#54, Drano Series
Opposition to Motion to Dismiss byPolice Officers*
Smith won this round!
The court ALLOWED in part and DENIED in part
the police officers' 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 OFFICERS COLORONE AND McBROGHANNow 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 Billy Colorone ["Colorone"] and Timothy McBroghan ["McBroghan"].
NOTE
Smith incorporates herein by reference in their entirety the facts and arguments in the following documents. It will save court time and resources by diminishing any repetition.1. PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY POLICE COMMISSIONER HONCHO IN HIS INDIVIDUAL CAPACITY2. PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY THE BIG CITY AND HONCHO IN HIS OFFICIAL CAPACITY3. PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY DEFENDANTS POCAHONTAS SMITH AND SEAN PLUMBER
FACTUAL BACKGROUND; ADDITIONAL FACTS FOR THIS MEMORANDUMWhen the first 209A1 she had against him expired on 13 December 2000, there was no order to keep Smith out of his home. Pocahontas had already vacated it; that is, she had literally removed both children and all personal property out of the home and had moved to the State of XXXX.
1 That it was based on bogus reasons are beyond the scope of this brief. For edification purposes, counsel states that the only requirement is that the alleged victim is in fear. No act is required by the defendant; no mens rea is required. All a woman has to do to get a 209A is say she is in fear. She can be bipolar or have a borderline personality disorder or just be mean-spirited: her word that she is in fear of her husband is sufficient to get a 209A order. More often than not, the 209A order is but a weapon in the arsenal of family- or domestic-relations lawyers. With a 209A order in place, a sole legal and physical custody order in favor of "mom" follows automaticallyOn or around 5 December 2000, Smith had informed her through their attorneys of his intention to move back in. Pocahontas contacted her stepbrother, Defendant Sean Plumber ["Plumber"], and unbeknownst to Smith, conspired with him to move into the Poodle Street condominium. The phone line — 617-720-2149 -- in Plumber's name was installed immediately by either Pocahontas or Plumber. Plumber contracted with Ryder for a truck and on 15 December 2000, picked it up and headed with some belongings for Poodle Street.On several dates prior to and on Christmas, Smith again informed Pocahontas through her attorney that he intended to resume residence on Poodle Street inasmuch as the old 209A had expired, and requested the keys to the residence and to the parking garage.
On 3 January 2001, when Smith unexpectedly showed up with a locksmith (Pocahontas had previously changed the lock) and entered his home, it was without the usual indicia of an occupant in residence: the refrigerator was virtually empty, empty food boxes were atop the burners on the stove, and "packed boxes" were plentiful. Smith had a new key made to give Pocahontas.
On 4 January 2001, Pocahontas came to Big City from the State of XXXX and made an application for a new 209A, she and Plumber changed the lock on the front door, and Plumber evidently remained in the home. On 5 January 2001, when Smith showed up, Plumber was there. That was not anticipated by Smith, but clearly Plumber expected Smith's return. Plumber opened the door, told Smith that he had no right to be there, and called the police and Pocahontas. According to the transcript of the tape (attached to the Verified Complaint), Pocahontas had also phoned the Big City Police Department.
When the officers arrived, Officer Colorone spoke to Pocahontas, who was still on the phone. What Colorone and McBroghan learned from both Plumber and Pocahontas is detailed in the FACTUAL BACKGROUND section of Smith's opposition to both the motion to dismiss by the Big City and Honcho in his official capacity, and the motion to dismiss by Pocahontas and Plumber. Both of those sections are also incorporated herein by reference in their entirety.
Plumber conspiratorially aided and abetted Pocahontas to set up Smith for arrest by moving in to the residence, staying in wait for Smith's arrival, making a 911 call to report a breaking and entering in progress, telling Smith there was a restraining order against him, ordering Smith to leave, and -- contrary to Pocahontas's assertion that they just wanted Smith to be removed and not be arrested -- telling Smith that he was "subject to arrest" should he stay [Complaint, Exh. A, p. 2, line 5], the latter being tantamount to a threat and intimidation to compel Smith to leave in fear of being arrested.
Plumber's motive was to help his stepsister and get cheap digs.
Pocahontas's motive was to gain a collateral advantage in the couple's divorce. If Smith were to be arrested and convicted, Pocahontas would have had the issues of custody of the children, alimony (Smith was the primary caregiver, the "house-husband"), and property distribution resolved outside of the Probate & Family Court. So pleased and excited about the prosecution, she came down from the State of XXXX each and every time Smith had to appear in criminal court. She was a proactive participant in the unlawful prosecution. As was Plumber. He was also present on the scheduled trial day. The officers, too, were ever-present and happily waited for hours in court, each hour representing income over and above their base wages.
On 26 April 2001, four days prior to the charges being dismissed, a Probate & Family Court judge strongly encouraged and approved a stipulation that Smith would be given exclusive use and possession of the residence as of 1 May 2001. Sean Plumber had moved out. Pocahontas was still living in the State of XXXX.
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). While the Court does not credit any plaintiff's bald assertions, unsubstantiated conclusions, or outright vituperation [Correa-Martinez v. Arrillaya-Belenez, 903 F.2d 49, 52 (1st Cir. 1990)], neither should the Court credit any defendant's or movant's bald assertions, unsubstantiated conclusions, or outright vituperation.
Dismissal is also not appropriate where Smith is entitled to any form of relief for any wrong or injury. Id., at 321. Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). Massachusetts Declaration of Rights, article XI. "A complaint is not subject to dismissal if it could support relief on any theory of law," Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 89, "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted).
ARGUMENTS
1. Where Colorone and McBroghan have failed to raise the qualified immunity defense with sufficient particularity, they have waived the right to that defense.
