Civil Action No. 01-30210-MAP (Docket Nos. 8 and 11)
October 28, 2002.
REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTIONS TO DISMISS
Migdalia Lorenzo ("Lorenzo"), along with her common-law husband, Angel Soto ("Soto"), and their minor child, Angel Soto, Jr. ("Angel"), (together "Plaintiffs"), allege that a traffic stop initiated by Massachusetts State Police Officer David Gallant ("Gallant"), who was then joined by three other troopers, violated their civil rights. Gallant and the other troopers — Patrick White ("White"), Michael Galluccio ("Galluccio") and "John Doe" ("Doe") — (together "the officers"), have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's complaint. A separate motion to dismiss has been filed by the two other defendants, Massachusetts State Police Commander Charles Appleton ("Appleton") and the Commonwealth itself.
Both motions have been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons stated below, the court recommends that the Commonwealth and Appleton's motion to dismiss be allowed in full and that the officers' motion to dismiss be allowed in part.
I. STANDARD OF REVIEW
In determining whether to dismiss a complaint pursuant to Rule 12(b)(6) for failing to state a claim upon which relief may be granted, the court must accept the plaintiff's factual averments as true, "extending . . . every reasonable inference in his favor." Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir. 1992). The complaint may be dismissed if the plaintiff cannot prove, beyond a doubt, that facts supporting his claims entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir. 1987).
The following facts are alleged in Plaintiffs' complaint. Lorenzo and Soto are Hispanic. (Complaint ¶ 11.) Their son, Angel, was six months old on the day of the incident, September 20, 2000. (Id.) Previously that summer, Soto and Lorenzo had moved, with Angel, from Puerto Rico to Holyoke, Massachusetts. (Id. ¶ 12.) Prior to the incident, neither of them had ever been in trouble with the police. (Id.)
Soto owns a grey, 1990 Pontiac sedan. (Id. ¶ 13.) The car is legally registered in Massachusetts and has a valid inspection sticker. (Id.) In addition, Soto and Lorenzo have mounted a six by four inch decal of a Puerto Rican flag on the front window of the vehicle, directly behind the rearview mirror. (Id. ¶ 14.) The decal, Plaintiffs contend, is "clearly visible" to anyone outside the car. (Id.)
On the morning of September 20, 2000, Soto and Lorenzo were taking Angel to Northampton for a routine pediatric checkup. (Id. ¶ 15.) Soto drove the Pontiac and Lorenzo sat in the front seat beside him; both were wearing seat belts and Angel was strapped into a carrier secured to the back seat of the car. (Id.) The family traveled through Holyoke and entered Interstate 91 at exit 16. (Id. ¶ 16.) They then proceeded north on Interstate 19 until they reached exit 19. (Id.) At that point, their journey was interrupted.
As they were exiting the highway, Lorenzo and Soto noticed a state police cruiser that "had passed the exit" and which "then backed up and followed them down the exit ramp." (Id.) Once behind them, the cruiser's lights and sirens began to flash. (Id.) Soto immediately pulled over and the cruiser, driven by Trooper Gallant, parked behind him. (Id. ¶¶ 16, 17.)
Gallant, upon approaching the passenger side of the Pontiac, asked Lorenzo if there were any weapons or drugs in the car. (Id. ¶ 17.) When she said there were not, he requested the car registration and Soto's driver's license. (Id.) As Soto handed Gallant the registration, Lorenzo explained that Soto did not have his license with him because he had sent it back to Puerto Rico to be renewed. (Id.) Gallant told Lorenzo that he was unable to check with Puerto Rican authorities to verify that Soto, indeed, had a valid driver's license. (Id. ¶ 17.) Lorenzo then asked him why he had stopped them, to which Gallant replied that he "had received a radio call that they had drugs in the car." (Id. ¶ 18.) After this brief exchange, Gallant returned to his cruiser, leaving Plaintiffs in their car. (Id.)
In fact, Soto's driver's license had "expired." (Id. ¶ 25 n. 1.)
Shortly thereafter, Troopers White, Galluccio and Doe arrived in three separate cruisers. (Id. ¶ 19.) All four officers approached the Pontiac, whereupon Gallant told Soto to get out of the car. (Id.) Soto complied and was subjected to "a complete body search." (Id.) When no drugs or weapons were found, the officers allowed Soto to stand next to the Pontiac. (Id.)
At oral argument, the court asked Plaintiffs' counsel to define a "complete body search." Counsel replied that, while she did not believe that the officers searched beneath Soto's clothes, they "really felt" his body for drugs and weapons.
Gallant then ordered Lorenzo out of the car, refusing to let her (or Soto) pick up Angel who, by that point, was screaming (Id. ¶ 20.) Outside, Lorenzo told Gallant that if she was to be searched, he would have to send for a female trooper. (Id. ¶ 21.) Gallant agreed not to search Lorenzo once he determined that she had no pockets in which drugs or weapons could be concealed. (Id.) During the entire time that Lorenzo and Soto were being questioned, Angel remained strapped in his car seat "screaming and sobbing at being separated from his parents." (Id.)
Ascertaining that neither Lorenzo nor Soto had any drugs or weapons on them, Gallant and either Galluccio or Doe then began to search the interior of the Pontiac. (Id. ¶ 22.) During that search, White, who remained outside the vehicle with Lorenzo, advised her that the reason that Gallant stopped them was because the state police "were stopping everyone that came from Holyoke." (Id.)
Gallant searched the front seat of the Pontiac. (Id. ¶ 23.) The other officer (Galluccio or Doe) searched the back and, in doing so, "leaned over" Angel, "poked and jammed his fingers along [Angel]'s sides and between [his] back and the infant seat" and "slid his hand underneath [Angel]'s bottom." (Id.) When he found neither drugs nor weapons, the officer then "dumped out [Angel's] diaper bag, spilling baby cereal all over the car." (Id.) During the episode, Angel emitted "anguished screams" which his parents could hear. (Id. ¶ 24.)
