances described above was not only outrageous, it was venal.

    Smith contends that these allegations suffice to plead a claim for intentional infliction of emotional distress. See Smith #1, slip op. at 36. Doyle c. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996), citing Agis v. Howard Johnson Co., 371 Mass. 140 (1976); see also Dusoe v. Mobil Oil Corp., 167 F.Supp.2d 155, 165 (D. Mass., 2001).

    1. Where the jury would have to find James liable before the indemnity by the City of Boston would kick in, dismissing Smith’s common-law tort claims against Defendant James in her official capacity is inappropriate.

    Smith does not quarrel with James’ argument that in a §1983 action, she is accountable for her own actions. It is established that "[m]onetary damages against State officials are available only if they are sued in their individual or personal capacities for actions under color of State law." O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 141 (1993), citing Hafer v. Melo, 502 U.S. 21, 23-24, 112 S.Ct. 358 (1991). Liability turns on the capacity in which State officials are sued, not on the capacity in which they acted when injuring the plaintiff. O’Malley, at 142, citing Hafer, 112 S.Ct. at 362-363.

    Existing common law holds, however, that "neither a State nor a State official acting in his official capacity is a person under 42 U.S.C. § 1983." McNamara v. Honeyman, 406 Mass. 43, 52 (1989). Smith quarrels with that thesis, for the Preamble of the Massachusetts Constitution defines the Commonwealth as a "Body politic . . . formed by a voluntary association of individuals," a body politic that "is a social compact, by which the whole people covenants with each Citizen, and each citizen with the whole people, that all shall be governed by certain Laws for the Common good." Kargman v. Boston Water and Sewer Com'n, 18 Mass.App.Ct. 51, 54 (1984).\19/

    FN19Smith, of course, is in agreement with the "Dictionary Act" argument set forth by the minority opinion in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that the words "bodies politic and corporate" -- before and after the time the Dictionary Act and §1983 were passed -- were understood to include the States. Will, at 69-70 (majority opinion), 69 notes 8 and 9, and 73-77 (Justice Brennan, with whom Justices Marshall, Blackmun
    Notwithstanding the above argument regarding the Commonwealth, if Smith proves that James’ conduct was the result of being improperly trained, then the City of Boston bears responsibility for refusing to train or for negligently training and/or retaining her in the position of detective for the BPD [Count 3]. See Figures 3(a) and (b) below.
     
     
    Figures 3(a) and (b). Massachusetts Domestic Violence Handbook, at pp. 19-20 [Exhs. D-3, D-4]
    (Fall River, MA: Commonwealth Police Services, Inc. 2000)

    As to the common-law claims, Smith does not dispute that James is indemnified, under G.L. c. 258, by the City of Boston. She was and is an agent of the City. Medeiros v. Middlesex Ins. Co., 48 Mass.App.Ct. 51, 55 (1999), citing Gangl v. Ford Motor Credit Co., 37 Mass.App.Ct. 561, 563 (1994): "a judgment holding an agent or servant not negligent ‘compels a similar finding, as matter of law, for the principle or master.’" An agent is a proper party. An agent's acts bind the principal. The jury would have to find James liable, before the indemnity by the City of Boston would kick in. Gangl, at 563-564. Therefore James in her official capacity may not be dismissed at this time.

    As of 2003, the SJC excluded civil rights from the Mass. Torts Claim Act. Cf . Triplett v. Town of Oxford, 439 Mass. 720, 726 (2003) (MTCA immunized  public employees against personal negligence suits [G.L. c. 258, § 2], but  provided public employers with the discretion to indemnify public employees  for financial loss and expenses arising from intentional torts and civil rights violations.

    WHEREFORE, Plaintiff prays the Motion to Dismiss by Susan [Suzanne] James be denied.

                                                                 Respectfully submitted,
                                                                 John Smith, 
                                                                 By his attorney,

                                                                 _________________________________
    19 December 2003                               Barbara C. Johnson, Esq., 
                                                                 6 Appletree Lane
                                                                 Andover, MA 01810-4102
                                                                 978-474-0833

    AFFIDAVIT

    I, Barbara C. Johnson, Esq., hereby depose that all statements and observations I attribute to myself saying or observing are true, and all other statements are true upon information and belief.

    Sworn under the pains and penalties of perjury.

                                                                   _________________________________
    19 December 2003                                 Barbara C. Johnson, Esq., 

    CERTIFICATE OF SERVICE

    I hereby certify that a true copy of the above document was served upon each party appearing pro se and the attorney of record for each other party by mail/in hand on 19 December 2003.
    19 December 2003                                               Barbara C. Johnson