#53, Drano Series
Opposition to Motion to Dismiss by City and Police Commissioner in His Official Capacity*
The court ALLOWED in part and DENIED in part
the City's Motion to Dismiss.
Count 5 -- a section 1983 count -- against the City is still alive and well.
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 CITY AND POLICE COMMISSIONER IN HIS OFFICIAL 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 Defendants Big City and Police Commissioner Big Honcho ["Honcho"] in his official capacity.1
1 To abate the confusion of opposing counsel as to which counts were brought against the Big City, Honcho, Colorone, and McBroghan, Smith states the following: FACTUAL BACKGROUNDCounts 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, 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 Boston, Honcho (agent for Boston), and Colorone and McBroghan (employees).
Claims against Honcho have been brought against him in his official and individual capacities.
The Audiotape. The entire incident of arrest was audiotaped. The transcript is attached to the Verified Complaint. The police department has had a copy of the tape since Smith's arrest. The Suffolk district attorney's office has had a copy of it since the office first became involved in the case.
In footnote 2 on page 2 of the Big City and Commissioner Honcho's Motion to Dismiss the claims against the city and Honcho in his official capacity, they state that the conversations were taped without the consent of the police officers, Defendants Billy Colorone ["Colorone"] or Timothy McBroghan ["McBroghan"].
In actual fact, the recorder was being held in Smith's hand. When Defendant Sean Plumber ["Plumber"] consented to the taping of his conversation with Smith, Smith began taping. So the tape was ON when Colorone and McBroghan appeared on the scene. It remained ON. At all times the recorder, which is about 5 inches wide and 2-1/4 inches high and 1 inch deep, was in Smith's hand and visible to the officers.
The Boston Police Incident Report prepared by Colorone reads, on page 3 (emphasis supplied):
McBroghan observed the suspect holding what he thought was a cellphone.
The Incident Report continues:
Further investigation determined that suspect was holding a mini recorder and was secretly recording the officers from the initial call and during the booking procedure.
Smith was not "secretly" recording. The officers simply did not pay attention properly: their observations were faulty. The Incident Report continues:
The suspect was charged with the additional charge of unlawfully using electronic surveillance equipment to secretly record our conversations.
The suspect, then Smith, was not charged with using such equipment. The tape makes it clear that the taping had been ongoing before the officers arrived at the scene. With Plumber's consent, the taping was not unlawful. The Incident Report continues:
All of the burglarious tools and the recording equipment were secured with the area property clerk. The victims sister has applied for a restraining order. The current order expired on 12/13/2000.
The police did, indeed, take the recorder and the tape into their possession. The tools were not burglarious. They were tools for the renovation Smith had begun.Attached to the Criminal Complaint is another version of the Boston Police Department Incident Report. It contains essentially the same information as noted above.
The Arrest Incident. Defendants Colorone and 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].
2Commonwealth 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 Boston 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 (D.Mass. July 31, 2001) (Gertner, J.)
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].7
5 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's direction and control, and (4) for not protecting Smith's constitutional rights.6 Big CityPolice 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 on 5 January 2001, 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
NOTE
Smith incorporates herein by reference his arguments in
PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS
OPPOSITION TO MOTION TO DISMISS BY POLICE COMMISSIONER
BIG HONCHO IN HIS INDIVIDUAL CAPACITY.
It will save court time and resources by diminishing any repetition.1. Smith's Complaint satisfies the rules of notice pleading.
First, Smith does not quarrel with the Big City and Honcho on the law that the theory of respondeat superior does not apply in section 1983 cases, but does quarrel that the same will hold true in Massachusetts Civil Rights Act cases should the Supreme Judicial Court choose to decide the issue. With that said, Smith states the following regarding the issue of notice pleading.