After the car was completely searched and no drugs or weapons were found, Gallant allowed Lorenzo to pick up and comfort Angel. (Id.) Soto was then cited for driving without a license and his car was towed to a nearby garage. (Id. ¶ 25.) Plaintiffs later retrieved the car with the help of friends. (Id.)
Following the incident, Gallant filed an official investigation ("GIST") report. (See id. ¶¶ 28-36.) According to the report, Gallant had been stopped along the northbound side of Interstate 91, attending to another vehicle, when an unidentified motorist pulled up behind him. (Id. ¶ 29.) That motorist told Gallant that the occupants of a "grey vehicle" traveling north on the highway were "using cocaine" and gave Gallant the first four digits of the vehicle's license plate. (Id. ¶ 28.) Because of the motorist's description, Gallant reported, he "immediately headed north" in his cruiser. (Id. ¶ 29.) "As I approached exit 19," the report continues, "I observed a vehicle matching the description getting off [Interstate] 91 onto exit 19." (Id. ¶ 33.) Gallant then "followed [the vehicle] and observed that the registration was Mass. 4687NP," the first four numbers of which purportedly matched those given to him by the motorist. (Id.) Plaintiffs assert that Gallant's GIST report is a complete fabrication. (Id. ¶¶ 30-36.)
While a copy of Gallant's GIST report is not attached to Plaintiffs' complaint, it is extensively quoted and relied upon therein and Plaintiffs do not dispute its authenticity. Accordingly, the court has considered it with respect to these motions to dismiss. See Alternative Energy, Inc. v. St. Paul Fire Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) ("In ruling on a [Rule 12(b)(6)] motion to dismiss, . . . [while,] [o]rdinarily, a court may not consider any documents that are outside of the complaint[,] . . . [t]here is . . . a narrow exception for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs claim; or for documents sufficiently referred to in the complaint.") (citations and internal quotation marks omitted).
Plaintiffs commenced this seven-count action on November 26, 2002. The first five counts are directed at Gallant and the other officers. Count One alleges that the officers' actions on September 20, 2000, constituted "racial profiting" in violation of Plaintiffs' rights under the Fourth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983 ("section 1983"), and the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. L. ch. 12, §§ 11H and 11I. Count Two claims the officers are liable for "false imprisonment," Count Three alleges "assault and battery," Count Four claims "reckless" or "intentional infliction of emotional distress," and Count Five alleges "negligent infliction of emotional distress."
Count Six targets Appleton. It contends that Appleton is liable for negligent training, supervision, investigation and discipline. Count Six also mentions section 1983 and the MCRA. Finally, Count Seven — improperly designated in the complaint as a second "Count Six" — claims that the Commonwealth itself is liable for negligence under Mass. Gen. L. ch. 258, § 4.
The court will first address the Commonwealth and Appleton's motion to dismiss Counts Six and Seven. It will then turn to the officers' motion to dismiss Counts One through Five. In the end, the court will recommend that the Commonwealth and Appleton's motion to dismiss should be allowed in toto and that the officers' motion to dismiss should be allowed in part.
A. THE COMMONWEALTH AND APPLETON'S MOTION TO DISMISS
In their motion to dismiss, the Commonwealth and Appleton first argue that, as the "state," they are immune from suit under the Eleventh Amendment to the United States Constitution. Plaintiffs concede the strength of that argument and, thus, assent to the "voluntary dismissal" of all of Count Seven and that part of Count Six directed at Appleton in his official capacity. (Docket No. 16 ("Plaintiffs' Brief No. 1") at 3.) Thus, the only issue remaining is whether Count Six should survive against Appleton in his individual (or personal) capacity. In the court's view, Count Six fails to state any claim against Appleton personally upon which relief may be granted.
Construing the complaint liberally, Count Six appears to consist of three separate causes of action. Most obviously, Count Six is a "negligence" claim: its title alleges that Appleton is liable to Plaintiffs for "negligent training, supervision, investigation and discipline"; it describes Appleton as failing to adequately supervise, train, instruct, investigate, control or discipline the officers (see Complaint ¶¶ 65-68); it asserts that Appleton's actions have been "grossly negligent" or "deliberately indifferent" (id. ¶¶ 65, 67); and Plaintiffs' memorandum characterizes Count Six simply as alleging "gross negligence" (Plaintiffs' Brief No. 1 at 6). Despite its title, Count Six also sets forth a federal constitutional claim; it alleges that "[t]he policy custom and/or usage of Troop B under the command of . . . Appleton violates the Constitution of the United States" pursuant to section 1983. (Complaint ¶¶ 70, 71.) Count Six also alleges that the same "policy, custom and/or usage" violates Plaintiff's civil rights under the MCRA. (Id.)
The court will first discuss the federal and state constitutional components of Count Six. It will then address Count Six as a negligence-based cause of action.
1. Federal Constitution
To the extent Count Six is construed as a section 1983 claim targeting Appleton personally, the court will recommend it be dismissed. Generally, a section 1983 cause of action exists where a defendant, acting under the color of state law, deprives a plaintiff of a right secured under the Constitution or laws of the United States. See Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995); Daniele v. City of Springfield, 973 F. Supp. 222, 226 (D.Mass. 1997). Plaintiffs' section 1983 claim against Appleton, however, merely suggests that he is an up-the-chain link to the officers' allegedly unconstitutional actions. To state a cognizable claim on that basis, Plaintiffs must "depict a scenario that would permit a fact-based inference that [Appleton himself was] guilty of conduct that amounted to condonation or tacit authorization of wrongdoing." Rogan v. Menino, 175 F.3d 75, 78 (1st Cir. 1999) (citations and internal quotation marks omitted). As Count Six fails to "allege (or even insinuate) that [Appleton] participated in the actions that purportedly violated [Plaintiffs'] rights," id., the court believes that it fails to state a section 1983 claim upon which relief may be granted. See also Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (explaining that supervisory liability under section 1983 requires proof of an affirmative link sufficient to show causation).