Defendants Big City 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.
2. Standard for Discretionary Function
In Massachusetts: the Stoller Test. "The first step in determining whether a claim is foreclosed by the discretionary function exception . . . is to decide 'whether the [government] actor had any discretion to do or not to do what the plaintiff claims caused him harm.'" Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 323 (1998) (the town was not immune from liability under M.G.L. c. 258), quoting 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.'" Brum, 44 Mass.App.Ct. at 323, quoting Harry Stoller, 412 Mass. at 141. See alsoBrum v. Town of Dartmouth, 428 Mass. 684, 690 (1999).
"The second step is to determine whether the discretionary conduct involves policy making or planning, the only type of discretion immunized by § 10(b) [the Massachusetts Tort Claims Act]." Brum, 44 Mass.App.Ct. at 323.
An Additional Caveat. "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), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906 (1988) ; Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).
The Federal Test. "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). The discretionary function exception, however, does not protect all governmental activities involving an element of judgment or choice: the actor's decisions must be based on considerations of public policy. Irving v. United States, 162 F.3d 154, 180 (1st Cir. 1998), citing United States v. Gaubert, 499 U.S. 315, 323 (1991), quoting Berkovitz v. United States, 486 U.S. 531, 537 (1988), the seminal case in this area of law.
In sum, if the conduct is discretionary, it might fall under the discretionary function exception or it might not. Shansky v. United States, 164 F.3d 688, 691 (1st Cir. 1999). 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.\/2 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."
2 Colorone and McBroghan fail to state which conduct they contends is shielded by immunity, or which action was a matter of choice for them.When both applying the federal law to the instant case and assuming arguendo that Colorone's and McBroghan's conduct was discretionary, i.e., that it involved an element of judgment or choice on their part, "any discretion [Colorone and McBroghan] 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."Since Harlow the Supreme Court has neither repudiated nor much explained the role of discretionary functions relative to qualified immunity." Horta v. Sullivan, 4 F.3d 2, 12 (1st Cir. 1993). Nevertheless, given the Keystone Kops quality of the scenario, it must be concluded that that qualified immunity also does not protect Colorone and McBroghan or their conduct, for "[q]ualified immunity protects 'all but the plainly incompetent OR those who knowingly violate the law,'" Anderson v. Creighton, 403 U.S. 635, 638 (1987), quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986) (discussing liability of police officer who allegedly applied for arrest warrants, without probable cause, in violation of the Fourth Amendment), emphasis supplied. McCleary v. Navarro, -- U.S. --, 112 S.Ct. 2324, 2324 (1992) (same), citing Malley, at 341, and quoted in Hunter v. Bryant, 502 U.S. 224, 229 (1991).
3. Where Colorone and McBroghan had no probable cause to arrest Smith, the arrest was illegal, amd Smith was deprived of his constitutional rights to remain free from unreasonable seizure of his person and unjustified litigation, qualified immunity is inappropriate.
a. Where there was no crime committed in the presence of Colorone and McBroghan, there was no probable cause, thereby making the arrest unlawful, qualified immunity inapplicable, and dismissal of Smith's claim for false arrest inappropriate.
Qualified immunity analysis -- first prong: "Was Smith's constitutional right clearly established at the time of the violation?" Answer Yes. His right to liberty [Fifth Amendment] and his right to be free of from any unreasonable seizure of his person [Fourth Amendment] were clearly established. Santiago v. Fenton, 891 F.2d 373, 383 (1st Cir. 1989) (citing Beck v. Ohio, 379 U. S. 89, 91 (1964). Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir. 1995). United States v. Watson, 423 U.S. 411, 431 n. 4 (1976) (an action for false arrest vindicates an individual's interest in freedom from unwarranted or arbitrary interference with personal liberty), citing Brinegar v. United States, 338 U.S. 160, 176 (1949).When the officer arrived at 58 Poodle Street, Smith walked through the common-area foyer and opened the front door for the officers and allowed them to enter the common area. He was not committing any crime when he did that, and he committed no crime after the officers entered the building. Given that the officer made a warrantless arrest when there was no crime being committed in their presence, the arrest was unlawful. "[W]arrantless misdemeanor arrest was unlawful when not [for] a breach of the peace." Atwater v. City of Lago Vista, 121 S.Ct. 1536, 1550 (2001), citing Pow v. Beckner, 3 Ind. 475, 478 (1852), Com. v. Carey, 66 Mass. 246, 250 (1853).
"First, police officers in the Commonwealth may arrest without a warrant for a misdemeanor if the misdemeanor (1) involves a breach of the peace; (2) is committed in their presence; and (3) is continuing at the time of the arrest, 'so that the offence and the arrest form parts of one transaction.'" Com. v. Kiser, 48 Mass.App.Ct. 647, 652 (2000) (warrantless entry), quoting Com. v. Jacobsen, 419 Mass. 269, 272 (1995), quoting from Com. v. Howe, 405 Mass. 332, 334 (1989); Com. v. Baez, 42 Mass.App. Ct. 565, 568 (1997) (same), quoting Com. v. Gorman, 288 Mass. 294, 297 (1934) (same).3
3 M.G.L. c. 276, § 28, authorizes officers to arrest without a warrant for designated misdemeanor offenses.Any officer authorized to serve criminal process may arrest, without a warrant, and detain a person found in the act of stealing property in the presence of the officer regardless of the value of the property stolen and may arrest, without a warrant, and detain a person whom the officer has probable cause to believe has committed a misdemeanor by violating a temporary or permanent vacate, restraining, suspension and surrender, or no-contact order or judgment issued pursuant to [c. 208, § 18; c. 208, § 34B; c. 208, § 34B; c. 209A, § 3; c. 209A, § 3B; c. 209A, § 3C; c. 209A, § 4; c. 209A, § 5; c. 209, § 32; c. 209C, § 15; c. 209C, § 20]. Said officer may arrest, without a warrant, and detain a person whom the officer has probable cause to believe has committed a misdemeanor involving abuse as defined in [c. 209A, § 1], or has committed an assault and battery in violation of [c. 265. § 13A] against a family or household member as defined in [c. 209A, § 1]. Said officer may arrest and detain a person charged with a misdemeanor, without having a warrant for such arrest in his possession, if the officer making such arrest and detention shall have actual knowledge that a warrant then in full force and effect for the arrest of such person has in fact issued.