In footnote 3 on page 3 of the Big City and Commissioner Honcho's Motion to Dismiss the claims against the city and Honcho in his official capacity, they state that Smith makes no factual allegations against them in Counts 1-4 and that neither is named as a party against whom relief is sought. That is inaccurate. (1) In the Complaint, when Smith referred to "all Defendants" or "all the Defendants," he was including the City and the Commissioner; (2) those phrases are used in Count 1 and in the "Wherefore" clauses for Counts 1 through 5; (3) in the PARTIES section of the Complaint, the Big City and Honcho (with an abridged description of his responsibilities) are referred to paragraphs 8-12; and (4) the Big City and Honcho are referred to in five factual paragraphs included in Count 5. The references to Big City and Honcho are set out in tabular form in the margin.8
8 Factual paragraphs: 9, 11, 12In Counts 1 through 5, Smith believed and still believes that incorporating Honcho's functions into paragraphs 25, 68, 70, 72, and 74, respectively, are sufficient for notice pleading.
Count 1: s. 1983, Arrest Incorporation of pars. 1-24 [Compl. at 5]
Paragraphs 26, 27 (a-d), 61
Count 2: s. 1983, Detention and confinement
Incorporation of pars. 1-67 [Compl. at 11]
Count 3: s. 1983, Strip Search Incorporation of pars. 1-69 [Compl. at 12]
Count 4: s. 1983, Conspiracy Incorporation of pars. 1-71 [Compl. at 13]
Count 5: s. 1983, Refusing or neglecting to prevent
Incorporation of pars. 1-73 [Compl. at 13] Paragraphs 75-79
Count 2. The incorporation by reference of Honcho's functions into Count 2 makes those functions available to sue on in Count 2. That is, he was responsible for the policies of detention and confinement by which Smith was deprived of his constitutional right to liberty. By putting the Big City and Honcho into the "Wherefore" clause of Count 2, they had notice of that for which they were being sued.
Count 3. It is true that except for (a) incorporating Honcho's functions into paragraph 25 and (b) including the Big City and Honcho in the "Wherefore clause," Smith did not include Honcho and the Big City in Count 3 for the unlawful strip-search which Smith suffered. It was not known until Judge Gertner released on 31 July 2001 that there was a contract and/or subcontract between the City and Suffolk County making the Jail employees agents of the City. Pre- and post-arraignment arrestees or detainees were housed at the Nashua Street County Jail. The latter being those who could not make bail.
As a result of this new information, two-and-a-half months after the Complaint was filed on or around 17 May 2001, Smith shall be filing a Motion for Leave to Amend his Complaint.
Smith has, however, always believed that Colorone and McBroghan wanted him to be — and knew that he would be — strip-searched at the jail.
By putting the Big City and Honcho into the "Wherefore" clause of Count 3, they had notice of that for which they were being sued. But for the failure to control and supervise their officers, Smith would not have been subjected to jail and a strip-search.
Count 4. Although the "Wherefore" clause included the Big City and Honcho, those two entities appeared there inadvertently. Smith has never believed that the Big City or Honcho were involved with the alleged conspiracy. Smith apologizes for any confusion which might have resulted from including them in the "Wherefore" clause.
Further, "Rule 8 . . . requires only that a plaintiff give fair notice of his claim and enough information about it 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 and Big City have failed to raise the qualified immunity defense with sufficient particularity, they have waived the right to that defense.
Defendants Boston and Honcho raise a qualified immunity defense but they have failed to raise it with sufficient particularity. This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
3. Where(1) there was an affirmative link between the street-level misconduct and Honcho and/or the Big City, (2) there was notice to Honcho and/or the Big City,(3) Honcho and/or the Big City were deliberately indifferent, and (4) they failed to take easily available measures to address the risk, dismissal of the section 1983 claims against Honcho in his official capacity and the Big City is inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief. Because there are several acts of which Smith complains, and it is unknown as yet which will be adjudged as having been done in Honcho's individual capacity, or Colorone's individual capacity, or McBroghan individual capacity, or in their respective official capacities, there is an overlap of the law which is applicable to persons in their individual capacities and persons in their official capacities.