Analytically, this case is identical to, although less compelling from a plaintiff's perspective than, Martinez v. Wolferseder, 997 F. Supp. 192 (D. Mass. 1998). There, several rogue police officers — apparently upset after a futile search for the source of gunfire — proceeded to punch, spit at, handcuff, aim their weapons toward and, ultimately, arrest several innocent people. A few officers also shouted "Spic" at one victim, an Hispanic man who had begun to seize with epilepsy. Id. at 193-94. In response, the plaintiffs sued the officers' supervisor, the town's chief of police. The complaint, not unlike the one here, alleged that the chief, in violation of the plaintiffs' federal and state constitutional rights, "1) hired violent and mentally unstable people, 2) failed to supervise them, 3) failed to develop and administer policies regarding excessive force and 4) failed to develop and administer policies regarding hiring and training." Id. at 195. The court dismissed these claims pursuant to Rule 12(b)(6).
The court first observed that the doctrine of respondeat superior was inapplicable and, thus, concluded that the chief could not be sued under section 1983 in his official capacity. Id. at 195 (citing, inter alia, Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 692 (1978)). More importantly for purposes here, the court found that the complaint did not allege that the chief "was present at the scene, . . . took any action with respect to the arrests, . . . took any action at all . . . or had any contact with the plaintiffs." Id. at 194. Since there was no allegation that the chief "personally violated [the plaintiffs'] federal constitutional rights," the court concluded, the complaint failed to state a section 1983 claim against him in his individual capacity. Id. at 195.
The same conclusion should be reached here. As in Martinez, there is no allegation in the instant complaint that Appleton was present at the scene, took any action with respect to the events of September 20, 2000, or had any contact whatsoever with Plaintiffs. At most, the complaint alleges that Appleton is liable by virtue of his supervisory title. Under Martinez, that is insufficient. See also Figueroa v. Molina, 725 F. Supp. 651, 653 (D.P.R. 1989) ("[I]t is not enough for plaintiff to imply guilt by association; [he] must show in the complaint that [the defendant-supervisor] was personally involved and responsible for the alleged deprivation of plaintiff's constitutional rights."). Compare Rodriguez v. California Hwy. Patrol, 89 F. Supp.2d 1131, 1137 (N.D.Cal. 2000) (class action complaint alleging that individual supervisors "personally participated in racial profiling" and "acted jointly and in concert with others who racially profiled" survived motion to dismiss). Accordingly, the court will recommend that Plaintiffs' section 1983 claim against Appleton in his individual capacity be dismissed for failing to state a claim upon which relief may be granted. The court, therefore, does not address Appleton's alternative argument that he is entitled to qualified immunity.
For essentially the same reasons, the court will recommend dismissal of Count Six insofar as it purports to state a MCRA claim against Appleton in his individual capacity. The MCRA is the state "counterpart" to section 1983 and is basically "coextensive with" the federal statute. Chilson v. Polo Ralph Lauren Retail Corp., 11 F. Supp.2d 153, 158 (D.Mass. 1998); Batchelder v. Allied Stores Corp., 473 N.E.2d 1128, 1130-31 (Mass. 1985). Because the court believes that the section 1983 allegations targeting Appleton fail to state a claim upon which relief may be granted, the concomitant MCRA claim should be dismissed as well.
Should this recommendation be rejected, the court believes that Plaintiffs' MCRA claim faces another insurmountable hurdle. The MCRA prohibits any person from interfering or attempting to interfere with the exercise of any constitutional or statutory rights by "threats, intimidation, or coercion." Mass. Gen. L. ch. 12, § 11I. See Bally v. Northeastern Univ., 532 N.E.2d 49, 52 (Mass. 1989). As in Martinez, however, Plaintiffs "have not alleged that [Appleton] personally engaged in any acts that constituted threats, intimidation or coercion, and, therefore, they have not stated a MCRA claim against him in his individual capacity." Id., 997 F. Supp. at 195. See also Canney v. City of Chelsea, 925 F. Supp. 58, 70 (D.Mass. 1998) ("[M]ere recitals of boilerplate claims of `threats, intimidation, or coercion' do not meet the requirements of Massachusetts civil rights pleading. . . .") (citation and further internal quotation marks omitted); Layne v. Sup't, Mass. Correctional Inst., 546 N.E.2d 166, 168 (Mass. 1989) (indicating that "essential element" of MCRA violation is threat, intimidation or coercion).
Finally, the negligence component of Count Six, in this court's view, should also be dismissed. As the parties agree, Plaintiffs' negligence claim against Appleton, a public employee, is governed by the Massachusetts Tort Claims Act ("MTCA"), Mass. Gen. L. ch. 258, § 1 et seq. In pertinent part, the MTCA states that "no . . . public employee . . . shall be liable for any injury . . . caused by his negligent or wrongful act or omission while acting within the scope of his office or employment." Mass. Gen. L. ch 258, § 2. Thus, so long as Appleton was "acting within the scope of his office or employment," he cannot be found liable to Plaintiffs for negligence under the MTCA.