M.G.L. c. 276, § 28.Neither the three conditions just cited nor exigent circumstances were present under the exceptions to the Fourth Amendment to justify a warrantless arrest of Smith . SeeKiser, at 649.
Qualified immunity analysis -- second prong: "Would a reasonable officer have understood that the arrest of Smith would violate Smith's established rights?" Answer, Yes.
Here, Colorone and McBroghan boldly and baldly assert that Smith's claims must fail.
Probable cause. "Was there probable cause for the warrantless arrest?" Answer, No, Smith contends, and it is the burden of Colorone and McBroghan to establish that the police had probable cause to believe that Smith was engaged in a crime when they arrested him. Com. v. Boswell, 374 Mass. 263, 266 (1978); Com. v. Flaherty, 6 Mass.App.Ct. 876 (1978) (cases gathered); Com. v. Forde, 367 Mass. 798, 810 n. 1 (1975); Com. v. SIlva, Nos. 99-1432-1438, 2000 WL 991707, at *5 (Super.Ct. June 20, 2000) (Brassard, J.) ("police may enter dwelling to make a warrantless arrest if they have probable cause and there are exigent circumstances"). Only exigent circumstances would excuse the lack of an arrest warrant. Boswell, at 266. Without exigent circumstances, the arrest was illegal. Id. Without probable cause, the arrest of Smith violated his Fourth Amendment right to be free from unreasonable seizures of the person. Santiago v. Fenton, 891 F.2d at 383, citing Beck v. Ohio, 379 U.S. at 91.
Smith does not argue that when upon receiving two dispatch calls asking the officers to respond to the condominium, they believed that Smith had committed a crime. Without knowing more, given the current record, it is impossible to determine whether that belief was reasonable. See page 6 of Colorone and McBroghan's memorandum.
Colorone and McBroghan Rely on Fact #1: Colorone and McBroghan wrote, on page 6, that Pocahontas obtained an order pursuant to M.G.L. c. 209A ["209A order"] on the day prior to Smith's arrest, but they failed to state that they had been informed by Pocahontas and Plumber that the 209 had not been served -- although in the Big City Police Incident Report [Exh. A, attached hereto this opposition], Colorone admits that he learned that the January 4th 209A order had not been served . Smith knew nothing, of course, of the 209A order, and until it was served, it was invalid. Com. 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).4
4 That invalid 209A was the basis of two of the charges brought against Smith later that day [Compl. pars. 19, 48, 55, 82(c), 118(b) n. 21, 118(c) n. 22, 118(h), 118(i)].It was not reasonable to rely on a known invalid 209A order as the basis to make a warrantless arrest.
[H]olding that an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a Judge is not entitled to immunity unless the officer has an objectively reasonable basis for believing that the facts alleged in his affidavit are sufficient to establish probable cause.
Malley v. Briggs, 475 U.S. 335, 339 (1986), citing Malley v. Briggs, 748 F.2d 715 (1984). Liability attached because the officer was "'constitutionally negligent' that is, where the officer should have known that the facts recited in the affidavit did not constitute probable cause." Malley, 475 U.S. at 348, citing Malley, 748 F.2d at 721, and applying Harlow's standard of objective reasonableness.Colorone and McBroghan Rely on Fact #2: On page 6, Colorone and McBroghan wrote that when they arrived at 58 Poodle Street, "it was evident" to them that [Smith] was committing a crime . . . that he had been drilling into the condominium to obtain access to it, despite plaintiff's denials."
Nowhere have Colorone and McBroghan stated how it was evident. Colorone was the first person to use the word "drilled" -- after he got off the phone with Pocahontas [Complaint Exh. A, line 1 of page 5]. (See FACTUAL BACKGROUND — incorporated herein by reference -- in Smith's opposition to the Big City and Honcho' Motion to Dismiss.) Neither Colorone nor McBroghan saw Smith drilling. The only evidence currently on the record appears to be, according to Pocahontas, that Plumber told Pocahontas, who was in Affluent Town in the State of XXXX, and Pocahontas told Colorone that Smith had been drilling. Was Pocahontas credible?
Pocahontas, who was in the State of XXXX, also could not have seen Smith drilling. She asserts that she learned about Smith drilling from Plumber . . . but it has been shown that even the certified reporter upon hearing the tape, believed that she heard a drill, but by that point in the tape, Smith's hands were handcuffed behind his back and Officer McBroghan was in possession of the drill. It was the creaking of the front door in the common area of the condominium building. The squealing door might very well have been the sound which Plumber heard -- assuming he did hear something -- when Smith came in from the outside. How credible was Pocahontas?
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).Even were we to assume arguendo that Smith did drill into the lock" [line 8 of page 6 of T&M's memo] to gain access to his home, it was his home, he was a co-owner, there was no order restricting him from the home, and he could drill into every lock (assuming the locks were attached to the realty) and every door and every wall and he still would not have committed a crime.