Given that there is no respondeat superior in section 1983 claims, Honcho and each of the other defendant public employees are acting on his own and as agent for the Big City. Because the Big City is an amorphous entity, it must always act through an agent. (The City is a "person" under sec. 1983. See discussion, infra.) One might conclude that one act was done in an actor's individual capacity and that another act was done in that actor's official capacity.
Many of the issues regarding policy, custom, and usage are raised by the Big City prematurely. They require the application of the law to the facts. Smith has set forth the facts known to him. They establish a basis for findings of deliberate indifference to several acts by Honcho as an individual and those he took for the City.
Clearly the strip-search policy, contract, and subcontract with Suffolk County have the official imprimatur of the City. Clearly the courses at the police academy have the official imprimatur of the City. The Boston Police Department rules and regulations have the official imprimatur of the City.
Assuming arguendo that Honcho and the officers were acting within the scope of their employment and implementing or executing the official programs and policies in accordance with custom and usage, the City remains on the hook because Smith was unquestionably injured. Camilo-Robles v. Zapata, 175 F.3d 41, 44, 1999 WL 223051 at *2 (1st Cir. April 20, 1999), discussing and citing City of Canton v. Harris, 489 U.S. 378 (1989).
Smith also incorporates herein his argument on the issue of whether a single incident is sufficient to establish a supervisor's policy or custom, or otherwise to show deliberate indifference. He cites Kibbe v. City of Springfield, 777 F.2d 801, 804-805, 806, 806 n. 4 (1st Cir. 1985); City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985); Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I. 1978); and the more recent Maldonado-Denis, et al v. Castillo-Rodriguez, et al, 23 F.3d 576, 582-583 (1st Cir. 1994) for that issue.
The question becomes, Were Smith's injuries caused by the "deliberate indifference" (in any of its many vestiges of clothing) of the defendants when implementating and executing Boston's official programs and policies in accordance with custom and usage? If so, the Big City of Boston remains on the hook. Camilo-Robles v. Zapata, 175 F.3d at 44.
Despite what Smith contends and the evidence attached to Smith's Complaint suggests, namely, that the public defendants acted with deliberate indifference of official policies and programs and Smith's civil rights, the City has given us no reason to believe that its employees have acted outside the scope of their employment in a manner which is deliberately indifferent and contributes to the deprivation of Smith's constitutional civil rights.
The spin put on the facts by the City, the commissioner, and the officers is reminiscent of the Keystone Kops or the Three Stooges vintage comedies. For instance, on page 7 of Boston and Honcho's memorandum is the sentence: "The Plaintiff was arrested for breaking and entering." What is missing is that Smith was never charged with breaking and entering because the elements of the crime were missing from the facts. Or that Colorone and McBroghan saw Smith holding his tape-recorder but thought it was a cellphone, [Boston Police Incident Report, page 3]. That report reveals that Colorone thought Smith would be charged with electronically taping them, but the tape itself reveals that the tape was ON before Colorone and McBroghan appeared at the scene. Or that on line 22 of page 5 of the transcript [Complaint, Exh. A], one can see the word "drilling." That was the creaking of the front door in the vestibule as the officers removed Smith from the building and into the squad car. Smith was already handcuffed with his hands behind his back and Officer McBroghan was already in possession of the drill. The squealing door might very well have been the sound which Plumber heard when Smith came in from the outside.9 A tragi-comedy of errors.
9 On page 8 of Honcho and Boston's Motion to Dismiss, the defendants state "that Plaintiff was drilling, or had drilled, into a residence occupied by Plumber. With all due respect, the facts do not show that. The transcript shows that Colorone is the first person to mention the drill [tscrp. p. 5, line 1-2], and that was when he got off the phone with Pocahontas, Smith's wife. The tragedy is that Smith's version of the facts is correct. He was taken from his castle in cuffs, embarrassed on a public street, further distressed by being put in a holding cell and soon thereafter by being escorted into the courtroom in handcuffs, and finally humiliated by a visual body cavity strip-search. The tragedy is that his wife maliciously set all this in motion, and the Keystone Kops looked forward to earning time-and-a-half for all the time they would waste in court during the prosecution of Smith's case.Both Colorone and Pocahontas have failed to produce an affidavit written under the pains and penalties of perjury swearing that that is, indeed, what Pocahontas told Colorone. Plumber, who Pocahontas says heard "drilling," also did not file an affidavit.