Several cases compel the conclusion that the "scope of employment" question must be resolved in Appleton's favor. The court in Martinez, for example, in addition to dismissing the section 1983 and MCRA claims targeting the chief of police, threw out several negligence claims directed at him. Id., 997 F. Supp. at 195. As described, the Martinez complaint, like the one here, alleged that the chief negligently failed to hire or supervise the officers under his charge and failed to develop and administer policies on excessive force, firing and training. Id. Those contentions, the court determined, could not survive the chief's motion to dismiss since, under Mass. Gen. L. ch. 258, § 2, his alleged negligence obviously "occurred while he was acting within the scope of his employment." Id. A similar result was reached in Taplin v. Town of Chatham, 453 N.E.2d 421, 422 (Mass. 1983).
The two cases relied upon by Plaintiffs do not help their cause. In the first, the Massachusetts Supreme Judicial Court directed that the scope of one's employment should be construed "liberally" and held that allegedly defamatory statements by the chair of a town's finance committee to the town's chief administrative officer were made within the scope of the chair's employment, even though the conversation in which the statements were made was not sanctioned by the town's bylaws. Howard v. Town of Burlington, 506 N.E.2d 102, 105-06 (Mass. 1987). "To adopt a restrictive view of the scope of employment," the court reasoned, "would be inconsistent with the purposes of the statute and would encourage public officials to view their duties in an unreasonably restrictive manner." Id. at 106. That is true here as well.
The second case similarly cautions that "scope of employment" issues should not be considered restrictively and, in yet other ways, is unhelpful to Plaintiffs. See Wang Labs, Inc. v. Bus. Incentives, Inc., 501 N.E.2d 1163, 1166-67 (Mass. 1986). To determine whether an employee's conduct was within the scope of his employment such that his employer could be held liable under Mass. Gen. L. ch. 93A for his actions, the Supreme Judicial Court held, it was appropriate to consider factors such as whether the conduct of the employee "is of the kind he is employed to perform[,] . . . occurs substantially within the authorized time and space limits[,] and . . . is motivated, at least in part, by a purpose to serve the employer." Id. at 1166 (citations omitted). With regard to the last factor, the court further held that "[t]he fact that the predominant motive of the agent is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority." Id. at 1166-67 (citations omitted).
If Wang Labs were applicable here — it involved a scope of employment question under the Massachusetts consumer protection statute — it would mean that, even if Appleton's "predominant motive" in negligently training the officers was to benefit himself — and there is no allegation in the complaint to that effect — his actions would nonetheless be within the scope of his employment so long as they were "within the purview of his agency." Plaintiffs' complaint, however, contains no hint that Appleton did anything outside the purview of his job as a state police commander. Rather, Count Six repeatedly alleges that Appleton's negligent actions were simply "pursuant to an unconstitutional custom or policy." (Complaint ¶¶ 65, 66 and 69 (emphasis added).) Thus, Wang Labs also counsels for the dismissal of Count Six insofar as it targets Appleton for negligence.
It may well be that Plaintiffs are attempting to evade the "scope of employment" issue by describing Appleton's acts or omissions as "gross negligence" which is "[a]lso termed reckless negligence." BLACK'S LAW DICTIONARY (7th ed. 1999). After all, Mass. Gen. L. ch. 258, § 10(c) provides that certain sections of the MTCA "shall not apply to . . . any claim arising out of an intentional tort. . . ." This attempt is, at best, short-lived. The Massachusetts courts are clear that allegations of "reckless" conduct do not fall within the section 10(c) exemption for intentional conduct. See Molinaro v. Town of Northbridge, 643 N.E.2d 1043, 1044 (Mass. 1995); Jackson v. Town of Milton, 669 N.E.2d 225, 227 (Mass.App. Ct.) rev. denied, 672 N.E.2d 538 (Mass. 1996); Forbush v. City of Lynn, 625 N.E.2d 1370, 1371-72 (Mass.App.Ct. 1994). See also Prosser Keeton on the Law of Torts § 34, at 211-12 (W. Page Keeton ed., 5th ed. 1984) ("most courts consider that `gross negligence' falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind").
For the reasons described, the court believes that Count Six, the only one purporting to target Appleton personally, fails to state either a federal constitutional, MCRA or negligence claim against him upon which relief may be granted. Accordingly, and because Plaintiffs have agreed to dismiss the rest of Count Six and all of Count Seven, the court will recommend that the Commonwealth and Appleton's motion to dismiss be granted in its entirety.
B. THE OFFICERS' MOTION TO DISMISS
The remaining counts (One through Five) are directed at the officers in their individual capacities only. In their motion, the officers argue that each of these counts fails to state a claim against them upon which relief may be granted. As explained below, the court believes that, indeed, no claims are property asserted against Galluccio or Doe, but that, to varying degrees, certain claims adequately target Gallant and White.
Granted, the complaint alleges that the officers are being sued in both their "individual" and "official" capacities. Plaintiffs, however, state in their memorandum of law that, "[p]ursuant to the Eleventh Amendment, [they] voluntarily agree to dismiss claims against the four troopers in their official capacit[ies]." (Docket No. 15 ("Plaintiffs' Brief No. 2") at 7.)
1. Racial Profiling (Count One)
Count One claims that the officers all engaged in unlawful "racial profiling." Unfortunately, the parties cite no analogous civil "racial profiling" cases from the Supreme Court, the First Circuit or any district judge within this circuit and, for purposes of analysis, it appears that "there is no binding racial profiling precedent." Elizabeth A. Knight William Kurnik, Racial Profiling in Law Enforcement: The Defense Perspective in Law Enforcement, 30-SUM Brief 16 (2001). Still, the court is not completely without guidance.
For one thing, the Federal Rules of Civil Procedure state that, generally, a complaint must only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). See also Fed.R.Civ.P. 8(e)(1) ("Each averment of a pleading shall be simple, concise, and direct."). According to the Supreme Court, under these "ordinary rules for assessing the sufficiency of a complaint[,] . . . [t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002) (citation and internal quotation marks omitted). Moreover, the Supreme Court is clear that civil rights claims against governmental bodies are ordinarily subject only to the normal standards of pleading found in Rule 8. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993).