Once something is attached to realty it becomes part of that realty. Gar Wood Industries v. Colonial Homes, 305 Mass. 41, 48 (1940), citing Stone v. Livingston, 222 Mass. 192, 194, 195 (1915) (summary of classes of cases). Auburndale Plaza, LLC v. Sarni Cleaners of Framingham, Inc., No. 966101, 1999 WL 1203686 (Mass.Super. 1999) (Fahey, J.), quoting Stone at 194-195.
Both Colorone and McBroghan knew that Smith was co-owner. Smith had shown McBroghan his deed. McBroghan took it and showed it to Colorone. They knew or should have known those fundamentals of property law, given that they were assigned to details requiring that the officer enter people's homes. Smith suggests that their training was inadequate at the academy and in the department itself.
"An officer's qualified immunity is pierced only if there clearly was no probable cause at the time the arrest was made. Rose v. Town of Concord, 971 F.Supp. 47, 50 (D.Mass. 1997), citing Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985). It could not be clearer that the so-called "drilling" excuse did not give the officers the requisite probable cause.
The only reasonable conclusion is that the officers did not have probable cause at the time they made a warrantless arrest of Smith. Warrantless arrests are not permissible if they are not supported by probable cause. Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992); Santiago, 891 F.2d at 383, citing Beck v. Ohio, 379 U.S. at 91. Wagenmann v. Adams, 829 F.2d 196, 205-206 (1st Cir. 1987) (relief for arrests made without probable cause under § 1983). "Qualified immunity protects 'all but the plainly incompetent OR those who knowingly violate the law.'" Anderson v. Creighton, 483 U.S. 635, 638 (1987), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). Emphasis supplied.
4.Where the conduct of Colorone and McBroghan is not protected by qualified immunity, and there is evidence of threats, intimidation, or coercion, dismissal of Smith's claims under the Massachusetts Civil Rights Act is inappropriate.
This issue is discussed in Smith's opposition to the motion to dismiss his claims against Big City and Honcho in his official capacity at Issue 10(b). Smith incorporates herein by reference his arguments on the issue from that brief. The law cited and/or quoted is applicable, although there the Big City and Honcho are discussed and here Colorone and McBroghan are the objects of our attention.
There, in note 12, Smith set outs the applicable definitions of "threats," "intimidation," and "coercion." In note 13, Smith cautions that physical duress is not the sine qua non of a MCRA violation and that physical confrontation is not required by the MCRA. See Bally v. Northeastern University, 403 Mass. 713 (1989), and cases gathered. And in the body of the issue, Smith discusses how the facts, which have been in the instant case set out in minute detail, satisfy the physicality prong which the City claims is missing: he was handcuffed repeatedly, underwent a degrading visual body cavity strip-search, and was made to awaken anxiously from sleep by McBroghan's sadistic kicking of the cell bars, 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.
Smith also discusses there Pocahontas's and Plumber's dispatch phonecalls in which each requested that Smith be removed from the premises. He contends that that phoning matched the type of behavior in Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86 (1999), cert. denied, 430 Mass. 1106 (1999), which was adjudged to be violative of the MCRA. . . . and in Sarvis caused liability to attach 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. The issue of falsity is fully discussed in Smith's opposition to Pocahontas and Plumber's motion to dismiss and that discussion and argument, too, are incorporated herein by reference.
In Sarvis the 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, 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. And by so doing, Smith's constitutional rights to liberty, his property, and person were all injured.
Because Smith has stated MRCA claims upon which relief may be granted, Colorone and McBroghan's motion to dismiss the MCRA count must be denied.
5. Where article XI of the Massachusetts Declaration of Rights requires a remedy for all injuries and wrongs, 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.
Smith discusses the issues in some detail in Issue 10(a) and incorporates herein that discussion and argument by reference.
Colorone and McBroghan did not see this issue. They simply put three sentences to it: The first, that the Supreme Judicial Court has "not yet decided whether the official policy or custom standard established in Monell applies to claims submitted under the MRCA." Smith does not disagree.
The second, that the SJC has stated that the MRCA and § 1983 are parallel statutes. Smith does not disagree.
Three, that since the plaintiff cannot establish a constitutional violation under § 1983, his claim must fail. Smith disagrees. He has set out several unconstitutional acts by City officials.
6. Where Smith has satisfied all elements of the tort of malicious prosecution, dismissal of Smith's count for malicious prosecution is inappropriate.
The critical inquiry that distinguishes malicious prosecution from false arrest . . . is whether the arrests were made pursuant to a warrant. [Cite omitted.] As a general rule, an unlawful arrest pursuant to a warrant will be more closely analogous to the common law tort of malicious prosecution. An arrest warrant constitutes legal process, and it is the tort of malicious prosecution that permits damages for confinement pursuant to legal process.
Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995)."Although distinct from the tort of abuse of process, there is in malicious prosecution the common ingredient of an improper purpose, i.e., using court proceedings primarily to gain a private advantage, _ , and without belief by the accuser in the guilt of the accused." Conway v. Smerling, 37 Mass.App.Ct. 1, 3 (1994), citing Bednarz v. Bednarz, 27 Mass.App.Ct. 668, 669, 673 (1989) and Restatement (Second) of Torts § 668 comments c-g.
"[T]he essence of the tort [of malicious prosecution] is ... interference with the right to be free from unjustifiable litigation." Foley v. Polaroid Corp., 381 Mass. 545, 552 (1980). "The interest at stake in a malicious prosecution claim is the right to be free from deprivations of liberty interests caused by unjustifiable criminal charges and procedures. Calero-Colon, at 68 F.3d at 3.