That Honcho and the Big City had notice of this type of motivation for police to make unwarranted arrests. In fact, a list of those officers who earn overtime in this manner is kept by the BPD and is, on occasion, published in Boston newspapers.
Further evidence regarding the roles of the public defendants, and the existing documents evidencing the policies and programs and training complained-of, shall be gathered during discovery should Smith's claims remain viable upon the decision of this court.
4. Where Honcho in his official capacity caused Smith pursuant to "policy or custom" to be deprived of one or more of his constitutional rights, and Honcho is the agent of the Big City, dismissal of the claims against Honcho in his official capacity and the Big City is inappropriate.
This issue is also discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
Smith concurs with Defendants Big City and Honcho that the Court in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), held that municipalities are "persons" subject to damages liability under sec. 1 of the Ku Klux Act of 1871, 42 U.S.C. sec. 1983, for violations of that Act visited by municipal officials" [City of Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985)] and that the "municipal liability could only be imposed for injuries inflicted pursuant to government "policy or custom." Monell, at 694.
In 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, this court found municipal liability for unconstitutional strip-searches. SeeFord at 34. Given the subcontract with the Suffolk County sheriff and the policy of sending defendant/arrestees to the Nashua Street Jail, the municipality was the "moving force" behind some of the deprivations Smith suffered of his constitutional rights. The inadequate or negligent training is another basis for finding that the municipality was a "moving force."
Their continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of that action -- the "deliberate indifference" -- necessary to trigger municipal liability.
Board of the County Com'rs v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 1390 (1997), citing and discussing Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989).
It could be .... that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers.
Board of the County Com'rs, 520 U.S. at 407, citing Canton, at 397. This, Smith contends, is what was happening in his case.
The policymaker'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. 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. Board of the County Com'rs, 520 U.S. at 418, citing Canton, at 390.[W]here a municipality's failure to train its employees ... evidences a `deliberate indifference' to the rights of its inhabitants can ... a shortcoming be ... city `policy or custom' ... actionable under sec. 1983.
Board of the County Com'rs, 520 U.S. at 419, citing Canton, at 389.
"[M]unicipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations ..."
Board of the County Com'rs, 520 U.S. at 407, citing Canton, at 397.
... A municipality may be liable under sec. 1983, see Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658, 688, 694 (1978), but only if the injury is caused by "officials whose acts may fairly be said to be those of the municipality," or if there is a municipal policy or custom that caused the injury. County Commrs. of Bryan County v. Brown, 520 U.S. 397, 403-404 (1997).
Howcroft v. City of Peabody, 51 Mass.App.Ct. 573, 583 n. 15, 2001 WL 521382 *6 (2001).This condition is satisfied here.
5. But for the inadequate or negligent training provided by Honcho and the flagrant practices of the Boston Police Department under Honcho's command, the false arrest would not have occurred, making dismissal of the claims against Honcho in his official capacity and the Big City inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
A. Probable Cause Did Not Exist for the ArrestThis issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
6. But for the inadequate or negligent training provided by Honcho and the flagrant practices of the Boston Police Department under Honcho's command, the unlawful imprisonment of Smith would not have occurred, making dismissal of the claims against Honcho in his official capacity and the Big City inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
7. 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 was responsible for depriving Smith of his constitutional rights, making the Big City liable and dismissal against it inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
A. Affirmative Link
B. Notice
C. Deliberate Indifference
Smith also incorporates herein by reference his arguments on Affirmative Link, Notice, and Deliberate Indifference on pages 7-8 of his Opposition to Honcho's motion to dismiss claims against him in his individual capacity.