The rules' relatively liberal pleading standards, however, are not absolute. For example, the rules also state that allegations of "fraud and mistake" should be pled "with particularity." Fed.R.Civ.P. 9(b). And while Leatherman held that heightened pleading is not generally required for civil rights claims targeting governmental bodies, it also suggested, as the First Circuit has noted, that "the result might be different in individual capacity actions against government officials." Judge v. City of Lowell, 160 F.3d 67, 73 (1st Cir. 1998) (citing Leatherman, 507 U.S. at 168). In fact, five years after Leatherman, the Supreme Court took this "suggestion" one step further and stated that when a government official is targeted for engaging in illegal discrimination, "the [trial] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal. . . ." Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (citations and internal quotation marks omitted).
To be sure, this last quoted statement from Crawford-El is dicta. Nonetheless, the suggestion that civil rights plaintiffs may be required to plead "specific, nonconclusory factual allegations that establish improper motive" by a governmental official is considered by the First Circuit to be an affirmation of its own pre-Leatherman decisions. See Judge, 160 F.3d at 74-75 (describing "unequivocal language" of Supreme Court's statement in Crawford-El as "strong dicta" in congruence with Dartmouth Review v. Dartmouth College, 889 F.2d 13 (1st Cir. 1989), and Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49 (1st Cir. 1990)). Accordingly, while the liberal pleading standards of Rule 8 generally apply in this circuit, in civil rights claims targeting governmental officials where "`improper motive' [is] an essential element for [the] plaintiff to prove," the plaintiff must plead "specific facts from which to infer illegal motive." Id. at 74 (quoting Crawford-El, 523 U.S. at 598). Otherwise, the complaint may be dismissed for failing to state a claim upon which relief may be granted.
In Dartmouth Review, decided four years prior to Leatherman, the First Circuit held that a civil rights plaintiff alleging race-based disparate treatment must plead "particulars sufficient to sanction a factfinder in drawing a reasonable inference of intentional disparate treatment based on race." Dartmouth Review, 889 F.2d at 19. Similarly, in Correz-Martinez, the First Circuit concluded that "the element of illegal motive must be pleaded by alleging specific non-conclusory facts from which such a motive may be reasonably inferred, not merely by generalized asseveration alone." Judge, 160 F.3d at 72 (summarizing Correa-Martinez, 903 F.2d at 51)).
With this guidance, the court now turns to Plaintiff's three "racial profiling" claims. Plaintiffs allege that the officers here engaged in racial profiling in violation of (1) the Fourth Amendment to the United States Constitution, (2) the Fourteenth Amendment's "Equal Protection Clause," and (3) the MCRA.
a. Fourth Amendment
Although Count One alleges a civil claim of "racial profiling" under the Fourth Amendment, Plaintiffs' memorandum of law provides virtually no assistance in analyzing this cause of action. Plaintiffs' exposition merely cites boilerplate criminal case law and argues that Gallant's so-called "anonymous tip" is incredible. (Plaintiffs' Brief No. 2 at 9-13.) Notably, Plaintiffs fail to outline the elements of a civil Fourth Amendment racial profiling claim and, more importantly, fail to argue how those elements should apply to the facts alleged in the complaint. Thus, the court has been left on its own.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." U.S. Const., Amend. IV. In the automobile context, the Fourth Amendment is violated when a motorist is stopped without reasonable suspicion of a traffic violation or crime and searched without consent or probable cause. Rodriguez, 89 F. Supp.2d at 1140 (citing, inter alia, Whren v. United States, 517 U.S. 806, 809-10 (1996)). Race or appearance alone may not supply either the reasonable suspicion for an unwarranted stop or the probable cause for a search. See United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975) (appearance of Mexican ancestry alone is insufficient to justify a stop or arrest under the Fourth Amendment); Rodriguez, 89 F. Supp.2d at 1140 n. 5 (describing the issue as "settled").
Most importantly for purposes here, the term "racial profiling" as applied in the Fourth Amendment context "necessarily implies a requisite degree of mental intent or discriminatory purpose." Knight Kurnik, 30 SUM Brief at 18. That being so, and given the pleading standards established by both Crawford-El and Judge, Plaintiffs are required to plead "specific facts from which to infer illegal motive" in order to establish their Fourth Amendment racial-profiling cause of action against each officer. Absent such a requirement, any officer could be sued for racial profiling merely for stopping or searching a motorist of another race. That approach to our jurisprudence could hardly be countenanced.
Although the question is close here, the court believes that Plaintiffs have sufficiently pled "specific facts from which to infer illegal motive" on the part of Gallant, the officer who allegedly stopped Plaintiffs solely because of their race. The court may fairly infer from the facts alleged that Gallant observed Plaintiffs' race, or perhaps the Puerto Rican flag decal, prior to pulling them over and that his later report — in which he explained that the stop was actually precipitated by a concerned motorist's tip — was fabricated. See Leatherman, 507 U.S. at 168; Crawford-El, 523 U.S. at 598; Judge, 160 F.3d at 74. And lest there be any doubt about what Gallant knew about Plaintiffs' race, the complaint alleges that Lorenzo specifically informed Gallant that they were Puerto Rican.
In the court's view, it may also be inferred that White — although not the "stopping" officer — acted with an improper motive as well. See Rodriguez, 89 F. Supp.2d at 1140 (noting that racially-motivated actions by officers after lawful stop may, too, violate the Fourth Amendment). See also Florida v. Royer, 460 U.S. 491, 500 (1983) ("[T]he investigative methods employed should be the least intrusive means reasonably available to confirm or dispel the officer's suspicion in a short period of time."). Unlike Gallant or the other officers, White allegedly advised Plaintiffs that the state police "were stopping everyone that came from Holyoke." Not only might this statement be deemed patently false, it could well be read to infer that White, like Gallant, was motivated by racial bias.