Here, the first two elements, the commencement of a criminal proceeding and the termination of the proceeding in favor of Smith, are not in dispute. "A dismissal of a criminal complaint by the court . . . entered by a district attorney satisfies the requirement that the criminal prosecution has been terminated in favor of the plaintiff." Sarvis, 1994 WL 879797 (Mass.Super. 1994), citing Wynne v. Rosen, 391 Mass. 797, 800 (1984). 5,6
5In Nieves v. McSweeney. 241 F.3d 46, (1st Cir. 2001), which defendants cited, the primary issue was the time within which the plaintiffs had to bring suit. That issue is not of relevance to this case. The secondary issue was that plaintiffs brought the malicious prosecution action as a action under § 1983. That, too, is not an issue here. As held in Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996), "a garden-variety claim of malicious prosecution garbed in the regalia of § 1983 must fail." To metamorphose a "garden-variety" malicious prosecution claim into a § 1983 claim, the plaintiff must show a deprivation of a federally-protected right. Nieves, at 53, citing Meehan v.Town of Plymouth, 167 F.3d 85, 88 (1st Cir.) (1999) (malicious prosecution based upon arrest and not upon the initiation of proceedings), and Roche, at 254.The law for the third element, an absence of probable cause for the charges, is discussed fully in Issue 3 above. The facts for the third element are discussed in Smith's opposition to the motion to dismiss by both the Big City and Honcho (in his official capacity), which is incorporated herein in its entirety by reference. Some additional law on probable cause in a malicious prosecution case is below.6 "[T]he tort of malicious prosecution contemplates general damages as well as compensation for any arrest and imprisonment preceding the termination of the criminal proceeding." Calero-Colon, 68 F.3d at 4, citing Heck v. Humphrey, 114 S.Ct. 2364, 2371 (1994).
The fourth element, actual malice, "requires knowledge that a statement is false or reckless disregard of whether or not it is false." Sheraton Boston Corp. v. Bozzotto, 1995 WL 1308161 at *5 (Mass.Super. 1995) (Smith, J.), citing Aarco, Inc. v. Baynes, 391 Mass. 560, 563. "A jury may infer malice from the circumstances, however, even if a defendant testifies or otherwise protests his good faith." Sheraton, at *5. In the instant case, the Big City Police Incident Report which accompanied the Criminal Complaint stated that Smith was arrested because he tried to gain entry to his own house, but then he was not charged with "entering" because there was no basis for that charge. Clearly, the officers recklessly disregarded the true facts.
Where Pocahontas could not produce over the telephone a court order showing that Smith had no right to be at his home, the information regarding the use and possession of the home was sufficiently unreliable or incomplete to support a finding that the officers could rely upon it without additional information. Carroll v. Gillespie, 14 Mass.App.Ct. 12, 20 (1982), cites omitted.
It is settled law that a person who is confronted with inconsistent or contradictory representations may not reasonably rely on one side of the controversy without attempting to resolve the inconsistency or contradiction. Reliance cannot be deemed reasonable when the alleged misrepresentation is "preposterous or palpably false" or when minimal investigation would have revealed the truth, or simply when a party "close[s][its] eyes and passively accept[s] the contradictions" that exist in the information available to it. These cases are applications of a basic rule: "Explicit conflict engenders doubt, and to rely on a statement the veracity of which one should doubt is unreasonable."
Massachusetts Laborers' Health & Welfare Fund v. Philip Morris, Inc., 62 F.Supp.2d 236, 242-243 (D.Mass. 1999) (federal and state and treatise cites omitted).In Griffin v. Dearborn, 210 Mass. 308, 313 (1911), cited by Carroll at 20, the defendant knew that his horse was taken by Griffin's minor son, but did not know whether the son did as he claimed, to wit, that he took the horse on order from Griffin. Griffin's immediate prosecution of the son without any "precedent investigation" could be found to lack reasonable grounds.
In Smith v. Eliot Sav. Bank, 355 Mass. at 548, the bank failed to pursue information as to whereabouts of Smith, in whose name unauthorized withdrawals were made and who had been identified as the forger by the teller seven months after the brief withdrawal transaction. The jury could have found that the identification was "so suspect that a 'man of ordinary caution and prudence' would not have relied upon it." Carroll, 14 Mass.App.Ct. at 20-21, quoting from Bacon v. Towne, 4 Cush. at 239.)
Where Smith satisfied all four elements of the tort of malicious prosecution, dismissal of claim for malicious prosecution is inappropriate.
7. Where Colorone and McBroghan used a lawful criminal process to accomplish an unlawful purpose, dismissal of Smith's count for abuse of process is inappropriate.
"An action for abuse of process when an officer uses a lawful criminal process to accomplish an unlawful purpose." Santiago v. Fenton, 891 F.2d at 388, citing Powers v. Leno, 24 Mass.App.Ct. 381 (1987). "It is a distinct claim from false arrest and malicious prosecution to the extent that it can be held to lie regardless of whether there was probable cause or whether the proceedings terminated in favor of the charged party." Santiago, at 388; Carroll v. Gillespie. 14 Mass.App.Ct. 12, 26 (1982), quoting Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975), quoting from Quaranto v. Silverman, 345 Mass. 423, 426 (1963).
"It is immaterial that the process was properly issued, [or] that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose.... The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed...." Kelley [v. Stop & Shop Cos. 26 Mass.App.Ct. 557], 558 (1988)], quoting from Restatement (Second) of Torts § 682 comment a (1977). Further, "[t]he ulterior motive may be shown by showing a direct demand for collateral advantage; or it may be inferred from what is said or done about the process." Ladd v. Polidoro, 424 Mass. 196, 198 (1997), quoting for Prosser & Keeton, Torts § 121, at 899 (5th ed. 1984).
Vittands v. Sudduth, 49 Mass.App.Ct. 401, 406 (2000).Here, the police benefitted from the court-time pay. As Colorone admitted, he had earned $150,000 the previous year.