8. Where Honcho's 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 official capacity and the Big City inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
Smith also incorporates herein by reference his argument on "Deliberate Indifference" on pages 7-8 of his Opposition to Honcho's motion to dismiss claims against him in his individual capacity.
9. Where Smith is entitled to discovery, dismissal at this juncture of the claims against the Big City and Honcho in his official capacity is inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief. The law cited and/or quoted is applicable regardless of the capacity under which Honcho is being sued.
- 10. Where articles XI and V of the Massachusetts Declaration of Rights require a remedy for all injuries and wrongs and accountability, respectively, and the acts complained-of are constitutional deprivations visited pursuant to both governmental "custom" and governmental "policy," the Big City may be held liable for the acts of its employees, making dismissal of the claims against the Big City and Honcho inappropriate.
a. Liability of Municipalities for Acts of Employees
In support of its motion to dismiss, the City argues that a municipality is not a "person" under Massachusetts Civil Rights Act ["MCRA"] and cannot be held vicariously liable under MCRA for the actions of its employees. Two cases have significance to this argument: Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86 (1999), cert. denied, 430 Mass. 1106 (1999), and Broderick v. Roache, 803 F.Supp. 480, 484-485 (D.Mass. 1992).In Broderick, the District Court acknowledged "no Massachusetts state court had yet addressed the question of vicarious liability under MCRA section 11I" [id. at 484], and predicted that "because the doctrine of respondeat superior does not apply to section 1983 claims" [id.] and "MRCA and section 1983 are parallel statutes" [id.], "a state court would hold respondeat superior inapplicable to claims brought under MCRA as well." Id., citing Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691 (1978).
But the court in Broderick then went on to apply the doctrine of respondeat superior to Broderick's MCRA claim . . . not because the Supreme Judicial Court had noted that MCRA and sec. 1983 were parallel statutes and the Legislature had to have been aware of the existing caselaw when it passed MCRA [Broderick, at 485], but because Broderick had relied on other grounds to argue that "the City should be held directly liable," to wit, he had relied on the "`unconstitutional policy'" prong of Monell." Broderick at 484.
In Monell, the Court found:
Local governing bodies ... can be sued directly under s 1983 ... where ... the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body's officers. Moreover, ... local governments ... by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.
Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. "[T]he Court [also] assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business." Broderick, at 484, quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (citing Owen v. City of Independence, 445 U.S. 622 (1980) and City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)). [FN3]"Defin[ing] more specifically the circumstances in which a single decision might appropriately be considered to establish an unconstitutional policy," [Broderick, at 484], Justice Brennan wrote in Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986):
First, a municipality may be held liable only for acts "which the municipality has officially sanctioned or ordered." Second, a municipality may be held liable only when the decisionmaker "possesses final authority to establish municipal policy with respect to the action ordered." Third, "whether an official ha[s] final policymaking authority is a question of state law." Fourth, in order for municipal liability to attach, the decisionmaker must be the official "responsible for establishing final policy with respect to the subject matter in question."
Broderick, at 484-485 (cites omitted), noting that the four elements were identified and approved in Praprotnik. (Smith notes, in passing, that the facts in his case satisfy all four elements.Thus, the court in Broderick assumed "that the state courts would adopt both the Monell unconstitutional policy theory of municipal liability and the Pembaur elements." Broderick, at 484.10,11
10 "[B]ecause neither Broderick nor the City has addressed the factual questions raised by the Pembaur elements, it would be inappropriate to grant the City's motion for summary judgment on this ground." Broderick at 485. In Sarvis, the Appeals Court held that:11 The Broderick court also pondered about "whether the Rodriques [v. Furtado, 410 Mass. 878, 889 n. 14 (1991)] court was referring to the Monell standard of municipal liability for unconstitutional policies, to the Monell standard of causation, or to the Monell standard concerning which officials may by their actions subject municipalities to liability," but concluded that the Rodriques court was "contemplat[ing] direct municipal liability predicated upon the actions of a city employee" when it stated that "`[t]here is no evidence in the record that the city, directly or indirectly through Furtado, threatened, intimidated, or coerced the plaintiff.'" Broderick, at 485 n. 4, quoting Rodriques, 410 Mass. at 889.
[A] corporation may be held vicariously liable for the crimes of its agents acting on its behalf and in the scope of their employment. . . . It also "may be held vicariously liable for the intentional tort of an agent ... committed within the scope of employment. . . . A corporation may be held vicariously liable under G.L. c. 93A for the conduct of an agent within the scope of employment "if it is of the kind he is employed to perform; if it occurs substantially within the authorized time and space limits; and if it is motivated, at least in part, by a purpose to serve the employer. . . . [A] corporation may be vicariously liable under G.L. c. 151B, s 4, the State's anti-discrimination law, for a supervisory employee's sexual harassment of a subordinate.
Sarvis, 47 Mass.App.Ct. at 96 (cites omitted). The court then concluded:
We think it doubtful that the Legislature would have intended to create a unique exception to the tort principle of respondeat superior for a statute enacted as a necessity to remedy the violation of civil rights by private persons. Such a result would significantly narrow the application of the statute by immunizing a principal for a civil rights violation committed, even as directed, by his agent, and undermine the Legislature's intent to reach private civil rights violations.
Sarvis, at 97.
We conclude that the Legislature intended corporations to be vicariously liable under the MCRA for civil rights violations committed by their agents acting in the scope of their employment.
Id.Smith suggests that the same reasoning existed when the Legislature in 1989 amended M.G.L. c. 151B to include section 4(4A), which "makes it unlawful `for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter.'" Bain v. City of Springfield, 424 Mass. 758, 765 (1997).
Common sense dictates that if a municipality can be vicariously liable for violations of an antidiscrimination-in-employment statute, a municipality certainly ought to be vicariously liable for violations of an individual's state and constitutional rights. It does not make common sense to say a municipality cannot vicariously coerce, intimidate, threaten or interfere with another person's statutory rights and not with a person's constitutional rights. The court in Santa Clara v. Andrus, 572 F.2d 660, 675 (9th Cir.), cert. denied, 439 U.S. 859 1978), too, was "`by no means convinced' that a municipality was not a person under the due process clause of the Fifth Amendment." Bain, 424 Mass. at 768.
In 1996, the Supreme Judicial Court chose not to decide whether a municipality should be considered a person for purposes of liability under the Act because the question had "not been adequately briefed." Swanset Development Corp. v. City of Taunton, 423 Mass. 390, 391 (1996).
In light of the recognition in Chaabouni v. Big City, 133 F.Supp.2d 93, 102-103, that a municipality, like a corporation, is a "creature of the law," Smith suggests that vicarious liability should also extend under MCRA to municipalities. His rationale is that municipalities should be no less accountable than private corporations are for the actions of their employees.
If municipalities are concerned, as the Chaabouni court bravely concedes at 102, about going bankrupt from multiple lawsuits "for harms arising from the myriad actions performed by agents of the [municipalities]", those entities should mend their unlawful way of doing business. To encourage municipalities to promote and encourage lawful behavior by municipal employees, a court has only one weapon in its arsenal: to allow both the prosecution of the actions heretofore precluded and the award of money damages. The "bad apples" will be discarded rapidly and the number of suits will diminish.
Precluding immunity for Massachusetts municipal corporations would go far in providing for all injuries and wrongs the free, complete, and prompt remedy which article XI of the Declaration of Rights of Massachusetts has held out as a guarantee of justice to its people.
Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs, which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; compleatly, and without any denial; promptly, and without delay; conformably to the laws.