The court takes judicial notice of the fact that Holyoke is a city with an Hispanic-Latino population of over forty percent. See Massachusetts Department of Housing and Community Development, Profile of General Demographic Characteristics: 2000 (http://www.state.ma.us:80/dhcd/iprofile/137.pdf) (last visited Oct. 28, 2002) (noting that, as of 2000, 41.4% of Holyoke residents are Hispanic-Latino, most of whom are Puerto Rican).
To be sure, Gallant and White's brief words and actions are exceedingly thin reeds upon which to ultimately find unlawful racial profiling. Still, they represent specific facts raising an inference of improper motive on the part of these two officers, and the court is unwilling at this time to suggest that Plaintiffs be denied the opportunity to pursue through discovery Gallant and White's potential liability under the Fourth Amendment. See Sabree v. United Bhd. of Carpenters Joiners Local No. 33, 921 F.2d 396, 399 (1st Cir. 1990) (noting reluctance to dismiss discrimination suits that turn of the issue of motive or intent).
On the other hand, the court believes that Galluccio and Doe ought to be dismissed from Plaintiffs' Fourth Amendment racial-profiling claim. At most, Galluccio or Doe (the complaint does not specify exactly who) assisted in searching Soto and the back seat of the car for drugs or weapons. Their actions, however, were entirely directed by Gallant, the de facto officer in charge. (See, e.g., Complaint ¶¶ 19 (Gallant ordered Soto out of the car), 20 (Gallant ordered Lorenzo out of the car), 21 (Gallant made decision to not search Lorenzo) and 24 (Gallant made decision to finally allow Lorenzo to pick up and comfort Angel).) More importantly, unlike the situation with White, there are no statements or other evidence raising an inference that Galluccio or Doe were motivated by a discriminatory purpose.
b. Fourteenth Amendment Equal Protection Clause
The Supreme Court has stated with respect to racial profiling that the most logical "constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause." Whren, 517 U.S. at 813. The Court has also held that a plaintiff in an equal protection claim carries the burden of proving that a discriminatory purpose motivated the defendant's decisions and actions. See Village of Arlington Heights v. Metro. Housing Dev't Corp., 429 U.S. 252, 270 (1977). Thus, as with the Fourth Amendment part of Count One, Plaintiffs must plead, with respect to each officer, "specific facts from which to infer illegal motive" in violation of the Equal Protection Clause. See Crawford-El, 523 U.S. at 598; Judge, 160 F.3d at 74. "Otherwise, the floodgates would be opened to federal court any time `a [minority] arrested a white or a white arrested a [minority].'" Knight Kurnik, 30 SUM-Brief at 19 (quoting Ford v. Wilson, 90 F.3d 245, 248-49 (7th Cir. 1996)).
Given such requirements, the court believes, for the exact reasons described above with respect to Plaintiffs' Fourth Amendment claim, that Plaintiffs' equal protection claim should survive insofar as it targets Gallant and White, but be dismissed insofar as it is directed at Galluccio and Doe. As discussed, there are minimally sufficient, specific facts from which to infer an illegal motive on the part of Gallant and White, but no such facts directed at Galluccio or Doe.
As indicated above with respect to Appleton's motion to dismiss, the MCRA is the state counterpart to section 1983 and is basically coextensive with the federal statute. In the court's view, therefore, because Galluccio and Doe cannot be found liable for a federal constitutional violation under section 1983, the MCRA portion of Count One also fails to state a claim against them upon which relief may be granted. against them.
As for Gallant and White, however, the court must consider whether the complaint sufficiently alleges that they engaged in "threats, intimidation, or coercion," Mass. Gen. L. ch. 12, § 11I, mindful again that "mere recitals of boilerplate claims of `threats, intimidation, or coercion' do not meet the requirements of Massachusetts civil rights pleading." Canney, 925 F. Supp. at 68 (citation and further internal quotation marks omitted). For MCRA purposes, a "`threat' involves the intentional exertion of pressure to make another fearful or apprehension of injury or harm," "`[i]ntimidation' involves putting in fear for the purposes of compelling or deterring conduct," and "`[c]oercion' involves the application to another of such force, either physical or moral, as to constrain a person to do against his will something he would not otherwise have done." Chilson, 11 F. Supp.2d at 158 (citations and further internal quotations marks omitted).
In the court's view, the instant complaint neither states nor implies that White subjected Plaintiffs to such threats, intimidation or coercion. White's statement — that the state police "were stopping everyone that came from Holyoke" — while perhaps false and motivated by racial prejudice, was not threatening, intimidating or coercive. It was simply what White "advised" Lorenzo as they were standing outside the vehicle. Accordingly, the court will recommend that the MCRA part of Count I be dismissed as to him.
As for Gallant, however, the court believes that the complaint alleges enough facts, albeit barely, that he engaged in "threats, intimidation, or coercion." For example, the complaint alleges that Gallant was the officer who pulled Plaintiffs over, ordered Soto and Lorenzo out of the car, "forced [them] to stand exposed to all the passing motorists on [an] extremely busy intersection," (Complaint ¶ 27), refused to let them pick up their screaming son until after the search was completed, and concocted a story to justify his actions. As a result, the complaint continues, "[P]laintiffs suffered severe and extreme emotional distress and mental anguish including, but not limited to, public humiliation, fear of police, stress, anxiety, and sleep disturbances. (Id. ¶ 49.) Accordingly, the MCRA part of Count I should stand against Gallant.