8.Where Colorone and McBroghan confined Smith within fixed boundaries and Smith was conscious of the imprisonment, dismissal of Smith's count for false arrest and imprisonment is inappropriate.
As to the false arrest: "[W]rongful warrantless arrests typically resemble the tort of false arrest." Calero-Colon, at 4, citing Singer v. Fulton County Sheriff, 63 F.3d 110, 115-116 (2d Cir. 1995). "[F]alse arrests infringe upon the right to be free from restraints on bodily movement [id.]7 or the restraint of an individual's personal freedom." Kay v. Bruno, 605 F.Supp. 767, 774 (D.C.N.H. 1985).
7"Damages for false arrest are restricted to the time period between the initial detention and the issuance of legal process." Calero-Colon, 68 F.3d at 4.Typically, the elements of a false arrest claim are said to be that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious
of the confinement; (3) the plaintiff did not consent to the confinement;
and (4) the defendant had no privilege to cause the confinement. See Restatement (Second) of Torts Section(s) 35, 118 cmt. b (1965). Neither actual malice nor lack of probable cause is an element of false arrest.
Calero-Colon, 68 F.3d at 3 n. 6 (emphasis supplied). Where the officers lacked probable cause to arrest Smith, then liability can arise under 42 U.S.C. § 1983 and M.G.L. c. 12I (the state civil rights act). Santiago, 891 F.2d at 383 (citing Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985).As to the false imprisonment: False imprisonment is where (1) the Defendants acted with the intention of confining Smith within fixed boundaries, (2) the act directly or indirectly resulted in confinement, and (3) Smith was conscious of the confinement. Restatement (Second) Torts, § 35; see Foley v. Polaroid Corp., 400 Mass. 82, 89-92 (1987); Nolan & Sartorio, 37 M.P.S. Torts, § 16, p. 16 (2d ed. 1989 and 1993) Supp.
A person may be liable for false imprisonment not only when the person's own acts directly impose a restraint upon the liberty of another but also when that person, by providing false information, causes such restraint to be imposed. Karjavainen v. Buswell, 289 Mass. 419, 427 (1935) (questioned on other grounds by Mezullo v. Maletz, 331 Mass. 233, 239-240 [1954]). Restatement (Second) of Torts s 37 (1965) ("If an act is done with the intent to confine another, and such act is the legal cause of confinement to another, it is immaterial whether the act directly or indirectly causes the confinement").
Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86, 97-98 (1999).
9. Where the facts satisfy the elements of assault and battery, dismissal of Smith's count for assault and battery is inappropriate.
As to the assault: "Under the common law, an assault may be accomplished in one of two ways -- either by an attempted battery or by putting another in fear of an immediate threatened battery." Com. v. Gorassi, 432 Mass. 244, 247 (2000).
An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and (b) a harmful contact with the person of the other directly or indirectly results.
Waters v. Blackshear, 412 Mass. 589, 590 (1992).When McBroghan kicked the cell bars, with the intention of frightening the sleeping Smith, it put Smith in fear of an immediate threatened battery, and sufficient to find an assault.
Where the defendant officers were not authorized to arrest Smith, even the force McBroghan used to handcuff Smith when arresting him was unlawful. Under existing state law, Smith was not allowed even to resist. He was threatened with a crime if he resisted the arrest which he knew was unlawful. Cf. Com. v. Moreira, 388 Mass. 596 (1983) (person has no right to resist, even if reasonably thought to be unlawful, unless the restraining officers used excessive or unnecessary force) and Julian v. Randazzo, 380 Mass. 391, 396 (1980) . Though the force was slight, it was an unconsented-to touching, and as such it was a battery. Jesionowki v. Beck, 937 F.Supp. 95, 105 (D.Mass. 1996); Com. v. McCan, 277 Mass. 199, 203 (1932).
Contrary to Colorone and McBroghan's assertion, under Massachusetts law, assault and battery consists of "the intentional and unjustified use of force upon the person of another, however slight, or intentional doing of a wanton or grossly negligent act causing personal injury to another." Jesionowki v. Beck, 937 F.Supp. 95, 105 (D.Mass. 1996), quoting Com. v. McCan, 277 Mass. 199, 203 (1932) (citations omitted). See also Graham v. Connor, 490 U.S. 386, 393 (1989) (an excessive force claim brought under § 1983 "is not governed by a single generic standard").
10. Where Colorone, McBroghan, Pocahontas, and Plumber had the same object to be accomplished, an agreement on the object or course of action, committed one or more unlawful overt acts, and Smith's damages are a direct result of those acts, dismissal of Smith's count for conspiracy is inappropriate. 8
8 Com. v. Silanskas, 433 Mass. 678, 2001 WL 363524 at *7 (2001).Smith brought two flavors of conspiracy: one under § 1983 and one under common law. The first (Count 4) requires the deprivation of constitutional rights and that the defendants be state actors. Smith contends that Pocahontas and Plumber, by the nature of their conduct and the officers, are state actors for the purposes of § 1983. (See Smith's Opp.Mem. to Pocahontas and Plumber's Mot.Dism.)Also, Pocahontas has asserted that she was, at all times relevant to this action, acting in her personal business, and that she should not be sued in her professional capacity, which is as an attorney. Smith argues in his opposition to her motion to dismiss that the private-citizen exception does not apply to those of Pocahontas's acts of which Smith complains.
Deprivation of constitutional rights. Given that Smith was deprived of several constitutional rights, only two of which were his right to be free of unreasonable seizure of his person and his right to be free of unjustifiable litigation [Jesionowski v. Beck, 937 F.Supp. 95, 105 (D.Mass. 1996)], his conspiracy claim is actionable under § 1983.