Part the First, Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, article XI. Although Massachusetts high court has held that "the Legislature may enact a statute that abolishes a common law cause of action without providing a substitute remedy if the statute is rationally related to a permissible legislative objective" [Soares v. Gotham Ink of New England, Inc., 32 Mass.App.Ct. 921, 924 (1992), quoting Klein v. Catalano, 386 Mass. 701, 712 n. 16 (1982) and discussing article XI], the SJC appears not to have addressed the intersection of Article XI and Article V, which provides for accountability not only of the legislature, the executive, and the judiciary, but also of officers of government, thereby inferentially precluding any type of immunity.Smith suggests, therefore, that if the MCRA were read together with arts. XI and V, a municipality should be liable under the theory of vicarious liability in actions brought pursuant to the MCRA. Such a decision would not be inconsistent with those allowing vicarious liability actions against a municipality for violations of other civil rights statutes. Such a decision would not only make common sense, it would force accountability and provide a remedy for wrongs. It would even satisfy the due process and equal protection clauses of the Constitution.
b. Threats, Intimidation, or Coercion12 12 As Broderick summarized at 487: "Coercion" 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" [Deas v. Dempsey, 403 Mass. 468, 471 (1988)] or "the active domination of another's will." Delaney v. Chief of Police of Wareham, 27 Mass.App.Ct. 398, 409 (1989).
"Threat" is "acts or language by which another is placed in fear or injury or damage." "Intimidation" is the "creation of fear to compel conduct." Delaney, at 409 (1989). In Sarvis, infra, intimidation was not only to "compel" but also to "deter" conduct. "[A] private security guard's order to a candidate for public office to stop distributing his political handbills at the common area of a private shopping Town, which he was doing in a reasonable and unobtrusive manner, was intimidation or coercion within the meaning of the MCRA." Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985).
As it did in Broderick, the City again argues that the plaintiff, now Smith, has failed to allege an actual or potential physical confrontation accompanied by a threat of harm. As did Broderick, Smith disputes this contention.Given that the facts in the instant case have been set out in minute detail, it can be seen that Smith satisfies the physicality prong which the City claims is missing: he was handcuffed repeatedly, underwent a degrading body cavity strip-search, and was made to awaken anxiously by McBroghan's sadistic kicking of the cell bars while Smith lay asleep, which put Smith in fear that acts of a more physical nature were yet to come. This was, after all, Smith's first and only jail experience.13
13 MCRA does not require physical confrontation. See Bally v. Northeastern University, 403 Mass. 713 (1989), which summarized the cases holding that physical duress is not the sine qua non of a MCRA violation.
The City made it clear on page 7 of its brief that the officers were responding to Pocahontas's and Plumber's phonecalls to remove Smith from the premises. This was the type of behavior in Sarvis which was adjudged to be violative of the MCRA. "Although the defendants themselves did not arrest the plaintiffs or place the telephone call that precipitated the actual arrests, the arrests for trespassing were made at their direction, without which there likely would have been no such arrests. In these circumstances, liability attached under the principle of joint venture." Sarvis, 47 Mass.App.Ct. at 93, citing Bell v. Mazza, 394 Mass. 176, 184 (1985).The difference between Sarvis and Bell is the falsity of the component by the instigator of the actions against the plaintiffs. "[T]he defendants, preferring to avoid the inconvenience of summary process, enlisted the unwitting aid of the police by giving them false information to remove the plaintiffs expediently." Id.
The issue of falsity is fully discussed in Smith's opposition to Pocahontas and Plumber's motion to dismiss and that discussion and argument is incorporated herein by reference.
In Bell, the court held that a defendant's petition to redress grievances, absent extraordinary circumstances, was insufficient to state a claim under the MCRA. Sarvis, 47 Mass.App.Ct. at 94.
In Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86 (1999), two individuals, who were occupying property after their father defaulted on mortgage payments and the bank purchased the property at foreclosure sale, were arrested for trespassing and falsely imprisoned, and then sued the bank and others. Statements by the real estate agent and bank official to plaintiffs that they would be arrested if they did not vacate premises were "threats" for purposes of civil rights claim. "The arrests were motivated, inferentially, by the defendants' desire to remove the plaintiffs from the property without having to observe their right to summary process." Sarvis, 47 Mass.App.Ct. at 93.
Similarly, Smith's arrest was motivated, inferentially, by the defendants' desire to remove Smith from his property without having to observe his right to use and possess his property, his home, his castle.
Because Smith has stated MRCA claims upon which relief may be granted, the City's motion to dismiss the MCRA count must be denied.
11. Where there is a difference between an intentional tort ("deliberate indifference)" and negligence, Smith's claims are not barred by M.G.L. c. 258, sec. 10(c).
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
12. Where Honcho's conduct was not discretionary, Smith's claim is not barred by M.G.L. c. 258, sec. 10(b), and governmental liability attaches.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
13. Where Counts 14 and 15 are place-holders until December 2001, six months after presentment, Honcho's cases based on presentment are irrelevant to Smith's claims in those counts.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Honcho in his individual capacity. Smith incorporates herein by reference his arguments on the issue from that brief.
14. Where Honcho and the officers acted outside their discretionary public duty, not in good faith, and with malice and corruption, immunity is precluded and dismissal of the counts against Honcho, the defendant officers, and the Big City is inappropriate.
The test for immunity under Massachusetts common law is whether the public official acted within the scope of a discretionary public duty in good faith and without malice or corruption. Breault v. Chairman of the Board of Fire Comm'rs, 401 Mass. 26, 34 (1987); Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).
Pellot v. Ilona Handicraft, Inc., No. 913415B, 1994 WL 879658 *6, (Mass.Super. 1994) (Lenk, J.) (qualified immunity not available to police officer).
15. The Big City is not entitled to dismissal on Plaintiff's allegations of intentional infliction of emotional distress where the states of the minds of Honcho and offending officers are as yet unknown.
The City argues that it is entitled to dismissal of this and other intentional claims, because State law provides immunity to municipalities for "any claim arising out of an intentional tort." M.G.L. c. 358, se. 10(c).
The City observes that a strip-search "is a prototypical intentional act," and it therefore concludes that it is immune to liability for any emotional distress [Plaintiff] may have suffered as a result of the contested searches. Ford et al v. Suffolk County, et al, No. 98-11346 (D.Mass. July 31, 2001) (Gertner, J.) Memorandum re Summary Judgment Against Ford; hereinafter referred to as "Ford (Memo, Ford).The City correctly states Massachusetts law, but I question its reasoning. While I certainly agree that a strip-search is an intentional "act," it is not an intentional tort unless the officer performing the search acted with "intent to harm (or a state of mind of knowing that the act would result in a violation of a legally protected right)." Foster v. McGrail, 844 F. Supp. 16, 25 (D. Mass. 1994) (citing Schenker v. Binns, [18 Mass.App.Ct. 404], 466 N.E.2d 131 (Mass. App. Ct. 1984)). Thus, the strip-searches of [Plaintiff] cannot have been intentional torts unless the officers performing the searches knew at the time that the searches were unlawful. But this is precisely what [Plaintiff] contests: She argues that the City failed to adequately train the officers, as a result of which they did not know. at the time, that the searches were unconstitutional. If [Plaintiff] is ultimately able to prove her claim of failure to train she will also have conclusively proven that the strip-searches were not intentional torts.
Put differently, the fact that the same set of circumstances could also form the basis for intentional tort claims does not preclude [Plaintiff]'s alternative theory of the case. According to [Plaintiff], the City failed adequately to train its officers, so it is the City that should be liable for the officers' resulting (uninformed, and therefore unintentional) violation of her rights. [Plaintiff] must still establish the factual truth of this story at trial, but assuming she is able to do so, Massachusetts law does not grant the City immunity from her claim. Therefore, the City's request for summary judgment of this claim is DENIED.
Given the similarities in the instant case, dismissal of Smith's intentional claims against the City is premature and inappropriate.
* * * * *
WHEREFORE, Plaintiff prays the Big City and Honcho's motion be denied.
28 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
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833