#38, Drano Series
 
     
Complaint Brought Pursuant to 
42 U.S.C. sec. 1983 for
False Arrest, False Imprisonment, Conspiracy, and Malicious Prosecution and Other Claims*
* Exhibit A, referred to below, is a transcript attached to the Complaint and made from a tape of the arrest. 
"John Smith" was holding a tape recorder with which he had been taping the conversation with his wife's step-brother when the police entered the scene. 
Fate would have it that it was even in his palm when the officer cuffed his wrists behind Smith's back. 
The officer didn't notice it until Smith was being booked at the station. 



UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTS

------------------------------------------------------
John Smith
                                                   Plaintiff                     CIVIL ACTION:  99999999 

v.

Pocahontas Smith, in her professional
            and individual capacities,
Aaron Burr,
Officer Bill, in his official and
            individual capacities,
Officer Ed, in his official and
            individual capacities,                                  VERIFIED COMPLAINT
City of XXXXXX, 
Buffalo Bill, Police Commissioner of                         JURY CLAIM AS TO
            XXXXXX, Mass., in his official                            ALL COUNTS
            and individual capacities, 
John Does,
Jane Doe,
                                    Defendants 
------------------------------------------------------

INTRODUCTION

John Smith ["Smith"] of Massachusetts hereby asserts the following claims against the defendants in the above-entitled action: 

(1) violation of 42 U.S.C. 1983: arrest, 

(2) violation of 42 U.S.C. 1983: detention and confinement,

(3) violation of 42 U.S.C. 1983: strip search, 

(4) violation of 42 U.S.C. 1983: conspiracy, 

(5) violation of 42 U.S.C. 1983: refusing or neglecting to prevent, 

(6) malicious prosecution, 

(7) malicious abuse of process,

(8) violation of Mass. Civil Rights Act (M.G.L. c. 12, sec. 11I), 

(9) false arrest and imprisonment, 

(10) assault, 

(11) battery, 

(12) conspiracy, 

(13) intentional infliction of emotional distress, 

(14) reserved for negligence (until 6 months after presentment), and 

(15) reserved for negligent infliction of emotional distress (until 6 months after presentment). 
 

JURISDICTION

1. Jurisdiction of this court arises under 28 U.S.C. secs 1331, 1337, 1343(a), and 1367(a); 42 U.S.C. secs. 1983, 1985, 1986, and 1988; and 18 U.S.C. 1961-1968.

2. Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a), and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966). 
 

PARTIES

3. Plaintiff John Smith ["Smith"] is a natural person residing at 00 BBBBBB Street, Unit Z, XXXXXX, County, Massachusetts, United States of America; was a resident of Massachusetts during all relevant times of this action, and is the husband of Defendant Pocahontas Smith, Esq., and step-brother-in-law of Defendant Aaron Burr.

4. Defendant Pocahontas Smith ["Pocahontas"], who is a natural person, a Harvard-Law-School-educated attorney, and member of the Massachusetts and ZZZZ Bars, was residing at 00 OOOOOOOOOOOO, United States of America, at all times relevant to this Complaint.

5. Defendant Aaron Burr ["Burr"], who is a natural person having been born on 00 0000 0000, was alleged to be a tenant-at-will at 00 BBBBBB Street, XXXXXX, County, Massachusetts, at all times relevant to this Complaint. Burr was between residences at 1111 222222222 Road, RRRRRR, New York, 12345, United States of America, and 00 OOOOOOO Road, YYYYYY, County, Massachusetts, United States of America. Burr was also the named Complainant in the XXXXXX Police Incident Report.

6. Defendant Officer Bill,  who is a natural person and the named Complainant in the Criminal Complaint, Docket Number 0000CR000000 in XXXXXX Municipal Court, was a resident of XXXXXX, County, Massachusetts, United States of America, and a duly-appointed police officer in the XXXXXX Police Department, with Officer ID number 80000000 at all times relevant to this Complaint.

7. Defendant Ed who is a natural person, was a resident of XXXXXX,  County, Massachusetts, United States of America, and a duly-appointed police officer in the XXXXXX Police Department, with Officer ID number 8000000, at all times relevant to this Complaint.

8. Defendant City of XXXXXX is a Municipal Corporation, organized under the laws of the Commonwealth of Massachusetts. It is responsible for the policies, procedures, and practices implemented through its various agencies, agents, departments, and employees, and for injury occasioned thereby. It was also the public employer of Defendants Officer Bill, Officer Ed, and Buffalo Bill at all times relevant to this Complaint. 

9. Defendant Buffalo Bill Massachusetts, United States of America, and the duly-appointed Police Commissioner of the City of XXXXXX, Massachusetts, at all times relevant to this Complaint. He is and has been responsible for the promulgation and implementation of police policies, procedures, and practices in the City of XXXXXX. He is also responsibile for the XXXXXX Police Academy, or Citizens 
Police Academy, which is housed at the Deputy Superintendent XXXX  Law Enforcement Training Center.