Conspiratorial purpose. The conspiratorial purpose of both Pocahontas and the officers was to arrest and prosecute Smith, a male, for the following reasons:
As to Pocahontas: Pocahontas wanted a collateral advantage in the couple's divorce, the collateral advantage being that she could resolve the issues of custody of the children, alimony (from her to him), and property distribution outside the Probate & Family Court if Smith were to get convicted. She would get the children and the Big City home, and would be free of alimony and potential child-support obligations. To accomplish her goals, she elicited Plumber's help. Telling him that Smith had no right of access to the residence, she got him to move into Smith's residence. The phone in Plumber's name was ordered prior to the old 209A expiring on 13 December 2000. She reiterated the falsehood on the phone to Plumber on, at the very least, the morning of January 5th, prior to the police arriving at the residence and arresting Smith. Then she reiterated it again when she spoke on the phone to Defendant Officer Colorone.
As to Plumber: With apparent reliance on Pocahontas's acknowledged expertise in the law, Plumber conspiratorially aided and abetted Pocahontas to set up Smith for arrest by moving in to the residence, staying in wait for Smith's arrival, making a 911 call to report a breaking and entering in progress, telling Smith there was a restraining order against him, ordering Smith to leave, and -- contrary to Pocahontas's assertion that they just wanted Smith to be removed and not be arrested -- telling Smith that he was "subject to arrest" should he stay [[Complaint, Exh. A, p. 2, line 5], the latter being tantamount to a threat and intimidation to compel Smith to leave in fear of being arrested.
Plumber's motive was to help his stepsister and get cheap digs.
As to Colorone and McBroghan: Because it was in their financial interest to do so, Colorone and McBroghan went along with the ruse Pocahontas was pulling; that is, (a) they accepted as true the false information that Pocahontas had an order for the exclusive use and possession of the home, (b) they, knowing that the old 209A had expired and that the new 209A had not been served -- thereby not making the new 209A valid yet -- lied to Smith and told him he should not be there because there was a restraining order against him [Complaint, Exh. A, p. 4, lines 10-11, (c) they, knowing that the old 209A had expired and that the new 209A had not been served, lied to Smith and told him he was not being arrested for a violation of a 209A, but, in fact, they charged Smith with 209A violations, (d) they, knowing that he was co-owner of the property and that the new 209A had not been served, lied to Smith and told him he was being arrested because he tried "to gain entry" [Complaint, Exh. A, p. 9 line 11], but, in fact, they did not charge Smith with "entering" because it was his property.
The officers' motive was to supplement their salaries by the pay for the court time they would glean from attending the court session each time Smith's case was scheduled.
As to the City -- Discrimination: Statistically and historically, males are deprived of their rights to equal protection under the modern domestic-relations laws, generally, and under c. 209A, specifically.
During 2000, there were about 73 victims of domestic-related "other assaults" per week (73.5 victims). Sufferers of domestic-related "other assaults" during 1999 were victimized 72 times per week (72.1 victims). This represents an increase of almost two percent (+1.9%) when comparing the two years. http://www.ci.boston.ma.us/police/dv_stats.asp (excerpted from an introductory page to a few dozen webpages containing charts of reported crimes in the Big City).Victimization of total "other assaults" in the Big City occurred about 158 times per week during 2000 (157.5 victims). This is an increase of almost one percent (+0.4%) of the number of victims of total aggravated assault during 1999 (156.8 victims per week).
Although the Big City Police Department maintains statistics and publishes them on its website, the "victim" statistics are not broken down by gender. Should Smith's arguments against dismissal of the § 1985(3) conspiracy count (Count 4) be deemed persuasive, he will seek the gender breakdown during discovery.
Notwithstanding the as-yet-unknown statistics, there is a presumption on the part of both the law-enforcement personnel and the state district and probate and family courts that the women's accusations are correct and that the men are either in denial or lying, that the officers act as Colorone and McBroghan did either with deliberate indifference to, or with reckless disregard of, what Smith's rights were or what he said because he was a male. At all times, Smith was entitled to the equal protection of equal privileges and immunities under the state and federal constitutions and all the state and federal laws and regulations. "'A violation of Equal Protection occurs when the government treats some differently than another who is similarly situated.'" Columbus v. Biggio, 76 F.Supp.2d 43, 51 (D.Mass. 1999), quoting Koelsch v. Town of Amesbury, 851 F.Supp. 497, 501 (D.Mass. 1994) (internal quotations omitted).
The Overt Acts: Subsequent to the officers arriving on the scene, the overt acts which Pocahontas and Plumber did in concert with Colorone and McBroghan -- in addition to those recited above and after the arrest and removal of Smith from his home and castle -- was the prosecution and cooperation with the prosecution of Smith for false charges, which were dismissed on 30 April 2001. Pocahontas even played the victim -- albeit a victim at a distance of two-plus hours away from the alleged crime -- and was assigned a victim-witness advocate.
Joint venture. Smith perhaps should have called the common law conspiracy count a "joint venture" rather than conspiracy9 because a joint venture is ordinarily limited to a single enterprise -- although, given that Pocahontas appeared at the Boston Municipal Court each and every time Smith's case was scheduled for a hearing, and actively participated in the prosecution of the case, each time might be considered another overt act toward the furtherance of the goal to convict him.
Ross v. Health and Retirement Properties Trust, 46 Mass.App.Ct. 82, 85 (1998) (Ross was "simply a judgment creditor of the Brennick entities seeking payment of the judgment"). To prove a joint venture, there is no need to prove that the participants either invested capital or shared losses or shared the expenses of litigation) or profits -- just the possibility of the recovery of damages actually suffered. There is apparently no joint property interest in the subject matter of the venture. Id., citing Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 623-624 (1990). 9 Smith might move, if and when necessary, to amend to conform to the evidence.