In summary, the court will recommend that the motion to dismiss Count One be denied insofar as Gallant and White are targeted for racial profiling in violation of the Fourth Amendment and the Equal Protection Clause and insofar as Gallant is targeted for racial profiling in violation of the MCRA. In all other respects, however, the court believes that Count One fails to state racial profiling claims upon which relief may be granted and, therefore, will recommend that the motion to dismiss it be allowed.
2. False Imprisonment (Count Two)
The officers' argument with respect to Plaintiffs' false imprisonment claim (Count Two) is a bit perfunctory. They simply state that "[t]he stop and seizure . . . was based on reasonable suspicion and[,] therefore, [they] are immune from a false imprisonment claim." (Docket No. 9 ("The Officers' Brief") at 13.) As indicated, however, the court believes that Plaintiffs have adequately alleged that Gallant's and White's actions were not based on reasonable suspicion or probable cause. Thus, with respect to Gallant and White at least, the court will recommend that the officers' motion to dismiss Count Two be denied.
As to Galluccio and Doe, however, the court will recommend that the motion to dismiss Count Two be allowed. Indeed, Plaintiffs offer no specific argument for maintaining the false imprisonment claim against Galluccio and Doe. Plaintiffs' memorandum merely states that, "[w]ithout legal justification, the defendant troopers falsely imprisoned . . . [P]laintiffs when they held them against their will." (Plaintiffs' Brief No. 2 at 17.) This conclusory statement, of course, is inadequate to allow Count Two to survive against Galluccio and Doe. See United States v. Ramirez-Rivera, 241 F.3d 37, 40 (1st Cir. 2001) ("Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out his arguments squarely and distinctly, or else forever hold his peace.") (citations and internal quotation marks omitted).
3. Assault and Battery (Count Three)
The officers contend that the viability of Count Three, in which Plaintiffs' assault and battery claims are pled, is inextricably intertwined with the alleged Fourth Amendment violation. See Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991) (observing that "[t]he reasonableness of the force used is determined," inter alia, "with reference to the need for the arrest"). Plaintiffs do not disagree. (See Complaint ¶ 41 ("Because the [officers] had no legal justification for their actions, their stop, seizure and search of . . . [P]laintiffs constitute the common law tort of . . . assault and battery.").) In fact, Plaintiffs admit that Lorenzo was not touched and, therefore, specifically accede to the dismissal of her assault and battery claim. (See Plaintiffs' Brief No. 2 at 17.)
In the court's view, Angel's parallel assault and battery claim should be dismissed as well. The only officer who may have touched Angel was Galluccio or Doe, both of whom the court believes acted properly under the alleged circumstances. See Dean, 924 F.2d at 368-69 ("It has long been recognized that `the right to make an arrest or an investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.'") (quoting Graham v. Connor, 480 U.S. 386, 396 (1989)).
Accordingly, the court will recommend that the only portion of Count Three that should escape dismissal is Soto's assault and battery claim against Gallant and White. The officers' argument at this time is that "[a]ny touching [of Soto] was done pursuant to the [lawful] stop." (The Officers' Brief at 14.) To the extent the court believes that Gallant and White's actions may have violated the law, the "touching" of Soto may be considered unlawful as well.
4. Emotional Distress Claims (Counts Four and Five)
Count Four alleges that the officers are each liable to Plaintiffs for the intentional or reckless infliction of emotional distress, while Count Five asserts that the officers are liable to Plaintiffs for the negligent infliction of emotional distress. The court will discuss these claims in reverse order.
a. Negligent Infliction of Emotional Distress
Like Appleton, the officers argue they were, at all relevant times, "acting within the scope of [their] office or employment," Mass. Gen. L. ch. 258, § 2, and, therefore, are not liable for the negligent infliction of emotional distress. For their part, Plaintiffs argue that the officers were not hired "to violate the [c]onstitutional rights of citizens" and, accordingly, must have been acting outside the scope of their employment. (Plaintiffs' Brief No. 2 at 18.) For the reasons that follow, the court believes that the complaint adequately alleges that Gallant and White (but not Galluccio or Doe) acted outside the scope of their employment.
As indicated above, case law construing Mass. Gen. L. ch. 258, § 2 supports the conclusion that Appleton's alleged failure as the state police commander to properly train the officers occurred within the scope of his employment. Those same cases, however, say nothing with respect to the same issue as it applies to officers.
Other Massachusetts decisions discussing "scope of employment" issues under section 2 also involve factual circumstances distinguishable from the case at bar. See, e.g., Canty v. Old Rochester Reg'l Sch. Dist., 54 F. Supp.2d 66, 71 n. 6 (D.Mass. 1999) ("Sexual misconduct, especially sexual assault and rape, by an employee is not considered an act performed within the scope of his or her employment.") (citing cases); Burroughs v. Commonwealth, 673 N.E.2d 1217, 1219 (Mass. 1996) (voluntary, uncompensated bartending is not within the scope of an off-duty national guard member's employment); Armstrong v. Lamy, 938 F. Supp. 1018, 1045 (D.Mass. 1996) (public school teacher's sexual contact with student is not within the scope of his employment).
The most factually similar decision to the case at bar that this court has unearthed is the Supreme Judicial Court's opinion in Pinshaw v. Metropolitan Dist. Comm'n, 524 N.E.2d 1351 (Mass. 1988). There, a police officer attempted to prosecute a citizen who had filed a complaint about the officer's "uncivil and threatening" demeanor. Id. at 1353. After the criminal charges against the citizen were dropped, the citizen filed and won a civil rights action against the officer and then brought an indemnification action against the city. Id. at 1354. As relevant here, the specific question before the Supreme Judicial Court in the indemnification action was whether the officer had acted "within the scope of his official duties" as that phrase is used in Mass. Gen. L. ch. 258, § 9A. See id. at 1356.