10. Defendant John Doe and others not presently known to the plaintiff were, at all times material to this Complaint, duly appointed City-of-XXXXXX police officers of unknown rank and supervisors of Officer Bill and Officer Ed. 

11. Plaintiff sues all public employees in their official and individual capacities. 

12. At all times material to this Complaint, Defendants Officer Bill, Officer Ed, Buffalo Bill, and John Does acted toward plaintiff under color of the statutes, ordinances, customs, and usage of the State of Massachusetts, City of XXXXXX, and the XXXXXX Police Department. 

13. Defendant Jane Doe is an attorney who is an as-yet unnamed co-conspirator.
 

FACTS

14. Defendant Pocahontas Smith sued for divorce on  00 Month 1999. 

15. On that same day, Pocahontas obtained a temporary restraining order pursuant to M.G.L. c. 209A. The order restrained Smith from using the couple's real property, held as tenants by the entirety, at 00 BBBBBB Street in XXXXXX. The order expired on 00 Month 2000.

16. During the summer 2000, Pocahontas was allowed by the Probate & Family Court to remove the children from Massachusetts and move to Maine. 

17. During 2000, Pocahontas emptied the condominium of all furnishings. (Pocahontas changed the lock sometime between 1999 and 2001).

18. On 3 January 2001, Smith gained access to the condominium and changed the lock.

19. On 4 January 2001, Pocahontas gained access to the condominium and changed the lock and took out another 209A restraining order. That second order was not served until after the events in this Complaint.1

1There are, however, Probate Court orders which evidence that that court 
has been misled by Pocahontas and her counsel to believe that the 209A order was 
served by an "appropriate law-enforcement officer."
20. On 5 January 2001, while trying to gain access to the condominium, Smith learned that Burr was inside the condominium [Exh. A, p. 1, line 2].

21. Both Burr and Pocahontas called and summonsed the XXXXXX Police Department to remove Smith from the property [Exh. A, p. 1, line 8 and p. 2, lines 18-21]. See also note 11, infra

22. Smith was arrested and imprisoned and strip-searched.

23. On 5 January 2001, charges, as set forth in paragraph 55 below, were levied against Smith.

24. On 30 April 2001, all four charges against Smith were dismissed.

COUNT 1: VIOLATIONS OF 42 U.S.C. 1983: ARREST

25. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 24 above with the same force and effect as if herein set forth.

26. At all times relevant herein, the conduct of all Defendants were subject to 42 U.S.C. secs. 1983, 1985, 1986, and 1988.

27. Acting under the color of law, Defendants worked a denial of Smith's rights, privileges or immunities secured by the United States Constitution or by Federal law, 2 to wit, 

2 Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989). 
(a) by depriving Smith of his liberty without due process of law, by taking him into custody and holding him there against his will,3
  3 County of Sacramento v. Lewis. 523 U.S. 833 (1998); Youngberg v. Romeo
457 U.S. 307, 315 (1982); Williams v. Hartman, 413 Mass, 398, 403 (1992).


(b) by making an unreasonable search and seizure of his property without due process of law, 

(c) by conspiring for the purpose of impeding and hindering the due course of justice, with intent to deny Smith equal protection of laws,

(d) by refusing or neglecting to prevent such deprivations and denials to plaintiff, thereby depriving plaintiff of his rights, privileges, and immunities as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.4

4  Miga v. Holyoke, 398 Mass. 343, 349, 350 (1986) (deprivation of pretrial detainee's substantive due process rights where state seeks to impose punishment without a constitutional adjudication of guilt).  Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979).
28. Smith incorporates the attached Exhibits A and B into this Complaint by reference as if set forth herein.

29. On 5 January 2001, Defendants Officer Bill and Officer Ed entered 00 BBBBBB Street. 

30. Both officers then spoke to Smith and Burr in person.

31. Pocahontas told Burr that Smith had no right to be at the condominium property at 00 BBBBBB Street. 

32. Burr told the officers that Smith had no legal rights to be at 00 BBBBBB Street[Exh. A, p. 2, line 7]. 

33. On 24 April 2001, Pocahontas testified in Probate & Family Court that the court had given her the use of the condominium [Exh. B, p. 129, lines 18-19]. 

34. Shortly thereafter, Pocahontas's divorce counsel informed the court that she had in her pleadings file no order giving Pocahontas the exclusive use and occupancy of the BBBBBBB Street condominium [Exh. B, p. 157, lines 11-23] and that she believed it was but a perception of hers, Smith's former counsel, and the court that Pocahontas was given exclusive use of the condo [Exh. B, p. 158, lines 1-9]. 

35. Two days later, on 26 April 2001, the court corrected her earlier declaration that there had been an order giving Pocahontas exclusive use and occupancy, apologized to Smith's counsel for doubting her when counsel told the court she had not seen such an order [Exh. B, p. 201, lines 1-9 through p. 202, line 8]. 

36. Officer Bill entered the condominium and spoke to Pocahontas by phone. Pocahontas told Officer Bill that she had a current restraining order [Exh. A, p. 5 lines 1-3; Exh. B, p. 135, lines 3-8], but that it had not then yet been served on Smith [Exh. B, p. 136, lines 21-22]. 

37. After Officer Bill asked him when the original restraining order ran out, Smith answered "December 13th [Exh. A, p. 2, line 25--p. 3, line 1].

38. Burr told Officer Bill that Pocahontas had filed a new restraining order the day before (January 4th) [Exh. A, p. 3, lines 23-25].

39. Smith showed Officer Ed Pocahontas's Maine address, his deed to the property, and the expired restraining order [Exh. A, p. 3, lines 15-18].

40. Smith told the officers that he wanted to see Burr's "lease or something along those lines" [Exh. A, p. 3, lines 23-25].

41. Officer Bill told Officer Ed that Pocahontas had a current restraining order but that it had not been served on the plaintiff [Exh. A, p. 5, lines 2-3].

42. Then Officer Ed handcuffed Smith [Exh. A, p. 5 lines 5-6].

43. One officer told the other officer that Smith had drilled the lock that day [Exh. A, p. 5, lines 14-15].

44. Officer Ed searched Smith's bag [Exh. A, p. 5, line 21] and took his drill. 

45. Officer Ed ignored Smith's denial that he had been drilling [Exh. A, p. 5, lines 23-24].

46. Officer Ed also told Smith, "you're really not suppose to be here" [Exh. A, p. 5, lines 24-25].

47. Smith told the officer that Pocahontas no longer lived at the BBBBBB Street property, and was living in Maine [Exh. A, p. 6, lines 1-2].

48. Officer Ed told Smith that he was not arresting him for violating a restraining order [Exh. A, p. 9, line 7], but that was untrue -- given that "attempting to violate a 209A" and "violation of a 209A order" were two of the four charges levied against Smith. [See paragraph 55 below, where the charges are set out].

49. Officer Ed told him he was being arrested for trying "to gain entry" into his own home [Exh. A, p. 9, lines 11-12]. 

50. Next both officers led Smith handcuffed and put him into the patrol car and drove him to the XXXXXX Police Area X station on MMMMMMMMM Street in XXXXXX.

51. At the station, Smith was uncuffed, told to present his wallet, which had $1312 in it [Exh. A, p. 9, lines 15-16], and booked. 

52. Defendant Officer Ed told Smith that his belongings would "go right up to court with [him]" [Exh. A, p. 9, lines 24-25]. 

53. At no time, either in the common hallway to his condominium or at any later time and place, did Smith attempt to resist arrest or offer violence to them.

54. Plaintiff was received at the lock-up on 5 January 2001, and was given neither breakfast nor lunch.

55. Defendant Officer Bill swore out and signed the Complaint against plaintiff, alleging that Smith (a) maliciously destroyed property (the lock attached to Smith's real property), (b) had possession of burglarious tools (Smith's drill), (c) attempted to violate a 209A and (d) violated a 209A order. 

56. In the afternoon, Smith was taken in handcuffs and foot shackles to a paddy wagon for transport to XXXXXX Municipal Court. 

57. Around 3 o'clock, Smith was charged as set out in paragraph 55 above, but was unable to post a $500 cash bond because the officers had failed to bring Smith's wallet to court. 

58. Around 3:30 P.M., plaintiff, handcuffed to two other detainees, was transported from the XXXXXX Municipal Court to a County jail on Nashua Street, put into a holding area with other detainees, strip-searched, given prison garb, and remained in jail until he was bailed out by a friend around 9:30 in the evening.

59. Smith had to appear in XXXXXX Municipal Court three more times. 

60. On 30 April 2001, all four charges were dismissed.

61. Defendants City of XXXXXX, Buffalo Bill, and the XXXXXX Police Department negligently trained Defendants Officer Bill and Officer Ed.

62. Officer Bill and Officer Ed had an ulterior motive, namely, personal financial benefit, for arresting Smith and charging him with crimes he had not committed.

63. Pocahontas had the improper purpose of trying to gain an advantage in her and plaintiff's divorce action and to unlawfully deprive Smith of his property and liberty.

64. Burr's purpose was to aid and abet his step-sister in the divorce action, to benefit himself from a reasonable, if not free, living space, and to deprive Smith of his property and liberty. 

65. There was no warrant for the arrest of plaintiff on 5 January 2001 by the Officer Bill and Officer Ed. The arrest was without reasonable grounds for said Defendants to believe Smith had committed an offense and Defendants knew they were without probable cause to arrest Smith. 

66. No complaint, information, or indictment was ever sworn against Smith alleging offenses occurring prior to the moment Defendant Officer Ed handcuffed Smith and told him he was under arrest.

67. As a result of their concerted unlawful and malicious arrest by Defendants Officer Bill and Officer Ed, and Smith was deprived of both his liberty without due process of law and his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983. 

WHEREFORE, Plaintiff demands judgment for the false arrest against all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages5 in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 

5 "Punitive damages are recoverable in sec. 1983 suit where defendant's conduct is motivated by an evil motive or intent, or where it involves reckless or callous indifference to plaintiff's federally protected rights). Smith v. Wade, 461 U.S. 30, 50-51 ((1983); Clark v. Taylor, 710 F.2d 4, 14 (1st Cir. 1983).  Miga, supra at 355


COUNT 2: VIOLATIONS OF 42 U.S.C. 1983: DETENTION AND CONFINEMENT

68. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 67 above with the same force and effect as if herein set forth.

69. As a result of their concerted unlawful and malicious detention and confinement of Smith, Defendants Officer Bill and Officer Ed deprived Smith of both his right to his liberty without due process of law and his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983. 

WHEREFORE, Plaintiff demands judgment for the false detention and confinement against all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 

COUNT 3: VIOLATIONS OF 42 U.S.C. 1983: STRIP SEARCH

70. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 69 above with the same force and effect as if herein set forth.

71. As a result of their concerted unlawful and malicious arrest, detention, and confinement of Smith, Defendants Officer Bill and Officer Ed caused Smith to be subjected in the NNNNN Street County jail to a strip search of his body, including his rectal cavity, in a situation where there was no reason to believe that weapons or contraband had been concealed on or in his body, and thus deprived Smith of both his right to liberty without due process of law and his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fourth, Fifth, Ninth, and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983. 

WHEREFORE, Plaintiff demands judgment for the bodily strip search against all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 

COUNT 4: VIOLATIONS OF 42 U.S.C. 1983: CONSPIRACY

72. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 71 above with the same force and effect as if herein set forth.

73. As a result of their concerted unlawful and malicious conspiracy of Defendants Pocahontas Smith, Aaron Burr, Officer Bill and Officer Ed, Smith was deprived of both his liberty without due process of law and his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983 and 1985. 

WHEREFORE, Plaintiff demands judgment for the conspiracy against all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 

COUNT 5: VIOLATIONS OF 42 U.S.C. 1983:
REFUSING OR NEGLECTING TO PREVENT

74. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 73 above with the same force and effect as if herein set forth.

75. At all times relevant to this Complaint, Defendants Officer Bill and Officer Ed as police officers of the XXXXXX Police Department were acting under the direction and control of Defendant Buffalo Bill, John Does, and Defendant City of XXXXXX.

76. Acting under color of law and pursuant to official policy or custom, Buffalo Bill, John Does, and the City of XXXXXX knowingly, recklessly, or with gross negligence failed 
to instruct, supervise, control, and discipline on a continuing basis Defendant police officers in their duties to refrain from:

(a) unlawfully and maliciously harassing a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities, 

(b) unlawfully and maliciously arresting, imprisoning and prosecuting a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities, 

(c) conspiring to violate the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution and laws of the United States and the laws of the Commonwealth of Massachusetts; and

(d) otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities.

77. Defendants Buffalo Bill and John Does and the City of XXXXXX had knowledge or, had they diligently exercised that duties to instruct, supervise, control, and discipline on a continuing basis, should have had knowledge that the wrongs conspired to be done, as heretofore alleged, were about to be committed. Defendants Buffalo Bill and John Does and the City of XXXXXX had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable diligence, and knowingly, recklessly, or with gross negligence failed or refused to do so.

78. Defendants Buffalo Bill and John Does and the City of XXXXXX directly or indirectly, under color of law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of Defendant police officers heretofore described.

79. As a direct and proximate cause of the negligent and intentional acts of Defendants Buffalo Bill and John Does and the City of XXXXXX as set forth in paragraphs 76-78 above, Plaintiff suffered physical injury, loss of income, and severe mental anguish in connection with the deprivation of his constitutional and statutory rights guaranteed by the Fifth and Fourteenth Amendments of the Constitution of the United States and protected by 42 U.S.C. sec. 1983.

WHEREFORE, Plaintiff demands judgment against all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 

COUNT 6: MALICIOUS PROSECUTION

80. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 79 above with the same force and effect as if herein set forth.

81. Defendants instituted criminal process against the plaintiff with malice:

(a) Pocahontas Smith and Aaron Burr played an active part in the initiation of the criminal proceedings; 

(b) Jane Doe played an indirect role by advising Pocahontas how to keep Smith out of the condominium after the original 209A temporary restraining order had expired;

(c) Officer Ed played an active part in the initiation of the criminal proceedings as Defendant Officer Bill's partner by arresting and causing the false imprisonment of Smith; and 

(d) Officer Bill signed the criminal complaint against Smith.

82. The charges were not based upon probable cause, that is the state of the facts in the mind of the prosecutor would not lead a man of ordinary caution and prudence to believe, or entertain an honest or strong suspicion that Smith was guilty.6 6 Carroll v. Gillespie, 14 Mass.App.Ct. 12, 19 (1982), cites omitted. Morreale v. DeZotell, 10 Mass.App.Ct. 281, 282 (1980);  Nolan & Sartorio, 37 M.P.S., Torts, sec. 79, pg. 96 (2d ed. 1989 & 1993 Supp.).

(a) Defendants Officer Bill and Officer Ed had a duty to ascertain whether there was reasonable and probable cause for a prosecution,7 to wit, knowing that 
Smith was on the deed to the real property, Defendants Officer Bill and Officer 
Ed had a duty to ascertain whether Pocahontas had an order giving her exclusive use and occupancy of the property;8

7   Carroll v. Gillespie, 14 Mass.App.Ct. 12, 18 (1982).

8

[I]nformation known to be [] sufficiently unreliable or incomplete to support a finding that it was unreasonable to rely upon it without additional information. See Griffin v.Dearborn, 210 Mass. 308, 313 (1911) (where defendant knew that his horse was taken by G's minor son, and did not know whether the son did so, as the son claimed, on order from G, (t)he defendant's immediate prosecution of the son without any precedent investigation" could be found to lack reasonable grounds); Smith v. Eliot Sav. Bank, 355 Mass. at 548, (where defendant bank failed to pursue information as to whereabouts of S, in whose name unauthorized withdrawals were made, and teller identified the plaintiff as forger seven months after brief withdrawal transaction, jury could have found that identification was "so suspect that a 'man of ordinary caution and prudence' would not have relied upon it," quoting from Bacon v. Towne, 4 Cush. at 239.) 

Carroll v. Gillespie, 14 Mass.App.Ct. at 20-21.  

(b) Defendants Officer Bill and Officer Ed breached their duty;

(c) Defendants Officer Bill and Officer Ed had information that a 209A order had not been served on Smith; they had a duty to ascertain the status of that 209A 
and failed that duty;

(d) Pocahontas recklessly made categorical statements to Officer Officer Bill accusing the plaintiff of violating a court order by his presence at his home on BBBBBB Street and those statements resulted in Smith's arrest.9

9 It is established in a related context that an individual's freedom of movement cannot
be subject to the "'honest ... suspicion' of a
shopkeeper ... (acting) on his own
'inarticulate hunches.'" Coblyn
v. Kennedy's, Inc., 359 Mass. at 325 (false arrest). 

Carroll v. Gillespie, 14 Mass.App.Ct. at 24-25.

(e) Pocahontas instigated or participated in the prosecution by pressing police 
to arrest and apply for a complaint for an improper purpose10,11
  10Conway v. Smerling, 37 Mass.App.Ct. 1, 3 (1994) ("Although distinct from thetort of abuse of process, see Bednarz v. Bednarz,[] 27 Mass.App.Ct. [668], 669, 673, there is in malicious prosecution the common ingredient of an improperpurpose, i.e., using court proceedings primarily to gain a private advantage,
because of hostility and ill will, and without belief by the accuser in the guilt of the accused. Restatement (Second) of Torts sec. 668 comments c-g").

11 Upon receiving Burr's phonecall from BBBBBB Street in XXXXXX, Pocahontas  instantaneously phoned the XXXXXX police from Maine, which means that she could not have simply dialed 911 -- as Burr did at 5:37 A.M. -- but some other number which Pocahontas evidently had at her fingertips, literally.

(f) Burr instigated or participated in the prosecution by pressing police to apply for a complaint for an improper purpose.
83. The criminal proceeding terminated in favor of the plaintiff when the assistant district attorney recommended the dismissal of all four charges against Smith and the court accepted the recommendation and dismissed the charges against Smith.12
12Correllas v. Viveiros, 410 Mass. 314, 318 (1991). "A dismissal of a criminal complaint by the court . . . entered by a district attorney satisfies the requirement that the criminal prosecution has been terminated in favor of the plaintiff." Sarvis v.XXXXXX Safe Deposit and Trust Co., 1994 WL 879797 (Mass.Super. 1994), citing Wynne v.Rosen, 391 Mass. 797, 800 (1984). 
84. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

<>WHEREFORE, Plaintiff Smith demands judgment against all Defendants for injunctive relief and actual, special, compensatory damages in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 7: MALICIOUS ABUSE OF PROCESS

85. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 84 above with the same force and effect as if herein set forth.

86. Defendants maliciously used a "legal process `to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.'"13

13Carroll v. Gillespie. 14 Mass.App.Ct. 12, 26 (1982), quoting Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975), quoting from Quaranto v. Silverman, 345 Mass. [423,] 426 (1963). 
87. On 25 December 2000, Smith wrote Jane Doe reminding her that the original 209A temporary restraining order had expired and requested the key to the condominium and the parking pass.

88. Jane Doe advised Pocahontas how to keep Smith out of the condominium after the original 209A temporary restraining order had expired.

89. Pocahontas knew that the complaint initiated was groundless and made misrepresentations to the officers to gain advantage in her divorce.14

14 
A person may be liable for false imprisonment not only when the person's own acts directly impose a restraint upon the liberty of another but also when that person, by providing false information, causes such restraint to be imposed. Karjavainen v. Buswell, 289 Mass. 419, 427 (1935) (questioned on other grounds by Mezullo v. Maletz, 331 Mass. 233, 239-240 [1954]). Restatement (Second) of Torts s 37 (1965) ("If an act is done with the intent to confine another, and such act is the legal cause of confinement to another, it is immaterial whether the act directly or indirectly causes the confinement.)
Sarvis v. XXXXXX Safe Deposit and Trust Co., 47 Mass.App.Ct. 86, 97-98 (1999).
90. Aaron Burr knew or should have known that the complaint was groundless and he sought to use the process for an ulterior purpose, including, but not limited to, the purpose of aiding his step-sister to gain advantage in her divorce.

91. Defendants Officer Bill and Officer Ed knew or should have known that the complaint initiated was groundless.

92. Defendants Officer Bill and Officer Ed used the legal process with the ulterior purpose, to wit, for personal financial benefit.

93. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

WHEREFORE, Plaintiff Smith demands judgment against all Defendants for injunctive relief and actual, special, compensatory damages, in an amount deemed at time of 
trial to be just, fair, and appropriate.

COUNT 8: VIOLATION OF MASS. CIVIL RIGHTS ACT, 
M.G.L. c. 12, sec. 11I

94. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 93 above with the same force and effect as if herein set forth.

95. At all times relevant herein, the conduct of all Defendants were subject to the Massachusetts Civil Rights Act. 

96. Defendants Pocahontas Smith, Aaron Burr, Officer Bill, and Officer Ed, and Jane Doe interfered with or attempted to interfere by threats, intimidation,15 or coercion with Plaintiff's exercise and enjoyment of his rights -- e.g., his rights to his liberty, his right to occupy his real property, to wit, his home, at 00 BBBBBB Street in XXXXXX, and his right to due process -- secured by the state and federal constitutions or laws of the United States and/or the Commonwealth of Massachusetts.16

15 "Under the MCRA, a `[t]hreat'. . . involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm. `Intimidation' involves putting in fear for the purpose of compelling or deterring conduct. . . . [c]oerion [is] `the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.'" Sarvis v. XXXXXX Safe Deposit & Trust Co. 47 Mass.App.Ct. 86 (1999) quoting Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert. denied 513 U.S. 868 (1994). 
There must also be evidence of "actual or potential physical confrontations involving a threat of harm," id. at 473 n. 8, though the confrontation may involve third persons and the threat of harm need not be directed at the plaintiff. See Redgrave v. XXXXXX Symphony Orchestra, 399 Mass. at 100-101 (potential physical harm to audience and orchestra members by third persons protesting plaintiff's political views is a confrontation within the MCRA). A plaintiff is not required to prove a specific intent to threaten, intimidate, or coerce for the purpose of interfering with a secured right. Id. at 99-100. 
16Rogan v. Menino, 973 F.Supp. 72, 77 (D.Mass. 1997).
97. Thus, under color of state, Smith's liberty was threatened, and he was intimidated and coerced into not enforcing his right to living in his home. 

98. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

99. As a direct and proximate result of the conduct of the Defendants, Smith was intimidated and put in continuing anxiety and has suffered damages including but not limited to the aforesaid damages. 

WHEREFORE, Plaintiff Smith demands judgment against Defendants for injunctive relief and actual, special, compensatory and punitive damages, and attorney's fees 
and costs of the litigation in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 9: FALSE ARREST AND IMPRISONMENT

100. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 99 above with the same force and effect as if herein set forth.

101. At all times relevant herein, (a) the Defendants acted with the intention of confining Smith within fixed boundaries, (b) the act directly or indirectly resulted in confinement, and (c) Smith was conscious of the confinement.17

17 Restatement (Second) Torts, sec. 35; see Foley v. Polaroid Corp., 400 Mass. 82, 89-92 (1987); Nolan & Sartorio, 37 M.P.S. Torts, sec. 16, p. 16 (2d ed. 1989 and 1993) Supp.
102. Defendants Officer Bill and Officer Ed imposed by force or threats an unlawful restraint upon his freedom of movement, to wit by arresting and handcuffing his hands behind his back, transporting him to the Area X police station where he was detained in a cell.18
18 Simpson and Alperin, Summary of Basic Law, secs. 1841. 
103. Then, under the color of state law, Officer Bill and Officer Ed, by not sending his wallet to the court along with him, indirectly caused the unlawful imprisonment and consequential strip-search of Smith in the County jail. 

104. As a direct and proximate result of the conduct of the Defendants, Smith suffered harm and damages including but not limited to the aforesaid damages. 

105. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

WHEREFORE, Plaintiff demands judgment against all Defendants for injunctive relief and actual, special, compensatory damages, attorneys' fees and costs of the litigation 
in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 10: ASSAULT

106. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 105 above with the same force and effect as if herein set forth.

107. Smith is a reasonable person.

108. Defendant Officer Ed intentionally created an apprehension of immediate physical harm by means of an overt gesture, to wit, kicking Smith's cell in Area X police station to awaken the sleeping Smith and startle him for no known purpose other than to create in Smith an apprehension of immediate physical harm.19

19 Nolan & Sartorio, 37 M.P.S., Torts, sec. 12, p. 6 (2d ed. 1989 and 1993) Supp.); Restatement (Second) Torts, sec. 21. 
109. Any reasonable person would also become apprehensive in the face of defendants' threatening conduct.

110. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

WHEREFORE, Plaintiff demands judgment against Defendants Officer Ed, City of XXXXXX, and Buffalo Bill for injunctive relief and actual, special, and compensatory damages in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 11: BATTERY

111. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 110 above with the same force and effect as if herein set forth.

112. Without the consent of Smith, Defendants Officer Bill and Officer Ed intentionally, harmfully, and offensively touched Smith by handcuffing him.20

20Waters v. Blackshear, 412 Mass. 589, 590-591 (1992).
113. Without the consent of Smith, Defendants Officer Bill and Officer Ed indirectly caused Officer YYYY to intentionally, harmfully, and offensively touch Smith when chaining and shackling Smith in the police station.

114. Without the consent of Smith, Defendants Officer Bill and Officer Ed indirectly caused an unknown corrections officer at the XXXXXX Street County jail to intentionally, harmfully, and offensively touch Smith when strip-searching, including a search of his bodily cavities.

115. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

WHEREFORE, Plaintiff demands judgment against Defendants Officer Bill and Officer Ed for injunctive relief and actual, special, and compensatory damages in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 12: CONSPIRACY

116. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 115 above with the same force and effect as if herein set forth.

117. All the Defendants (a) had an object to be accomplished; (b) had an agreement on the object or course of action; (c) performed one or more unlawful overt acts; and (d) caused Smith damages that were a direct result of those acts. 

118. In furtherance of their object, defendants did two or more overt acts against the plaintiffs. Those unlawful overt acts include, but are not limited to, the following:

(a) Jane Doe advised and strategized with Pocahontas about how to keep Smith out of the condominium after the original 209A temporary restraining order had expired;

(b) Pocahontas intentionally misrepresented that she had exclusive use and occupancy of the real property located at 00 BBBBBB Street, XXXXXX, as demonstrated by her having taken out a temporary restraining order pursuant to M.G.L. c. 209 on Thursday, 4 January 2001;21

21 A later fabrication by Pocahontas was that she took out the 209A because she feared that Smith would do something to Defendant Aaron Burr. If that were the case, to wit, that Burr was afraid, Burr could have taken out his own 209A against Smith or Pocahontas could have included Burr's name on the 209A and she did not. [Transcript of hearing on 24 April 2001, page 137.]

(c) Officer Bill and Officer Ed knew or should have known that Pocahontas had intentionally misrepresented facts about the use and occupancy;22  
22 Officer Bill and Officer Ed knew or or should have known, because were there such an order restraining Smith from BBBBBB Street, Pocahontas would not have needed a 209A to restrain him.

(d) Pocahontas misrepresented that Smith had a burglarious tool;

(e) Burr represented that Smith was drilling into the door;

(f) Pocahontas, Burr, Officer Bill, and Officer Ed did not see anything drilled;

(g) Officer Bill and Officer Ed knew that Smith's tool was not a burglarious tool; 

(h) Pocahontas, Burr, Officer Bill, and Officer Ed knew that the 209A order had
not been served on Smith;

(i) in concert with Pocahontas's and Burr's representations and misrepresentations, Officer Bill and Officer Ed arrested and detained and confined Smith on the grounds that (i) he had maliciously destroyed property, 
(ii) he was in possession of a burgarious tool, (iii) he attempted to violate a temporary restraining order (209A), and (iv) he violated a temporary restraining order (209A); 

119. The defendants agreed that the object or course of action was to arrest, detain, and confine Smith without probable cause, and maliciously charge and prosecute him with crimes.

120. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

121. Plaintiff suffered harm and damages that are a direct result of those acts. 

WHEREFORE, Plaintiff demands judgment against all Defendants for injunctive relief and actual, special, compensatory and punitive damages, attorney's fees, costs, expenses, and interest in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 13: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

122. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 121 above with the same force and effect as if herein set forth.

123. Defendants intentionally and deliberately inflicted emotional distress on Smith by maliciously prosecuting Smith, or by abusing the lawful process by unlawful purpose, or by violating Smith's constitutional rights, or by falsely arresting and imprisoning the plaintiff, by conspiring against Smith, or by interfering with Smith's state civil rights by threats, coercion, or intimidation, or knew or should have known that emotional distress was the likely result of their conduct.

124. Defendants conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community.

125. The actions of the Defendants were the cause of Smith's distress.

126. Smith is a reasonable man.

127. The emotional distress sustained by Smith was severe and of a nature that no reasonable man could be expected to endure.23

23 Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).
128. As a result of the Defendants' extreme and outrageous conduct, Plaintiff was, is, and, with a high degree of likelihood, will continue to be emotionally distressed due to the intentional exclusion.24
24 "Extreme and outrages conduct is not required if the emotional distress resulted from the commission of another tort. American Velodur Metal, Inc. v. Schinabek. 20 Mass.App.Ct. 460, 470-471 (1985).
129. Defendants City of XXXXXX and Buffalo Bill are liable under the doctrine of respondeat superior.

130. As a result of the Defendants' extreme and outrageous conduct, Smith has 
suffered and will continue to suffer mental pain and anguish, severe emotional trauma, embarrassment, and humiliation.

WHEREFORE, Plaintiff demands judgment, including interest, jointly and severally against Defendants Pocahontas Smith, Aaron Burr, Officer Bill, and Officer Ed, City of XXXXXX, Buffalo Bill and Jane Doe in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.

COUNT 14: RESERVED FOR NEGLIGENCE
(until 6 months after presentment)

131. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 130 above with the same force and effect as if herein set forth.

132. Defendants City of XXXXXX and Police Commissioner Buffalo Bill 25 owed a duty to supervise or train the officers and to take steps to prevent events such as occurred here, to wit, the false arrest and imprisonment and the swearing to charges without probable cause.

25 The XXXXXX Police Academy, or Citizens Police Academy, is housed at the Deputy Superintendent XXXX Law Enforcement Training Center.
133. Defendants Officer Bill and Officer Ed owed a duty to act according to the standard of ordinary care of a police officer, to wit, to conduct a proper investigation, the failure of which was the proximate cause of Smith's injury. 

134. Defendants City of XXXXXX and Police Commissioner Buffalo Bill breached that duty by failing to act as an ordinary police commissioner would act, to wit, by failing to perform his duties and by failing adequately to control and to supervise his officers.

135. As a result of those breaches, which were the proximate causes of Smith's injury, Smith suffered harm and damages.

136. Defendants City of XXXXXX and Buffalo Bill are also liable under the doctrine of respondeat superior.

WHEREFORE, Plaintiff demands judgment against Defendants City of XXXXXX, Officer Bill, and Officer Ed, and Buffalo Bill for injunctive relief and actual, special, compensatory and punitive damages, attorney's fees, costs, expenses, and interest in an amount deemed at time of trial to be just, fair, and appropriate.

COUNT 15: RESERVED FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(until 6 months after presentment)

137. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 136 above with the same force and effect as if herein set forth.

138. Defendants continually negligently inflicted emotional distress on the Plaintiffs. 

139. Defendants had a continuing affirmative duty to perform their professional services in such a manner as not to inflict emotional distress on the Plaintiffs.

140. Defendants breached their duties to the plaintiffs.

141. The plaintiff never interfered with the defendants' obligations under the above-described duties. 

142. Plaintiff suffered not only physical symptomatologies but also, as a consequence of the physical injury, mentally by Defendants' breach of duty.

143. Plaintiff was, is, and, with a high degree of likelihood, will continue to be inflicted with emotional distress due to the negligence of Defendants.

144. Defendants City of XXXXXX and Buffalo Bill are also liable under the doctrine of respondeat superior.

145. As a result of the Defendants' negligent conduct, Smith has suffered and will continue to suffer physical symptomatolo-gies, pain, anguish, severe emotional trauma, embarrassment, and humiliation.

WHEREFORE, Plaintiff demands judgment, including interest, jointly and severally against Defendants Officer Bill, Officer Ed, City of XXXXXX, and Buffalo Bill in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.
 

Respectfully submitted,
JOHN SMITH, 
By his attorney,
16 May 2001                              Barbara C. Johnson
                                                 Barbara C. Johnson, Esq.
                                                 6 Appletree Lane
                                                 Andover, MA 01810-4102
                                                 978-474-0833
 

PLAINTIFF'S VERIFICATION

The undersigned, being duly sworn, deposes and says that I am the Plaintiff herein, and have read the foregoing pleading filed on my behalf, and the facts stated therein are true.

17 May 2001                                    _____________________________
 

Subscribed and sworn to before me, this ___th day of May 2001. 
 

                                                         ______________________________
                                                         Notary Public