"[A] joint venture is a partnership of a sort." Cardullo v. Landau, 329 Mass. 5, 8 (1952). It arises when the parties "intend to associate themselves as such."The SJC has defined "joint venturer" in the criminal context:
A joint venturer is "one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime." Com. v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979). "The elements of the [crime] are not determined or influenced by whether the defendant was the sole perpetrator or only one of several participants in the crime[ ] [as long as] [t]he evidence was sufficient to show that the defendant was at least a participant, even if he was not the sole perpetrator, and that he possessed the state of mind required for guilt. Nothing further [is] required for conviction."
Com. v. Silanskas, 433 Mass. 678, 2001 WL 363524 at *7 (2001)."But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' poststop actions -- which were properly within our reach -- comport with the Fourth Amendment's guarantee of reasonableness." Atwater, 121 S.Ct. at 1567. A similar statement can be made by analogy to the domestic-relations scenes.
Pocahontas has alleged that she took out the 209A because she feared that Smith would do something to Defendant Sean Plumber [transcript of hearing on 24 April 2001, page 137]. If that were the case, to wit, that Plumber was afraid, Pocahontas could have included Plumber's name on the 209A . . . but she did not.
And Colorone and McBroghan knew or or should have known that were there an order giving her exclusive use and possession of the Poodle Street property, Pocahontas would not have needed a 209A to restrain Smith from going there.
11. Where Smith was emotionally injured while defendants were committing another tort, dismissal of Smith's count for intentional infliction of emotional distress is inappropriate.
"When the injury is emotional, as well as physical, damages compensate for worry, grief, stress, humiliation, anxiety and emotional scarring." Doe v. Clinton, 1996 WL 1185103 at *2 (Mass.Super. 1996) (Kottmyer, J.), citing Wagenmann, 829 F.2d at 221.
"Extreme and outrageous conduct is not required if the emotional distress resulted from the commission of another tort." American Velodur Metal, Inc. v. Schinabek, 20 Mass.App.Ct. 460, 470-471 (1985), cert. denied, 396 Mass. 101 (1985), cert. denied, 475 U.S. 1018 (1986). Notwithstanding that extreme and outrageous conduct is not an element Smith must satisfy, given the circumstances of this case, even were the court to assume that he did have to satisfy it, he could, under Agis v. Howard Johnson Co., 371 Mass. 140, 141 (1976) and Boyle, infra:
Although "hurt feelings resulting from bad manners, or relatively minor annoyances do not justify recovery for intentional or reckless infliction of emotional distress," claims should go to the jury "if reasonable people could differ on whether the conduct is 'extreme and outrageous.'" Boyle v. Wenk, 378 Mass. 592, 595-97 (1979). Under this lenient standard, courts have allowed claims to go forward in cases not particularly more shocking than the one at hand. For example, in Agis, the plaintiff was a waitress employed at the defendant's restaurant. Agis, 371 Mass. at 141 (1976). The manager called a meeting of the wait staff and announced that he knew one of them was stealing from the restaurant, and that "until the person or persons responsible were discovered, he would begin firing all the present waitresses in alphabetical order, starting with the letter 'A.'" The manager then fired Agis, the plaintiff. Id. The court held that this sufficiently stated an emotional distress claim. Id. at 145. In Boyle, the court held that it was for a jury to decide whether the plaintiff had an emotional distress claim against a defendant who repeatedly called and harassed her even though she was recovering from a stay in the hospital and repeatedly begged the defendant to leave her alone. See Boyle, 378 Mass. at 593-94.
Columbus v. Biggio, 76 F.Supp.2d 43, 56-57 (D.Mass. 1999). Pocahontas and Plumber, by pressuring Colorone and McBroghan to prosecute Smith, engaged in comparable conduct.As a direct result of being falsely arrested and imprisoned, and wrongly prosecuted, and having suffered an unlawful visual body cavity strip-search, Smith was caused embarrassment, worry, grief, stress, humiliation, anxiety, fear, loss of trust, feelings of betrayal, shock, and emotional scarring, all compensable as emotional distress . . . and all of a much more serious nature than the emotional distress suffered by either Agis or Boyle.
12. Where Colorone and McBroghan were the agents of the Big City and even though they are indemnified for negligence by the Big City, dismissal of Smith's negligence claims against Colorone and McBroghan is inappropriate.
Smith does not dispute that Colorone and McBroghan are indemnified, under G.L. c. 258, by the Big City. They were agents of the City and therefore must be included in the count. Medeiros v. Middlesex Ins. Co., 48 Mass.App.Ct. 51, 55 (1999), citing Gangl v. Ford Motor Credit Co., 37 Mass.App.Ct. 561, 563 (1994): "a judgment holding an agent or servant not negligent 'compels a similar finding, as matter of law, for the principle or master.'" An agent is a proper party. An agent's acts bind the principal. The jury would have to find Colorone and McBroghan liable, before the indemnity by the Big City would kick in. Gangl, at 563-564.
The dismissal of the negligence claim against Colorone and McBroghan would be a dismissal not only of the actionable issue against the officers but also of the basis for a finding of tort liability of the Big City, and would be equivalent of an adjudication on the merits. Medeiros, at 54-55.
In Taplin v. Chatham, 390 Mass. 1, 3 (1983), cited by Colorone and McBroghan , can be distin-guished from the instant case in that the agent's statutory immunity did not extend to the principal against whom liability was sought under the doctrine of respondeat superior. Gangl, at 563.
WHEREFORE, Plaintiff prays that Colorone and McBroghan's motion to dismiss be denied.
4 September 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