In pertinent part, section 9A states that the Commonwealth will indemnify state police officers from certain tort claims so long as the officer's actions or omissions "occurred within the scope of [his] official duties." Mass. Gen. L. ch. 258, § 9A.
In attempting to answer that question, the Supreme Judicial Court looked to decisions and commentary discussing section 2's "scope of office or employment" requirement. See id. The court observed as follows:
If an employee "acts from purely personal motives . . . in no way connected with the employer's interests, he is considered in the ordinary case to have departed from his employment. . . ." W. Prosser W. Keeton, Torts 506 (5th ed. 1984). See Miller v. Federated Dep't. Stores, Inc., 304 N.E.2d 573, 579 (Mass. 1973). However, "[t]he fact that the predominant motive of the [employee] is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority." Wang Labs, 501 N.E.2d at 1166. See Coleman v. Smith, 814 F.2d 1142 (7th Cir. 1987) (intentional false arrest); Prosser Keeton, supra at 506-07.
Id. Because the officer's motivation or state of mind was at issue, the court concluded, it could not resolve the "scope of official duties" issue as a matter of law. Id. at 1356-57. Instead, the court continued, the determination of the officer's motive was "a question of fact." Id. at 1357.
Here, Gallant and White's states of mind are clearly at issue and, for the reasons described, it can reasonably be inferred that they each acted pursuant to an improper motive. Thus, as in Pinshaw, this court believes it imprudent to prematurely conclude that Gallant's and White's actions were within the scope of their employment. Because Gallant and White give no alternative argument for dismissal, the court will recommend that they remain in Count Five.
Even so, the court, as indicated, deems the complaint insufficient to infer an improper motive on the part of either Galluccio or Doe. There are no factual allegations which support an inference that their actions in searching Plaintiffs and the car occurred outside the scope of their jobs. As a result, the court believes that the complaint fails to state a negligent infliction of emotional distress claim against Galluccio or Doe and, therefore, will recommend that they (but not Gallant or White) be dismissed from Count Five.
b. Intentional Infliction of Emotional Distress
The officers' argument with respect to Plaintiffs' intentional infliction of emotional distress claim (Count Four) invokes the elements of that tort. The officers argue two things: first, that no reasonable jury could conclude that their actions were "extreme and outrageous" and, second, that Angel could not have experienced severe emotional distress because he was, admittedly, "too young to understand what was happening." (Complaint ¶ 27.) But for the claim against Gallant, the court agrees.
First, the court agrees with the officers that Angel's claim for the intentional infliction of emotional distress fails to state a claim upon which relief may be granted. And, while generally reluctant to recommend dismissal of intentional infliction of emotional distress claims prior to discovery, the court believes that it is impossible to reasonably conclude from the facts alleged in the complaint that White, Galluccio or Doe's conduct was "extreme and outrageous." The Supreme Judicial Court has stated the following with respect to the "extreme and outrageous" requirement:
A principal bulwark against excessively broad recovery is the requirement that the defendant must have engaged in "extreme and outrageous" conduct. Thus, liability cannot be predicated upon mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, nor even is it enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort; rather, liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987) (citations and further internal quotation marks omitted). Simply stated, the actions of White (let alone Galluccio or Doe), even if ultimately found to be "characterized by malice," can not be considered under any circumstances to have been "atrocious" or "utterly intolerable in a civilized community." Accordingly, the court will recommend that White, Galluccio and Doe be dismissed from Count Four.
The court, however, will recommend that Gallant remain a defendant in this cause of action. If Gallant did, in fact, concoct an "anonymous tip" to justify racial profiling, and then engage in the other actions alleged, those facts, in this court's view, could reasonably be deemed "extreme and outrageous."
5. The Officers' Final Arguments
The officers make two brief, final arguments, both of which the court suggests should be rejected. First, the officers state they are entitled to qualified immunity. However, their "argument" in this regard contains only boilerplate case law and makes no attempt to apply that law to these facts. (See The Officers' Brief at 17-18.) As indicated, the court is not a "mindreader" and, thus, will not construct on its own the officers' qualified immunity defense.
Second, the officers argue that, should the court dismiss the federal claims, it ought not exercise supplemental jurisdiction over the remaining state law claims. See, e.g., 28 U.S.C. § 1367(c)(3) (sanctioning the declination of supplemental jurisdiction over claims remaining after "the district court has dismissed all claims over which it has original jurisdiction"). As explained, however, the court believes that portions of Plaintiffs' federal claims ought not be dismissed.
For the reasons stated, the court recommends the following with respect to the officers' motion to dismiss:
(1) as to Count One, the motion should be DENIED insofar as Gallant and White are personally targeted for racial profiling in violation of the Fourth Amendment and the Equal Protection Clause and insofar as Gallant is personally targeted for racial profiling in violation of the MCRA, but otherwise ALLOWED;
(2) as to Count Two, the motion should be DENIED insofar as Gallant and White are personally targeted for false imprisonment, but otherwise ALLOWED;
(3) as to Count Three, the motion should be DENIED insofar as Gallant and White are personally targeted by Soto for assault and battery, but otherwise ALLOWED;
(4) as to Count Four, the motion should be DENIED insofar as Gallant is personally targeted by Soto and Lorenzo for the intentional or reckless infliction of emotional distress, but otherwise ALLOWED; and
(5) as to Count Five, the motion should be DENIED insofar as Gallant and White are personally targeted for the negligent infliction of emotional distress, but otherwise ALLOWED.
In addition, the court, for the reasons stated, recommends that the Commonwealth and Appleton's motion to dismiss — which attacks Counts Six and Seven, the only counts targeting them — be ALLOWED in full.
The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health Human Services, 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof.