#52, Drano Series
Opposition to Motion to Dismiss by Police Commissioner in His Individual Capacity*
The court ALLOWED
the Commissioner's Motion to Dismiss.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTS------------------------------------------------
John Smith, Jr.
Plaintiff CIVIL ACTION:
v.Pocahontas Smith, Esq., in her professional
and individual capacities,
Sean Plumber,
Billy Colorone, in his official and
individual capacities,
Timothy McBroghan, in his official and
individual capacities,
Big City,
Big Honcho, Police Commissioner of
Big City, Mass., in his official
and individual capacities,
John Does,
Jane Doe
Defendants
-----------------------------------------------------------PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS
BY POLICE COMMISSIONER IN HIS INDIVIDUAL CAPACITYNow 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 Police Commissioner Big Honcho ["Honcho"] in his individual capacity.1
1To abate the confusion of opposing counsel as to which counts were brought against the Big City, Honcho, Colorone and McBroghan, Smith states the following: Counts 1-5 (42 U.S.C. 1983), 8 (Mass. Civil Rights Act), 9 (false arrest and imprisonment), against all defendants. Imprisonment is excluded from the waiver of immunity by G.L. c. 258, sec. 10(c), but arrest is not. Counts 6 (malicious prosecution), 7 (abuse of process), and 12 (common-law conspiracy), against all defendants except the Big City and Honcho in his official capacity. Count 10 (assault), against McBroghan and Honcho. Count 11 (battery), against Colorone, McBroghan, and Honcho. Count 13 (intentional infliction of emotional distress), against Colorone, McBroghan, and Honcho. Counts 14 and 15 (negligence and negligent infliction of emotional distress, respectively), are RESERVED, that is, are not to be active until 6 months after presentment. The letter of presentment was sent by certified mail on 8 June 2001). The two counts are against Big City, Honcho (agent for Big City), and Colorone and McBroghan (employees). Claims against Honcho were brought against him in his official and individual capacities.FACTUAL BACKGROUNDThe entire incident of arrest was audiotaped. The transcript is attached to the Verified Complaint.
Defendants Billy Colorone ["Colorone"] or Timothy McBroghan ["McBroghan"] told Smith he was being arrested for trying "to gain entry" [Exh. A, p. 9, lines 11-12]. By the time the officer arrested Smith [Exh. A, p. 5, line 5], one of the officers had seen the deed to the property and therefore knew, or should have known, that Smith was co-owner of the property [Exh. A, p. 4, line 16]. By the time Smith was arrested, the officers knew, or should have known, at the very least from their classes at the police academy, that Smith could not "break and enter" (in the criminal sense) into his own property.
By the time Smith was arrested, the officers knew that there was no valid restraining order on Smith2 or that if there was one, it had not been served [Exh. A, p. 5, line 3; Exh. B, transcript of court testimony, p. 136 and Pocahontas Smith's Motion to Dismiss, pp. 5-6, 16-17].
2 Commonwealth v. Munafo, 45 Mass.App.Ct. 597, 601 (1998), cert. denied, 707 N.E.2d 1078 (1998) (since no judicial authorization to omit service of the complaint in this case, there was no valid restraining order).By the time Smith was arrested, the officers knew, or should have known, at the very least from their classes at the police academy, that the lock in the door was a part of the real estate. By the time Smith was arrested, the officers knew, or should have known, at the very least from their classes at the police academy, that Smith could not maliciously destroy his own property, to wit, the lock in the door.By the time Smith was arrested, the officers knew, or should have known, at the very least from their classes at the police academy, if not from common sense, that the drill which they found in Smith's bag was not a burglarious tool, but simply a drill.
Despite this knowledge or knowledge which they should have had, Defendant Colorone swore out and signed a complaint against Smith charging him with (a) maliciously destroying property (the lock attached to Smith's real property), (b) having possession of burglarious tools (Smith's drill), (c) attempting to violate a 209A (which had not been served) and (d) violating a 209A order (none was valid or effective or operative) [Compl. par. 55].
As Commissioner of the Big City Police Department ["BPD"], Defendant Honcho is responsible for policy and practices of the department, and for such department-related activities as the Big City Police Academy, public relations, programs, services, personnel [Compl. pars. 9, 12], and the compilation of crime statistics for Big City, which are published on the department's website. Unfounded and prior unfounded incidents, such as the incident for which Smith was arrested and imprisoned in January 2001, have been factored out of the final tallies.
The BPD website does not define "unfounded."3 Smith assumes that "unfounded" means incidents where no crime has been committed or where there was no probable cause to arrest. Other definitions are, of course, possible. Smith anticipates learning the definition during discovery.
3 "Unfounded" is defined on the website for internal investigations of allegations against officers, but not for external investigations of crimes.Smith also assumes that Honcho reviews the unfounded incidents and is, thereby, put on continuing notice of all his arrests, including, but not limited to, those arrests without probable cause. Smith anticipates learning during discovery what Honcho does and does not do with the information compiled.Honcho was the ultimate supervisor of Defendants Colorone and McBroghan, the two Big City police officers who arrested and imprisoned Smith and who by their negligence or misfeasance or nonfeasance or intentions or recklessness or deliberate indifference or retaliation (for openly taping the arrest) proximately caused him to be strip-searched and subjected to a visual body cavity search at the Suffolk County Nashua Street Jail.
Prior to the year 1998, Honcho had enacted a policy that only prisoners suspected of carrying contraband or weapons would be strip-searched. In the year 1998, Honcho was put on notice by a suit4 initiated by female pre-arraignment arrestees/detainees complaining that his policy was not being properly executed and that unwarranted strip-searches were violative of their civil rights.
4Ford et al v. Suffolk County, et al, No. 98-11346 (Memorandum re Summary Judgment Against Class) (D.Mass. July 31, 2001) (Gertner, J.), hereafter cited as Ford (Memo, Class).By the time Smith was arrested, Honcho should have taken reasonable steps to assure that the members of his police force would not put arrestees who could not post bail into situations where they, too, would be unlawfully strip-searched. (Smith could and would have posted bail,5 but Colorone and McBroghan failed to send his belongings, including, but not limited to, his wallet along to court with him.)6 [See both Count 1, par. 27, and Count 3, for liability under 42 U.S.C. 1983 for violation of Smith's Fourth and Fourteenth Amendment rights, the Equal Protection Clause].75 Given that Smith is a responsible citizen without any criminal record and "there was no legitimate reason to think that [Smith] would not keep any scheduled court date," the setting of any bail was excessive. Wagenmann v. Adams, 829 F.2d 196, 213 (1st Cir. 1987).Honcho was also responsible (1) for Colorone's and McBroghan's inadequate or negligent training or (2) if their training was not inadequate, for the negligent retention of them on the force, (3) for neglecting to prevent the unconstitutional conduct of Colorone and McBroghan, who were under Honcho' direction and control, and (4) for not protecting Smith's constitutional rights.6 Boston Police Department Rules and Procedures, Rule 318, sec. 8 (F).
7 The conduct of Colorone and McBroghan assured that a strip-search of Smith -- albeit not by the BPD -- would, indeed, occur.
Pocahontas Smith's State of Mind as to Exclusive Use and Possession of the Subject Property, the Locus
On 9 March 2001, Pocahontas Smith, who is a Harvard-Law-School graduate and member of the Massachusetts and State of XXXX bars, testified in Suffolk Probate & Family Court before Judge Nancy M. Gould, "It was my understanding that I was given exclusive use of the condo and he was given exclusive use of 00 Rural Road and just as I had no right to go enter his home today, I didn't believe as I informed him on December 21, 31, I didn't believe he had any right to go there" [Exh. B, transc. 3/9/01, p. 75] and "As I later figured out, it was supplied by the 209A. I thought there had been a separate, separate thing just as there had been for the garage. I thought there had been a separate, a specific separate order entered but the 209A is my continued basis for believing that he did not have a right to go there" [Exh. B, transc. 3/9/01, p. 76]. Roughly six weeks later, when she was being cross-examined, Pocahontas testified that she had use of the condo and that Smith did not: "I said no. The court has given you use of 00 Rural Road and me use of the condo and the parking space." [Exh. B, transc. 4/24/01, p. 129]
Shortly thereafter that same day, Pocahontas's lawyer admitted to the court that she had no "specific" court order giving Pocahontas exclusive use and occupancy of the condo [Exh. B, transc. 4/24/01, p. 157].
Finally, on 5 July 2001, in her Motion to Dismiss, Pocahontas repeats twice the falsehood that Smith had no right to be living in the condo, being "legally barred by a 209A restraining order." [Pocahontas's Mot.Dism. (7/5/01), pp. 12 and 14]. The extremes of her vacillation and manipulation are of some concern: Pocahontas is an officer of the court and held to a higher standard than the average layperson.
STANDARD OF REVIEW
When determining a motion to dismiss a complaint for failure to state a claim, allegations of the complaint, as well as the inferences which may be drawn therefrom in plaintiff's favor, are to be taken as true. Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 321 (1998). Dismissal is not appropriate where Smith is entitled to any form of relief. Id., at 321.
ARGUMENTS
1. Smith's Complaint satisfies the rules of notice pleading.
On pages 4 and 5 of Honcho's Motion to Dismiss the claims against him in his individual capacity, he states that Smith makes no factual allegations against him in his individual capacity. That is inaccurate. See Compl. pars. 9, 11, 12. Further, Smith incorporated by reference all preceding paragraphs into each count of his Complaint.
"Rule 8 . . . requires only that a plaintiff give fair notice of his claim and enough information about its underlying facts to apprise the defendant of the nature of the dispute." Cassell v. Mueller. 1992 Mass.App.Div. 178, 1992 WL 247397 *2 (1992), citing Multi-Technology, Inc. v. Mitchell Mgm. Systems, Inc., 25 Mass.App.Ct. 333, 335 (1988); Republic Floors of New England, Inc. v. Weston Racquet Club, Inc., 25 Mass.App.Ct. 479, 487 (1988). Nader v. Citron, 372 Mass. 96, 104 (1977). And the factual allegations "respecting each material element necessary to sustain recovery under some actionable legal theory" may be set forth either directly or inferentially. American Glue & Resin, Inc. v. Air Products & Chemicals, Inc., 835 F.Supp. 36, 40 (D.Mass. 1993).
This Smith has done.
2. Where Honcho has failed to raise the qualified immunity defense with sufficient particularity, he has waived the right to that defense.
Defendant Honcho raises a qualified immunity defense but he has failed to raise it with sufficient particularity. That failure constitutes a waiver of the right to raise the defense. McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. (Conn.) 1997), citing Blissett v. Coughlin, 66 F.3d 531, 538-539 (2d Cir. 1995); Buffington v. Baltimore County, 913 F.2d 113, 120-122 (4th Cir. 1990), cert. denied, 499 U.S. 906 (1991); Walsh v. Mellas, 837 F.2d 789, 799-800 (7th Cir.), cert. denied, 486 U.S. 1061 (1988).Further, "qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law,'" McCleary v. Navarro, -- U.S. --, 112 S.Ct. 2324, 2324 (1992), citing Malley v. Briggs, 475 U.S. 335, 343, 341 (1986), quoted in Hunter v. Bryant, 502 U.S. 224, 229 (1991).
3. Where (1) there was an affirmative link between the street-level misconduct and Honcho, (2) there was notice to Honcho, (3) Honcho was deliberately indifferent, and (4) he failed to take easily available measures to address the risk, dismissal of the claims against Honcho in his individual capacity is inappropriate.
A crucial difference exists between liability as master (Respondeat superior) and direct liability. Respondeat superior is a doctrine of vicarious liability based upon public policy the notion that the person who benefits by the acts of the servant must pay for wrongs committed by the servant; the one held liable as master need not be at fault in any way. See Holmes, The History of Agency, 4 Harv.L.Rev. 345 (1882). Under direct liability, plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right.McClelland v. Facteau, 610 F.2d 693, 695 (10th Cir.1979).A. Affirmative Link: To find Colorone and McBroghan's supervisors, Honcho and the John Does, "there must be "an 'affirmative link' between the street-level misconduct and the action, or inaction, of supervisory officials." Gutierrez- Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989), quoting Woodley v. Town of Nantucket, 645 F.Supp. 1369, 1372 (D.Mass. 1986), quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976).
The "affirmative link [must be] through direct participation or through conduct that amounts to condonation or tacit authorization" [Camilo-Robles v. Zapata, 175 F.3d 41, 44, 1999 WL 223051 at *2 (1st Cir. April 20, 1999)] or "supervisory, encouragement, condonation or acquiescence, or gross negligence amounting to deliberate indifference" [Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998) (cite omitted)], or the purposeful disregard of the conduct. Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir. 1999). Essentially, "the plaintiff must show that the supervisor `possessed either the state of mind8 for the particular constitutional violation or deliberate indifference, and . . . played a causal role in plaintiff's constitutional deprivation.'" O'Neill v. Baker et al, 210 F.3d 41, 47 (1st Cir. 2000), quoting 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983, sec. 3:91, at 3-241 (4th ed. 1999).
8 In the context of an arrest, a probable cause analysis does not entail an assessment of an officer's state of mind but of the facts and circumstances confronting him at the time of the act. Maryland v. Macon, 472 U.S. 463, 470-471 (1985). "[P]robable cause is the appropriate standard to apply to strip and visual body cavity searches." Ford (Memo, Class), slip op. at 8, quoting Com. v. Thomas, 429 Mass. 403, 408, 708 N.E.2d 669, 673 (Mass. 1999).B. Notice: Actual knowledge by a supervisor of the unconstitutional conduct is not required. Shabazz v. Cole, 69 F.Supp.2d 177, 203 (D.Mass. 1999). "A supervisor 'may be liable for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or wilful blindness.'" Shabazz, at 203-204, quoting Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.1998), cert. denied, 525 U.S. 1105 (1999).C. Deliberate Indifference: "`[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of the County Com'rs of Bryan County, Oklahoma v. Brown, et al, 520 U.S. 397, 410 (1997), citing Canton v. Harris, 489 U.S. 378 (1989).9
9 Our earlier cases on supervisory liability have stated that a plaintiff must Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989).establish that the supervisor's conduct constituted "gross negligence amounting to deliberate indifference." [Cite omitted.] We believe there is no difference of moment between that standard and one of reckless or callous indifference. [Cites omitted] . . . (discussing different definitions of deliberate indifference); . . . (using standards of reckless disregard and deliberate indifference interchangeably); . . . (equating the two standards); . . . (using both standards as one); . . . (noting distinction between gross negligence -- standing alone -- and recklessness). We see no reason to differentiate in this context between these standards. We hold that indifference that rises to the level of being deliberate, reckless or callous, suffices to establish liability under sec. 1983. "Deliberate indifference, ..., requires the plaintiff to `show (1) a grave risk of harm, (2) the defendant's actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk.'" Shabazz, at 204, quoting Camilo-Robles v. Hoyos, 151 F.3d at 7 (noting that this formulation implies the necessary showing of causation as well as deliberate indifference).
[T]he causal link may be established where "there exists a known history of widespread abuse sufficient to alert a supervisor to ongoing violations." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994); see alsoBraddy v. Florida Department of Labor and Employment Security, 133 F.3d 797, 802 (11th Cir. 1998) (widespread abuse sufficient to alert supervisor exists where deprivations are "'obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences'").Shabazz, at 204.[In the supervisory liability context], liability attaches if a responsible official supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation. [Cites omitted]; cf. Canton v. Harris, 489 U.S. 378, 388-89 (1989) (explicating deliberate indifference standard in a municipal liability setting). Under such a theory, a supervisor may be brought to book even though his actions have not directly abridged someone's rights; it is enough that he has created or overlooked a clear risk of future unlawful action by a lower-echelon actor over whom he had some degree of control.Camilo-Robles v. Zapata, 175 F.3d at 44.4. But for the inadequate or negligent training provided by Honcho and the flagrant practices of the Big City Police Department under Honcho' command, the false arrest would not have occurred, making dismissal of the claims against Honcho in his individual capacity inappropriate.
[T]he fourth amendment creates a right to be free from unreasonable seizure of the person, see, e.g., Pierson v. Ray, 386 U.S. 547 (1967); Monroe v. Pape, 365 U.S. 167 (1961), thereby demanding that arrests be supported by "probable cause." Beck v. Ohio, 379 U.S. 89, 91 (1964).10Wagenmann v. Adams, 829 F.2d 196, 205-206 (1st Cir. 1987).10 "The Massachusetts Supreme Judicial Court has held that the terms `reasonable grounds' and `probable cause' have a virtually identical connotation." Wagenmann, at 206, citing Coblyn [v. Kennedy's, Inc., 359 Mass. 319, 325 (1971).After Smith was arrested because he tried, according to McBroghan, "to gain entry," a charge for "entering" was not filed . . . ostensibly because the arrest was clearly without probable cause: Smith wanted entry to his own home. The arrest was therefore without probable cause and thus false. McBroghan had already told Smith that he was not being arrested because of a 209A: that was self-evident, for both McBroghan and Colorone knew before they arrested Smith that there was no valid or effective 209A in place. And both officers knew that he owned the property and that having the drill in his possession was therefore irrelevant.Therefore the only basis for any probable cause to arrest was whatever Sean Plumber ["Plumber"] and/or Smith's wife, Pocahontas, told the officers. Whatever it was Plumber or Pocahontas told the officers was false.11 In the transcript [Compl., Exh. A, p. 1, line 16], Plumber is heard speaking to the police on a 911 call: "No, he does not." The inference which can be drawn therefrom is that he was telling the police that Smith had no right to be at his home.
11 The issue of falsity is further discussed in Smith's opposition to Plumber and his wife's Motion to Dismiss.Plumber is also heard saying, "He's (inaudible) no legal rights to be here" [Exh. A, transc. p. 2]. Smith contends that Plumber was repeating to Smith what Pocahontas was telling him, to wit, that Smith had "no legal rights to be [t]here."And in the transcript on p. 9, line 8, one police officer is heard saying to Smith, "You're not supposed to be at this residence." That was a false fact.
The officers could have argued that they relied on Pocahontas's and Plumber's representations about Smith not having a right to be at the condo, but the City and the commissioner and the officers did not so rely. The only remaining plausible explanations for the officers' unlawful conduct are (1) their own personal agenda or (2) instructions from their superiors or (3) the lack of training about what to do when probable cause is elusive.
While "[a]n asserted victim of a crime is a reliable informant even though his or her reliability has not theretofore been proven or tested," Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972), cert. denied, 412 U.S. 951 (1973), it is not a per se basis for probable cause. B.C.R. Transp. Co. [v. Fontaine], 727 F.2d [7], 9-10.Lewis v. Kendrick, 944 F.2d 949, 952 (1st Cir. 1991).A. Probable Cause Did Not Exist for the Arrest
To reach a determination that probable cause existed, the ultimate question to be asked is, Could a reasonable officer have thought that Colorone and McBroghan acted in accordance with the Constitution? McCleary v. Navarro, -- U.S. --, 112 S.Ct. 2324, 2324 (1992). Before that question can be answered, there are other questions to be answered first.
Assuming arguendo that Pocahontas told the police that Smith had no right to be at his residence, could a reasonable officer have believed that to be true? Given that the officers already knew that there was no 209A which had taken effect, and that the officers had seen the deed to the residence and knew that Smith was a co-owner of the property, they needed to see a court order which supported Pocahontas and Plumber's position. There was no need to arrest. The officers had reasonable, constitutional alternatives. Not having any reason to believe that Smith would not comply with whatever they asked of him, the officers could have both asked Smith to leave the premises and told him that they had a duty to check if there was a court order.
Given the clearly established rights that Smith had: the right to remain free of false arrest and a right to treat his home as his castle, Colorone and McBroghan did not act in accordance with the Constitution. Smith's rights over which the officers trampled were clear and secure:
In 1604, an English court made the now-famous observation that "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." Semayne's Case, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 (K.B.). . . .Wilson v. Layne, 526 U.S. 603, 609-610 (1999). "[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313 (1972)."[T]he law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of antient Rome.... [ ]" Billy Blackstone, 4 Commentaries on the Laws of England 223 (1765-1769).
Another was, of course, Smith's right to physical integrity, to wit, not to be strip-searched and not to have his body cavities visually inspected where there was no suspicion of his secreting weapons or contraband. See discussion below.
At the time of a warrantless arrest, an officer must have reasonably trustworthy information of facts and circumstances sufficient to warrant a prudent person to believe that the arrestee had committed or was committing a crime. Wagenmann, 829 F.2d at 206. Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992).
"[A] police chief could be held liable if he neglected his duty to train subordinates and establish department procedures." Tuttle v. Oklahoma City, 728 F.2d 456, 460-461 (C.A.Okl., 1984).
5. But for the inadequate or negligent training provided by Honcho and the flagrant practices of the Big City Police Department under Honcho' command, the unlawful imprisonment of Smith would not have occurred, making dismissal of the claims against Honcho in his individual capacity inappropriate.
"`[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and well-being.'" Feliciano v. DuBois, 846 F.Supp. 1033, 1045-1046 (D.Mass. 1994), quoting DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). "The State's duty arises from the `State's affirmative act of restraining the individual's freedom to act on his own behalf.'" Feliciano, I846 F.Supp. at 1046, quoting DeShaney, at 200.
Honcho urges that this court follow Feliciano as to the standard for determining when a government official may be sued in his individual capacity: to wit, that the official must have been "in some manner personally involved in the alleged deprivation of rights." Feliciano, at 1045. [Honcho's brief, p. 4]. That, however, is not where the court in Feliciano left its lengthy discussion. Ultimately, the court wrote that officials would not be shielded from liability for civil damages if their conduct violated the clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 1046-1047, citing Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir. 1993), quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). See also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (to support liability, the unlawfulness of the conduct must have been apparent).
The unlawfulness of Colorone and McBroghan's conduct is apparent: the arrest for allegedly breaking into his own home, the subsequent handcuffing and imprisonment, the failure to deliver Smith's wallet and other belongings to the court so that he could not make bail, assuring that he would be strip-searched in the Nashua Street jail.12 The latter act -- not sending Smith's wallet to court with him -- appears to be not only an act done with the deliberate indifference or wilful blindness of which the court in Camilo-Robles v. Hoyos, infra, wrote, but an act done with the malicious and sadistic intent to cause harm (i.e., to cause Smith to be degraded and humiliated by being strip-searched) of which the court spoke in Foster v. McGrail, 844 F.Supp. 16 (D.Mass.1994). Feliciano, at 1046.13 Another explanation is, of course, that these officers were inadequately or negligently trained and lacked the knowledge to be on their assigned detail, making foreseeable the deprivation of Smith's rights. This is a determination for the jury to make. "[I]nadequate training of subordinates may be a basis for a section 1983 claim against a superior officer." Maldonado-Denis, et al v. Castillo-Rodriguez, et al, 23 F.3d 576, 582 (1994).
1212 On page 9 of Exh. A, one of the officers is heard to say "Oh, yeah, go off to court and then that will go right up to court with you (inaudible)."6. Where Honcho knew that a post-arraignment arrestee would be strip-searched at the County Jail, and he was deliberately indifferent to his police officers not complying with policy, Honcho is personally liable, making dismissal of the claims against him in his individual capacity inappropriate.13 Although the standard used for determining whether to impose individual liability upon a government officer under section 1983 is more rigorous in Feliciano than that used in Hafer v. Melo, 502 U.S. 21, 25 (1991), or even Camilo-Robles, infra, that standard does not appear in any of the cases in the higher courts.
"`[A] strip-search, by its very nature, constitutes an extreme intrusion upon personal privacy as well as an offense to the dignity of the individual.'" Ford et al v. Suffolk County, et al, No. 98-11346 (D.Mass. July 31, 2001) (Gertner, J.), Memorandum re Summary Judgment Against Class Plaintiffs, slip opinion at 3 n. 2, quoting Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996), cited with approval in Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997).
"Strip and visual body cavity searches must be justified by at least a reasonable suspicion that [an] arrestee is concealing contraband or weapons." Swain, 117 F.3d at 6. After Com. v. Thomas, 429 Mass. 403, 408 (1999) ("probable cause is the appropriate standard to apply to strip and visual body convey searches"), the "BPD then adopted a new policy under which probable cause `to believe an arrestee has either contraband or weapons in his or her possession is necessary before a strip-search may be conducted.' BPD Rule 318D." Ford (Memo, Class), supra at 8 n. 10.
Where Honcho knew that post-arraignment arrestees would be strip-searched at the County Jail and that his police officers did not comply with policy, he was deliberately indifferent, and is liable in his individual capacity. See Ford (Memo, Class), supra at 38. Even were it proved that Honcho had a "hands-off" approach, it did "not absolve him of responsibility for unconstitutional policies developed and promulgated by his underlings on his watch." Ford (Memo, Class), at 34 (finding Sheriff Rouse liable for strip-searches after June 1997). By analogy, Honcho could be liable also for the strip-searches after the date of the subcontract.
The court in Ford (Memo, Class), at 38, also found a subcontract between the City and the County, making the Jail employees agents of the City. "As such, the City had an affirmative obligation . . . to ensure that the policy of the Jail officials did not lead to widespread violation of BPD arrestees' constitutional rights." Ford (Memo Class), at 39, citing Ancata v. Prison Health Services, Inc., 769 F.2d 700, 705 n. 9 (11th Cir. 1984) ("[W]here a governmental entity delegates the final authority to make decisions then those decisions necessarily represent official policy"). "`[T]he [City's] duty [to detainees in its care] is non-delegable' [Ford (Memo Class), at 39, quoting Ancata, at 705] and "`although the [County] contracted to perform an obligation owed by the [City], [the City] remains liable for any constitutional deprivations caused by the policies or customs of the [County].'" Id. at 39-40. Accord Young v. Little Rock, 249 F.3d 730 (8th Cir. 2001).
It is inconceivable that Honcho was unaware of the ongoing litigation in Ford (Memo Class) since 1998. Smith suggests that Honcho, therefore, had constructive notice that Smith, a post-arraignment arrestee, would be strip-searched at the County Jail, and that his police officers did not comply with BPD policy.
Where, in the most obvious example, the policymaker sits on his hands after repeated, unlawful acts of subordinate officers and that failure "evidences a 'deliberate indifference' to the rights of [the municipality's] inhabitants," [Canton v. Harris], 489 U.S. at 389, the policy-maker's toleration of the subordinates' behavior establishes a policy-in-practice just as readily attributable to the municipality as the one-act policy-in-practice described above. Such a policy choice may be inferred even without a pattern of acts by subordinate officers, so long as the need for action by the policymaker is so obvious that the failure to act rises to deliberate indifference. Id., at 390, n. 10. Board of County Commissioner of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 418 (1997). Under these circumstances, Honcho was deliberately indifferent, and is culpable in his individual capacity. Id. at 406-407.In sum, "the City had an affirmative duty to monitor conditions for BPD arrestees housed at the Jail" [Ford (Memo Class), at 40] and was deliberately indifferent to the rights of the BPD detainees, under Canton, for failing to monitor adequately the City's search policies and to ensure compliance with minimum constitutional standards. Id. at 41. "The risks posed by the City's `glaring omissions' of oversight are concrete and obvious." Id. at 41, quoting Board of County Com'rs, 520 U.S. at 410. "Those risks are more than sufficient to establish "deliberate indifference" as a matter of law." Id. at 42.
7. Where Honcho' failure to train subordinates, establish department procedures, provide protection for constitutional rights and supervision to correct misconduct of which he has notice, Smith was deprived of his constitutional rights and was injured, making dismissal of the claims against Honcho in his individual capacity inappropriate.
The question then becomes, Is Honcho accountable for the training Colorone and McBroghan should have had? Should they have been trained to a much greater degree than they apparently were, not only trained in the basics they would need to work on domestic-related cases but also in sensitivity training?
"[W]here a failure to train reflects a `deliberate' or `conscious' choice by the municipality [ ], the failure [can] be properly thought of as an actionable city `policy'" and liability can be found." Canton v. Harris et al, 489 U.S. 378, 388-392 (1989) (inadequacy of training may serve as a basis of sec. 1983 liability where failure to train amounts to "deliberate indifference" to constitutional rights of person with whom police may come into contact).
The question as to whether a single incident is adequate evidence to establish liability for inadequate training and supervision was raised in Kibbe v. Springfield, 777 F.2d 801, 804-805, 806, 806 n. 4 (1st Cir. 1985) (one incident involving many officers and three separate shootings and a series of changes between police and civilians), cert. dismissed, 480 U.S. 257 (1987). There the court discussed the reversal in Oklahoma City v. Tuttle, 471 U.S. 808 (1985) -- cited by Honcho -- of the Tenth Circuit's judgment against the police chiefs after a single incident caused by an untrained "bad apple" on the police force.14
14 "The single incident rule is not to be considered as an absolute where the circumstances plainly show a complete lack of training. [ ] [C]oupled with the clearly inadequate training, [this action] demonstrates the City's gross negligence and deliberate indifference to the rights of the decedent." Tuttle v. City of Oklahoma City, 728 F.2d 456, 461 (10th Cir. 1984). Kibbe, 777 F.2d at 806 n. 4. After Kibbe, the First Circuit held:Although holding a single incident insufficient, the court in McClelland v. Facteau, 610 F.2d 693, 696 (10th Cir.1979), reversed in part the summary judgment and remanded the case because the plaintiff's showing was adequate to raise an issue of fact on the sufficiency of notice and failure of the police chiefs to correct the misconduct.
It can not be that an incident that is single only in that it begins and ends within a confined period of time can never give rise to a finding of municipal liability. We agree with the court in Leite v. Providence, 463 F.Supp. 585, 590 (D.R.I. 1978) that a "city's citizens do not have to endure a `pattern' of past police misconduct before they can sue the city under section 1983."
[I]solated instances of unconstitutional activity ordinarily are insufficient to establish a supervisor's policy or custom, or otherwise to show deliberate indifference. . . . By like token, proof of mere negligence, without more, is inadequate to ground supervisory liability. . . . [But] [g]ross negligence can signify deliberate indifference and serve as a basis for supervisory liability if it is causally connected to the actions that work the direct constitutional injury. . . . Hence, inadequate training of subordinates may be a basis for a section 1983 claim against a superior officer. Maldonado-Denis, et al v. Castillo-Rodriguez, et al, 23 F.3d 576, 582-583 (1st Cir. 1994) (cites omitted and emphasis supplied).Given the growing number of domestic-related incidents, the need for training in this area cannot be denied. Clearly the defendant officers in this case were not sufficiently trained to distinguish situations requiring arrest and those not. As shown by the tape transcript attached to the Complaint, the officers, knowing that an old 209A had expired and that a new 209A order had not been served, arrested Smith for entering his own Beacon Hill condo even though the complaining wife was in Maine. Clearly the wife called because of money: after Smith had notified his prior counsel to notify Pocahontas's counsel that he was moving back in -- Pocahontas rented the home, to which her husband had the right of access, ostensibly to keep him from moving back in. There was no danger of imminent harm to anyone and no other reason to arrest.
The officers clearly also had had no knowledge of property law. If their jobs require them to enter a man's castle, they should have had training in fundamental property law. That a man enters his home early in the morning is not probable cause to arrest. That a man has a drill in his possession so that he can complete renovations that he had begun is not the reason to charge the man with being in possession of a burglarious tool. The officers were in the residence. They had opportunity to see on the floor the wood for the window and door trims, and the new insulation exposed because the trimwork had not yet been completed. As a property owner, Smith had the right to attach or unattach whatever he wanted to or from, respectively, the walls, ceilngs, floors, windows, and doors of his property.
Clearly, either the officers had no knowledge of property law or they recklessly disregarded it, and with deliberate indifference arrested Smith because they had become accustomed to accepting what the women say is true and arresting the men in domestic disputes. The arrest of the male might also be a flagrant discriminatory practice of the BPD, thereby depriving the males of the equal protection of all the laws as guaranteed by the state and federal constitutions.
To be resolved by discovery is whether the defendant officers suffered from poor judgment or poor training. Smith suggests poor training. Honcho had the responsibility of properly training those officers for the domestic situations into which they would insinuate themselves. Judging by the officers' performance, Honcho did not meet his responsibility. Given the high profile in our society of domestic-relations issues, Honcho' failure to act was not a result of negligence but deliberate indifference. It was foreseeable that Smith would suffer constitutional deprivations as a result of Honcho' failure to act.
Discovery is needed to properly answer the questions raised by this issue.
8. Where Smith is entitled to discovery, dismissal at this juncture of the claims against Honcho in his individual capacity is inappropriate.
Because discovery is needed to answer some of the questions this fact pattern raises, dismissal is inappropriate. For instance, where a court cannot determine, from the face of the complaint, whether the discretionary function exception applies to the claim, the defendant's theory may be raised by way of motion for summary judgment once the specific nature of the alleged negligence is identified through discovery. Freeman v. Massachusetts Institute of Technology, No. 000204, 2000 WL 1473577 at *3 (Mass.Super. August 14, 2000) (Sosman, J.).
Further, a plaintiff's allegation of a violation of clearly established law precludes dismissal before the commencement of discovery. Anderson v. Creighton, 483 U.S. 635, 640 (1986).
Given that "[n]otice or knowledge of the conduct which was likely to lead to the constitutional violation `is a salient characteristic in determining the existence of supervisory liability'" [Shabazz, at 204, quoting Camilo-Robles, 151 F.3d at 7], the word "unfounded" as used on the BPD website will have significance. What has Honcho done about those incidents which were "unfounded" and which were neither factored into the tallies nor defined for the public to see?
Without knowing that definition and knowing what Honcho did or did not do to cure the repetition of unfounded incidents or to cure false arrests and imprisonments, such as Smith suffered, Smith can only complain that Honcho failed to train and retained the offending officers and that he was deliberately indifferent or wilfully blind to the problem. At the very least, inspection of the syllabus of the Police Academy is needed.
9. Where there is a difference between an intentional tort ("deliberate indifference") and negligence, Smith's claims in Counts 14 and 15 are not barred by M.G.L. c. 258, sec. 10(c).
Given that the acts of which Smith has complained can range from negligent to intentional, he included a count pursuant to the Massachusetts Tort Claims Act. Smith does not quarrel with Defendant Honcho that if his conduct was negligent, his employer, the Big City will be responsible under that Act. Smith sets forth here his argument only because Honcho did not either mention or differentiate between the exceptions to that Act.
For example, "[t]o arrest without probable cause, even though in good faith, could be found negligent." Lewis v. Kendrick, 944 F.2d 949, 953 (1st Cir. 1991). Here, the inadequate training was the result of something more than negligence. Honcho' noncompliance with his strip-search policy was an act of deliberate indifference. See Ford (Memo Class), supra. Other acts, such as the abuse of process, were intentional.
Given that precise definitions are contemplated by the court in determining whether a tort falls within the intentional tort exception to the Massachusetts Tort Claims Act, Smith suggests that the acts complained of are not barred by M.G.L. c. 258, sec. 10(c). Forbush v. Lynn, 35 Mass.App.Ct. 696, 700-702 (1994) (differentiating intentional misconduct and wilful, wanton, and reckless misconduct).
In Doe v. Town of Blandford 402 Mass. 831, 836-838 (1988) (negligent hiring and retention of employee who assaulted plaintiff), the claims were not barred by M.G.L. c. 258, sec. 10(c), where it was the supervisors' conduct, not the employee's intentional conduct, which was the true focus of the case.
"Where an individual is harmed by inappropriate, inadequate or negligent training of police officers, the appropriate remedy lies in a direct suit against either the supervising authority or the municipality under the Massachusetts Tort Claims Act." Com. v. Vaidulas, 433 Mass. 247. 254 (2001), citing Dobos v. Driscoll, 404 Mass. 634, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989). In Dobos, the focus was on the conduct of the supervisory defendants, who knew or should have known of a public employee's assaultive behavior, and not on the intentional conduct of the employee. Thus the claims against the supervisors for Dobos' injuries based on their failure to adequately supervise or discipline the trooper prior to the incident with the motorist were not barred by c. 258, sec. 10(c).
10. Where Honcho' conduct was not discretionary, Smith's claim is not barred by M.G.L. c. 258, sec. 10(b), and governmental liability attaches.
"Discretionary function immunity does not apply in cases in which a government official's actions were mandated by statute or regulation." Brum v. Town of Dartmouth, 428 Mass. 684, 690 (1999).
The first step in determining whether a claim is foreclosed by the discretionary function exception in sec. 10(b)15 is to decide `whether the [government] actor had any discretion to do or not to do what the plaintiff claims caused him harm.' Harry Stoller & Co. v. Lowell, 412 Mass. [139,] 141 [(1992)]. If the actor `had no discretion because a course of conduct was prescribed by a statute, regulation, or established agency practice, a discretionary function exception to governmental liability has no role to play in deciding the case.' Ibid. The second step is to determine whether the discretionary conduct involves policy making or planning, the only type of discretion immunized by [M.G.L. c. 258] sec. 10(b). Ibid. Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 323 (1998) (the town was not immune from liability under the c. 258)."Government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).15 Section 10(b) [of the state Tort CLaims Act] provides in pertinent part that the Act shall not apply to "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused."Brum, 44 Mass.App.Ct. at 323, n. 7.If Honcho conduct was nondiscretionary, i.e., if he had to act, he is not excepted from the Tort Claims Act; that is, the discretionary function exception to immunity cannot protect or shield him from tort liability. Irving v. United States, 162 F.3d 154, 177 (1st Cir. 1998), citing Berkovitz v. United States, 486 U.S. 531, 536 (1988), the seminal case in this area of law.
The so-called discretionary function exception [ ] does not protect all governmental activities involving an element of choice. United States v. Gaubert, 499 U.S. 315, 335 (Scalia, J., concurring), citing Berkovitz, 486 U.S. at 536-37, and Irving, 162 F.3d at 162.Even assuming arguendo that Honcho' conduct was discretionary, i.e., that it involved an element of judgment or choice on his part, Honcho' judgment was not based on political, social, or economic policy. See Irving, 162 F.3d at 173, 180 (dissent, Bownes, by Senior Circuit Judge, and Lipez, Circuit Judge). Congress intended to "protect only governmental actions and decisions based on considerations of public policy." Irving 162 F.3d at 180, citing Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537). "And any discretion [Honcho] might have enjoyed to negligently carry out a commanded [action] `can hardly be said to be grounded in regulatory policy.'" Irving at 180, quoting Gaubert at 325 n. 7.
In sum, if the conduct is discretionary, it might fall under the discretionary function exception or it might not. Shansky, 164 F.3d at 691. Recognizing that all acts in life require some judgment or choice by the actor, it depends on the level and context in which the discretion is at play.16 For instance, in Shansky, Justice Selya, quoting from Berkovitz, 486 U.S. at 545, wrote "discretion involving application of `objective scientific standards' is not policy-based discretion."
16 Honcho fails to state which conduct he contends is shielded by immunity, or which action was a matter of choice for him.11. Where Counts 14 and 15 are place-holders until December 2001, six months after presentment, Honcho' cases based on presentment are irrelevant to Smith's claims in those counts.Smith differentiates his claims against Honcho in his individual capacity from all the claims against individuals brought forward in the cases cited by Honcho.
The first case cited by Honcho is Alex v. Big City Water & Sewer Commission, 45 Mass.App.Ct. 914 (1998), which was dismissed because the plaintiff failed to serve a presentment letter as required by section 4 of M.G.L. c. 258. Alex does not contain the word "negligence" or "negligent."
Although Monahan v. Town of Methuen et al 408 Mass. 381, 392 (1990), held "that a public employee shall not be immune from `any claim arising out of an intentional tort,'" the court dismissed some of the claims of a firefighter who fell from a hose-drying tower in the firehouse and those of his parents, who sued for loss of consortium and emotional distress. The Monahan plaintiffs had several problems: (1) Monahan was able to recover some damages pursuant to M.G.L. c. 41, sec. 100, which provides medical and medically related expenses incurred as natural and proximate result of an accident during employment of a firefighter or police officer. The court reasoned that the legislature did not intend to allow a firefighter to recover under both chapters 41 and 258. (2) Monahan tried to "avoid the consequences of this holding by pursuing his personal injury claim under a contract theory." 408 Mass. at 391. (3) Monahan sued individual defendants for gross negligence. Despite the state Tort Claims Act's silence as to gross negligence, the court equated gross negligence with negligence and barred the actions against the public-employee defendants. 408 Mass. at 392.
In Pruner v. Clerk of the Superior Court in the County of Norfolk, 382 Mass. 309, 313-315 (1981), the Court held that the clerk and his assistant were "public employees" under the Massachusetts Tort Claims Act and not liable for their own negligence, and even if the clerks were "public employers," the plaintiff did not make presentment within the two-year statute of limitations under that Act and was therefore barred.
The Court in Taplin v. Town of Chatham, 390 Mass. 1 (1983), granted immunity to the emergency medical technicians on their negligence claim pursuant to the Massachusetts Tort Claim Act and declined to grant immunity to the employer, Town of Chatham, on that claim.
WHEREFORE, Plaintiff prays Honcho' motion be denied.
27 August 2001 Barbara C. Johnson, Esq.Respectfully submitted,.
PLAINTIFF JOHN SMITH, JR.
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
