Pimentel v. City of Methuen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

PATRICIA PIMENTEL, on behalf of herself )

and all others similarly situated, )

)

Plaintiff, ) Civil Action No.

) 17-11921-FDS

v. )

)

CITY OF METHUEN, et al., )

)

Defendants. )

__________________________________________)

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTION TO DISMISS

SAYLOR, J.

This is a civil rights action arising out of the use of an incorrect Spanish-language advice-

of-rights form by the Methuen Police. Plaintiff Patricia Pimentel is a citizen of the Dominican

Republic who illegally immigrated to the United States in 2003. She was arrested for drunk

driving on October 21, 2014. After she was arrested, she was given an advice-of-rights form in

Spanish, her native language.

The Spanish version of the form included incorrect information; for example, it stated

that the legal limit for blood alcohol content (“BAC”) while driving was 0.10 percent (it was

actually 0.08 percent) and that a jury would be informed of her refusal to take a breathalyzer test

(it would not). She was then given a separate “Statutory Rights and Consent Form” that

correctly stated her rights. She then submitted to a breathalyzer test, which revealed her BAC to

be 0.25 percent, more than three times the legal limit.

Pimentel eventually received a continuance without a finding (“CWOF”) after admitting

to sufficient facts to one count of operating under the influence (“OUI”) and two counts of

leaving the scene of an accident causing property damage. That disposition, however, caused her

immigration problems; she had previously qualified for protection under the Deferred Action for

Childhood Arrivals (“DACA”) program, and the CWOF jeopardized that status.

After securing new counsel, Pimentel was able to obtain a new trial on the ground that

her prior counsel had rendered ineffective assistance. In its order, the state court stated that the

breathalyzer test likely would have been suppressed because the incorrect advice-of-rights form

coerced her consent. Prosecutors then agreed to dismiss one of the property-damage charges and

the remaining charges were resolved in a manner that did not threaten her immigration status.

Pimentel has now brought suit against the City of Methuen, the Methuen Chief of Police,

three police officers, and the Essex County District Attorney. Defendants have moved to dismiss

the complaint for failure to state a claim. For the following reasons, the motion will be granted

in part and denied in part.

I. Background

A. Factual Background

The facts are set forth as described in the complaint and attached exhibits.

1. Events Leading Up to Pimentel’s Arrest

Patricia Pimentel is a citizen of the Dominican Republic. (Compl. ¶ 80). Her primary

language is Spanish. (Id. ¶ 99).

In 2003, when Pimentel was nine years old, her parents paid a “coyote” (that is, a

smuggler) to bring her illegally into the United States. (Id. ¶ 81). After arriving in the United

States, she attended public schools in Lawrence, Massachusetts. (Id. ¶ 83). She graduated from

Lawrence High School in 2013. Although she hoped to enroll in college to study criminal

justice, her status as an illegal immigrant precluded her from qualifying for certain forms of

financial aid. (Id. ¶ 84).

On June 15, 2012, then-President Obama announced the creation of the Deferred Action

for Childhood Arrivals program, or DACA. (Id. ¶ 85). Among other things, DACA provided

that the federal government would not pursue immigration action against illegal immigrants who

were brought to the United States as minors, provided they were not convicted of serious crimes

or otherwise posed a threat to public safety. (Id. ¶ 86). The program allowed qualified

individuals to seek employment and higher education opportunities legally. (Id. ¶ 87).

Pimentel applied for DACA status on May 14, 2013, and her application was granted.

(Id. ¶ 88). She then began working in the packaging department at JMB Industries in Hudson,

New Hampshire. (Id. ¶ 89).

On the evening of October 21, 2014, Pimentel and two of her friends were drinking. (Id.

¶ 91). Pimentel was 20 years old at the time, and therefore under the legal drinking age. (Id.).

She became ill from the alcohol and called a taxi to bring her home. (Id. ¶ 92). One of her

friends offered to drive her home instead in Pimentel’s car. (Id.). That friend then got into an

argument with her husband over the phone while driving, and pulled up to her own home rather

than Pimentel’s. (Id. ¶ 93). Pimentel remained in the car in the driveway. (Id.).

According to the complaint, Pimentel then saw her ex-boyfriend sitting in a nearby car.

(Id. ¶ 94). He called her cell phone, and an argument ensued. (Id. ¶¶ 95-96). During the

conversation, she asked the boyfriend to stop following her, and he replied that he was going to

“fuck [her] up.” (Id. ¶ 96). After the boyfriend started walking towards her car, she panicked,

moved into the driver’s seat and began driving away. (Id.). She hit two nearby parked vehicles.

(Id. ¶ 97).

A short pursuit ensued, and the boyfriend cut her off at a stop sign. (Id.). He opened the

driver’s door to Pimentel’s vehicle and hit her in the face. (Id.). At that point, the boyfriend

heard police sirens and fled the scene. (Id. ¶ 98).

Methuen police officers Shawn Tardiff and David Souther were the first to arrive. (Id. ¶

99). Tardiff asked Pimentel for her license and registration and began to question her. (Id.).

Shortly afterward, a Spanish-speaking officer, Elvin Alacron, pulled up and joined in the

questioning, because she preferred to have an interpreter present. (Id.).

Tardiff and Alacron then asked Pimentel to perform various field sobriety tests. (Id. ¶

100). After concluding she was driving while under the influence of alcohol, they arrested her

and transported her to the Methuen police station. (Id.).

2. Pimentel is Given the Incorrect OUI Advice-of-Rights Form

Once at the police station, Pimentel was observed for 15 minutes by Alacron and

Lieutenant James Jajuga, who was the booking officer. (Id. ¶ 101). After the observation period,

Pimentel was given the Spanish-language version of the Methuen Police advice-of-rights form

given to persons arrested for OUI. The Spanish version included multiple incorrect statements of

law. (Id. ¶ 35).1

First, the form stated that if OUI arrestees refused to consent to a breathalyzer test, the

jury would be informed of that refusal. (Id. ¶ 36; Ex. 6). However, the Supreme Judicial Court

had held in 1992 that such an instruction would violate a defendant’s right against self-

incrimination. (Id. ¶ 37).

Second, the form stated that if the breathalyzer test results showed a BAC of 0.10 percent

or more, “it is presumed that you are driving under the influence of intoxicating liquor, and this

1 Exhibit 6 to the complaint is a proposed English translation of the Spanish advice-of-rights form.

proof can be used as evidence against you in court.” (Id. ¶ 38; Ex. 6). The form further stated

that “the court will suspend your license for a period of time up to 90 days.” (Id.). However, the

legal BAC level is 0.08 percent, not 0.10 percent, and the license-suspension penalty for

registering a BAC of 0.08 percent or higher is capped at 30 days, not 90. (Id. ¶ 39). The

complaint further alleges that the form omitted any mention of the “per se” theory of liability,

under which the state can convict a defendant of OUI simply by showing that the defendant

drove with a BAC higher than 0.08 percent. (Id.).

Third, the form stated that if the breathalyzer test showed a BAC higher than 0.05 percent

but lower than 0.10 percent, “there is no presumption that you are driving under the influence of

an intoxicating liquor.” (Id. ¶ 40; Ex. 6). Again, the legal BAC level is 0.08 percent. (Id. ¶ 41).

Fourth, the form stated that if the breathalyzer test result showed a BAC of 0.05 percent

or lower, the arrestee would be “liberated” or “set free” from the charge. (Id. ¶ 42; Ex. 6).

Although a BAC of 0.05 percent or lower creates a “permissible inference that such defendant

was not under the influence of intoxicating liquor,” a defendant can still be prosecuted for an

OUI if there is other evidence of impairment. (Id. ¶ 43). The form also did not include

information specific to drivers under the age of 21—specifically, that Massachusetts subjects

such drivers to certain penalties if their BAC is 0.02 percent or more. (Id.).

Fifth, the form stated that a refusal to submit to the breathalyzer test would result in a

120-day suspension of the arrestee’s driver license. (Id. ¶ 44; Ex. 6). However, the penalty for

refusing a breathalyzer test is a mandatory 180-day license suspension for drivers aged 21 or

over, and a mandatory three-year license suspension for drivers under age 21. (Id. ¶ 45).

After reviewing the Spanish advice-of-rights form, Pimentel signed the document a few

minutes after 2 a.m. on October 22. (Id. ¶ 103; Ex. 5). She was then given a “Statutory Rights

and Consent Form” that listed further rights in both Spanish and English, which she also signed.

(Id. ¶ 105; Ex. 11). The parties do not dispute that the Statutory Rights and Consent Form

correctly stated her rights. After signing both forms, Pimentel took the breathalyzer test, which

showed her BAC to be 0.25 percent. (Id. ¶ 108).

3. Subsequent Criminal Proceedings

Later that day, Pimentel was arraigned on one count of OUI and two counts of leaving

the scene of an accident causing property damage. (Id. ¶ 109). She received a court-appointed

attorney and discussed her immigration status with him. (Id. ¶ 110). She asked her attorney

whether she could obtain a CWOF and how the proceedings would affect her immigration status.

(Id. ¶ 112). The attorney replied that a CWOF would not constitute an adjudication of guilt,

preserving her DACA status. (Id. ¶ 113).

On January 6, 2015, Pimentel pleaded to sufficient facts, and a district court judge

continued the matter without a finding for one year. (Id. ¶ 114). As a consequence of the plea,

she lost her license for 210 days. (Id.). She was placed on probation, and was required to

complete a 14-day inpatient alcohol treatment program. (Id.). In addition, near the end of her

probation period, she was informed she had to participate in a 16-week first-time-offender

alcohol-education program. (Id.). The district court continued her probation four months so she

could complete the program. (Id.).

On April 30, 2015, Pimentel applied to renew her DACA status and employment

authorization, which were set to expire on May 13, 2015. (Id. ¶ 115). Approximately four

months later, on September 7, 2015, she received two letters from the Department of Homeland

Security denying her applications. (Id. ¶ 116). The letters stated that the applications were

denied because she had been convicted of “a felony or a significant misdemeanor.” (Id.; Exs. 13

and 14). Without the protection of DACA, she was potentially subject to deportation to the

Dominican Republic. (Id. ¶ 118).

Pimentel then sought new counsel. (Id. ¶ 119). At some point in December 2015, she

learned that the Spanish version of the advice-of-rights form had included incorrect information.

(Id. ¶ 120). On July 26, 2016, her attorney moved for a new trial on the ground of ineffective

assistance of counsel—specifically, that her prior plea was constitutionally invalid because her

prior counsel had failed to advise her of the consequences to her immigration status and did not

explore a motion to suppress the breathalyzer test evidence. (Id. ¶ 121). The motion was granted

on March 2, 2017. (Id. ¶ 122). A state district court judge agreed that her prior counsel had

provided ineffective assistance and that she stood a reasonable chance of suppressing the

breathalyzer test evidence. (Id.; Ex. 4).

Approximately two months later, the district attorney’s office agreed to dismiss one of

the property-damage charges. (Id. ¶ 124). In addition, the assistant district attorney agreed to a

“guilty-filed” disposition of the remaining charges, which would not threaten Pimentel’s

immigration status. (Id. ¶¶ 124-25).

4. Methuen’s Alleged Awareness of Errors in the Advice-of-Rights Form

On August 12, 2012—more than two years before Pimentel was arrested—another

Spanish-speaking individual had been arrested in Methuen for operating under the influence.

That individual was given a Spanish-language advice-of-rights form identical to the one Pimentel

received. (Id. ¶ 50). That individual similarly moved to suppress his breathalyzer test results.

(Id.). On May 9, 2013, Assistant District Attorney Lindsay Nasson conceded the motion to

suppress, and the individual was eventually acquitted. (Id. ¶ 51).

On May 10, 2013, Nasson e-mailed her superiors explaining why she conceded the

motion to suppress—specifically, that the Spanish-language advice-of-rights form included

incorrect statements of law. (Id. ¶ 52). The e-mail stated that “I just wanted to put everyone on

notice that this is a live issue, and something that we will be working with [the] Methuen [Police

Department] to rectify.” (Id. ¶ 54). The complaint implies, but does not explicitly state, that

Nasson ultimately followed through and communicated her concerns to the Methuen Police

Department. It alleges that the Methuen police continued using the incorrect advice-of-rights

form at least through November 2016, and that “even high-ranking police officers . . . were

completely unaware” of the situation. (Id. ¶ 60).

Pimentel’s counsel submitted Freedom of Information Act (“FOIA”) requests “pertaining

to the use of an erroneous Spanish language form previously used by the Methuen Police

Department in connection with [OUI] cases.” (Id. Exs. 2, 3). The Essex County District

Attorney’s Office identified two cases, one from 2012 and one from 2014, in which the incorrect

advice-of-rights form was used. (Id. Ex. 3). The Essex County District Attorney’s Office also

provided counsel a list of possible Hispanic OUI defendants who may have been given that form.

(Id.). Ultimately, the District Attorney’s Office identified approximately 300 defendants who

may have received the erroneous form. (Id. ¶ 129). However, the city and District Attorney

were unable to locate many requested records, such as “[a]ll records and communications related

to any complaint about the Rights Form” and “[a]ll records and communications reflecting the

identity of any person(s) who drafted, edited, revised or approved the Rights Form.” (Id. Ex. 3).

B. Procedural Background

On October 5, 2017, Pimentel brought suit against the City of Methuen, Methuen Police

Chief Joseph Solomon (in his individual and official capacities), Officers Jajuga, Alacron, and

Tardiff (in their individual capacities), and Jonathan Blodgett, the Essex County District

Attorney (in his official capacity). The complaint contains 11 counts. Count 1 asserts a claim

under 42 U.S.C. § 1983 for violations of Fourteenth Amendment substantive-due-process rights;

Count 2 asserts a claim under 42 U.S.C. § 1983 for violations of Fourteenth Amendment

procedural-due-process rights; Count 3 asserts a claim under 42 U.S.C. § 1983 for violations of

Fourteenth Amendment equal-protection rights; Count 4 asserts a violation of 42 U.S.C. § 1981;

Count 5 asserts a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, by the

City of Methuen; Count 6 asserts violation of the Massachusetts Civil Rights Act, Mass. Gen.

Laws ch. 12, §§ 11H & 11I; Count 7 asserts a claim for substantive-due-process violations under

the Massachusetts Declaration of Rights; Count 8 asserts a claim for procedural-due-process

violations under the Massachusetts Declaration of Rights; Count 9 asserts a claim for equal-

protection violations under the Massachusetts Declaration of Rights; Count 10 asserts a claim for

intentional infliction of emotional distress against the individual police defendants; and Count 11

purports to reserve the right to amend the complaint to bring further tort claims. The complaint

seeks class-action certification, damages, and various forms of equitable relief.

Defendants have moved to dismiss the complaint for failure to state a claim and to

dismiss all claims against the individual defendants on the basis of qualified immunity.

II. Legal Standard

On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and

give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness

Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.

1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its

face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual

allegations must be enough to raise a right to relief above the speculative level, . . . on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555

(citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the

complaint fails to set forth “factual allegations, either direct or inferential, respecting each

material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v.

Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano

de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

III. Analysis

A. Count 1—Substantive Due Process

Count 1 asserts a claim under 42 U.S.C. § 1983 for substantive-due-process violations

against all defendants. Section 1983 “creates a private right of action for redressing

abridgements or deprivations of federal constitutional rights.” McIntosh v. Antonino, 71 F.3d 29,

33 (1st Cir. 1995). “A claim under § 1983 has two ‘essential elements’: the defendant must

have acted under color of state law, and his or her conduct must have deprived the plaintiff of

rights secured by the Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306

(1st Cir. 2008). The second element requires the plaintiff to show that the defendants caused the

alleged deprivation. Id.

The parties do not dispute that defendants were acting under color of state law. As to the

second element, the complaint alleges that defendants “adopted, implemented, enforced,

condoned, sanctioned, acquiesced to, and encouraged a policy, pattern, practice, or custom of

violating the clearly established due process rights of the Class Members by using the erroneous

. . . Spanish language advice of rights form . . . .” (Compl. ¶ 143). The complaint further

appears to allege that it was the City’s policy or custom to maintain usage of the incorrect form.

It also alleges that defendants’ conduct was “intentional, wanton, malicious, reckless, callously

indifferent, and oppressive.” (Id. ¶ 150).

To constitute a violation of substantive due process, state action must be “so egregious,

so outrageous, that it may fairly be said to shock the contemporary conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). “Executive branch action that sinks to the

depths of shocking the contemporary conscience is much more likely to find its roots in ‘conduct

intended to injure in some way unjustifiable by any government interest.’” DePoutot v.

Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005) (quoting Lewis, 523 U.S. at 849). By contrast,

“negligently inflicted harm is ‘categorically beneath the threshold’ of a constitutional violation.”

Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 53 (1st Cir. 2006) (quoting Lewis, 523 U.S. at 849).

Situations where the alleged wrongdoing amounted to “deliberate indifference” present

“closer calls.” Id. The First Circuit has cautioned that “[i]n situations where actors have an

opportunity to reflect and make reasoned and rational decisions, deliberately indifferent behavior

may suffice to shock the conscience.” Rivera v. Rhode Island, 402 F.3d 27, 36 (1st Cir. 2005)

(emphasis added). However, “[t]hat determination . . . is context specific” and “[d]eliberate

indifference that shocks in one environment may not be so patently egregious in another.”

Ramos-Pinero, 453 F.3d at 53.

Whether defendants’ failure to cure the defective advice-of-rights form could amount to

conduct that “shocks the conscience” is far from clear. Assuming that the allegations of the

complaint are true, municipal officials in Methuen were obviously negligent in failing to correct

the form; however, negligence is not enough. The complaint alleges that the conduct was

“intentional,” but in largely conclusory terms; the issue seems likely to turn on whether plaintiff

can show deliberate indifference.

Because deliberate indifference is a context-dependent inquiry, the Court will err on the

side of caution, and permit the substantive-due-process claim to go forward at least to the

summary-judgment stage. That will permit the development of a factual record, and a resolution

of the question based on the evidence. Whether the facts, as opposed to the allegations of the

complaint, amount to conduct so egregious as to shock the conscience is a question for another

day.2 Accordingly, defendants’ motion to dismiss will be denied as to Count 1.

B. Count 2—Procedural Due Process

Count 2 asserts a claim under 42 U.S.C. § 1983 for procedural-due-process violations

against all defendants. “The requirements of procedural due process apply only to the

deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and

property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972); see also Aponte-Torres v. Univ.

of Puerto Rico, 445 F.3d 50, 56 (1st Cir. 2006). Analysis of an alleged violation of procedural-

due-process rights requires two steps: “[w]e first ask whether there exists a liberty or property

interest of which a person has been deprived, and if so we ask whether the procedures followed

by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011).

The parties do not dispute that provision of the incorrect advice-of-rights form resulted in

a deprivation of a liberty interest. The question is thus whether the process she received was

sufficient.

Plaintiff primarily focuses her argument on the fact that “she did not knowingly,

intelligently, and voluntarily enter the initial plea agreement” because she did not consent to the

2 Indeed, a state judge concluded that “[f]rom all indications, the incorrect rights form was more likely the

result of negligent Spanish interpretation and oversight by the Methuen Police Department than any pernicious

government misconduct. [Pimentel’s] affidavit fails to make any substantial evidentiary showing of any egregious

misconduct by the government.” (Compl. Ex. 4 at 7).

breathalyzer test. (Mem. in Opp. at 9). But after securing new counsel, she was able to identify

problems in the Spanish advice-of-rights form. The district court granted her a new trial, and she

ultimately agreed to a “guilty-filed” disposition. Under the circumstances, it is clear that plaintiff

was afforded adequate process—indeed, the state court agreed with her argument that the

incorrect advice-of-rights form likely vitiated her consent, and granted her relief. Because a

“procedural due process claim is not actionable, unless, inter alia, no adequate ‘post-deprivation

remedy’ is available under state law,” plaintiff’s procedural-due-process claim must fail. Perez-

Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994); see also Herwins v. City of Revere, 163

F.3d 15, 19-20 (1st Cir. 1998) (stating that administrative error did not constitute a due process

violation where plaintiff could have appealed to state courts).

Therefore, there was no procedural-due-process violation, and defendants’ motion to

dismiss will be granted as to Count 2. Because Count 8 asserts an analogous claim under the

Declaration of Rights, it too will be dismissed. See Lopes v. Beland, 2016 WL 4148190, at *9

(D. Mass. Aug. 4, 2016) (“[W]here, as here, a plaintiff does not argue that the Declaration of

Rights affords him greater protection, the [federal and state constitutional] claims are treated

identically.”).

C. Count 3—Equal Protection

Count 3 asserts a claim under 42 U.S.C. § 1983 for equal-protection violations against all

defendants. The Equal Protection Clause of the Fourteenth Amendment generally provides that

similarly situated persons are entitled to receive similar treatment at the hands of government

actors. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state an

equal-protection claim, a plaintiff must show that she “was treated differently from others

similarly situated . . . based on impermissible considerations.” Clark v. Boscher, 514 F.3d 107,

114 (1st Cir. 2008) (citation and quotation marks omitted). The Supreme Court has held that

differential treatment based on suspect classifications (race, national origin, religion, or alienage)

is subject to strict scrutiny; differential treatment based on quasi-suspect classifications (gender

or illegitimacy) is subject to intermediate scrutiny; and differential treatment based on all other

classifications must simply survive a rational-basis inquiry. See Clark v. Jeter, 486 U.S. 456,

461 (1988) (collecting cases). In addition, a plaintiff must plead sufficient facts such that it is

plausible that a defendant acted with discriminatory intent. See Hayden v. Grayson, 134 F.3d

449, 453 (1st Cir. 1998) (“[U]nless these plaintiffs established the requisite discriminatory intent,

their equal protection claim cannot succeed . . . .”).

Defendants contend that the allegations in the complaint are not sufficient to suggest that

their purported misconduct was intentional. See City of Cuyahoga Falls, Ohio v. Buckeye

Comm. Hope Foundation, 538 U.S. 188, 194 (2003) (stating that “proof of racially

discriminatory intent or purpose is required to show a violation of the Equal Protection Clause”)

(quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265

(1977)) (quotation marks omitted). Again, the complaint alleges that the conduct of various

Methuen police officers and officials was “intentional, wanton, malicious, reckless, callously

indifferent, and oppressive.” (Compl. ¶ 173). The complaint also alleges that defendants

continued using the incorrect form for at least 17 months after ADA Nasson’s e-mail in May

2013. (Id. ¶ 56).3 For purposes of a motion to dismiss, that is sufficient to allege intentional

conduct for a § 1983 claim under the equal-protection clause. Whether those allegations are true

3 Plaintiff also points to the fact that the city and Essex County District Attorney’s Office did not produce

all requested documentation in response to a FOIA request. (Mem. in Opp. at 15). That allegation carries little

weight in this context. When voluminous records are sought, as was the case here, it is frequently difficult to

produce all requested documents, particularly within a short time period.

must, of course, await development of a factual record.

Defendants further contend that the putative class of plaintiffs identified in the complaint

are “Spanish-speaking” individuals rather than Hispanics, and that “membership in a group of

persons unable to read English . . . does not constitute a suspect classification . . . .” (Mem in

Supp. at 9). In support, defendants cite two cases from the Supreme Judicial Court:

Commonwealth v. Acen, 396 Mass. 472, 479-80 (1986) (stating “those who are unable to read

English are not a suspect class under the equal protection clause”) and Commonwealth v. Olivo,

369 Mass. 62, 72 (1975) (“The class burdened, however, is not those of Spanish descent, but

those unable to read English. This is not a suspect class.”).4

As a general proposition, those cases are correct: language (or language facility) is not a

suspect classification. However, it is at least possible, under some circumstances, that language

could be a surrogate for national origin. In Hernandez v. New York, 500 U.S. 352 (1991), Justice

Kennedy, writing for a plurality, cautioned that “[i]t may well be, for certain ethnic groups and in

some communities, that proficiency in a particular language, like skin color, should be treated as

a surrogate for race under an equal protection analysis.” Id. at 371. State and federal courts in

recent years have struggled with this issue. See, e.g., People v. Aviles, 28 N.Y.3d 497, 509-10

(2016) (noting “our nation’s understanding of the role language plays in our multiethnic society

has evolved” over the past three decades); State v. Gould, 322 Conn. 519, 536-37 (2016)

(declining to address whether language restrictions are pretexts for unlawful discrimination

based on race or national origin); Kikumura v. Turner, 28 F.3d 592, 599 (7th Cir. 1994) (same).

4 Acen involved the exclusion of non-English speakers from juries, a classification subject to rational-basis

scrutiny because it fell within the “political function exception.” Acen, 396 Mass. at 481. Olivo involved the

posting of criminal complaints in English to Spanish-speaking defendants. 369 Mass. at 65. In Olivo, the SJC stated

that because “[t]his is not an officially multilingual country, [ ] notification of official matters in the sole language of

both this nation and this Commonwealth is patently reasonable.” Id. at 73.

The problem here is that the complaint does not explicitly allege that language was used

as a proxy for national origin. Indeed, it does not even allege an act of unlawful discrimination

against a Hispanic on the basis of national origin. Instead, it alleges that “English-speaking and

non-Hispanic individuals have been treated differently than Spanish-speaking Hispanic

individuals arrested in Methuen for OUI matters . . . .” (Compl. ¶ 165). Thus, the complaint is at

best ambiguous as to whether the alleged improper classification is based on language—namely,

the treatment of those arrestees who speak English (whether or not they are Hispanic) and those

who speak Spanish—or national origin.

However, the equal-protection claim survives a motion to dismiss either way. If the

classification is language-based, it is subject to rational-basis scrutiny. Clark, 486 U.S. at 461.

There is no apparent rational basis for providing accurate information to OUI arrestees in English

and grossly inaccurate information to similar arrestees in Spanish. And, of course, if the

classification is race-based, it fails the even more stringent strict-scrutiny test. Id.

The equal-protection claim is therefore sufficiently plausible to survive a motion to

dismiss. Again, whether defendants acted knowingly and intentionally, rather than out of neglect

or mistake, is a question that can only be answered after discovery and development of the

record. Accordingly, defendants’ motion to dismiss will be denied as to Count 3.

D. Count 4—Civil Rights Claims under 42 U.S.C. § 1981

Count 4 asserts a claim under 42 U.S.C. § 1981.5 Section 1981 guarantees “equal rights

under the law.” 42 U.S.C. § 1981. It “prohibits both public and private racial discrimination in

certain specified activities.” Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir. 2002). One such

specified activity is the ability to enjoy “the full and equal benefit of all laws and proceedings for

5 Apparently in error, the complaint also cites 42 U.S.C. § 1983 in the heading for Count 4.

the security of persons and property.” 42 U.S.C. § 1981. To prove a violation under § 1981, “a

plaintiff must show (1) that [she] is a member of a racial minority; (2) that the defendant[s]

discriminated against [her] on the basis of race; and (3) that the discrimination implicated one or

more of the activities enumerated in the statute.” Garrett, 295 F.3d at 98. Furthermore, the

discrimination must be purposeful. General Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458

U.S. 375, 391 (1982) (holding that § 1981 “can be violated only by purposeful discrimination”).

However, § 1981 only protects a limited range of civil rights, such as the right to make

and enforce contracts. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003) (“[W]e have explained

that [§ 1981] was meant, by its broad terms, to proscribe discrimination in the making or

enforcement of contracts against, or in favor of, any race.”) (citation and quotation marks

omitted); see also Garrett, 295 F.3d at 98. There is no obvious application of § 1981 to this

case.

Nevertheless, because the parties did not substantively address this claim in their briefs,

Count 4 will remain pending.

E. Count 5—Title VI of the Civil Rights Act of 1964

Count 5 asserts a claim for violation of Title VI of the Civil Rights Act of 1964 against

the City of Methuen. Section 601 of the Civil Rights Act provides that no person shall, “on the

ground of race, color, or national origin, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any program or activity” covered by Title VI. 42

U.S.C. § 2000d. The Supreme Court has construed section 601 to create a private right of action

for individuals to enforce Title VI and obtain injunctive relief and damages. See Alexander v.

Sandoval, 532 U.S. 275, 279-80 (2001). The parties do not dispute that the City of Methuen, as a

recipient of federal funding, is subject to Title VI.

The parties again dispute whether the complaint has sufficiently pleaded a claim of

discrimination. See id. at 280 (“It is similarly beyond dispute . . . that § 601 prohibits only

intentional discrimination.”); see also Alexander v. Choate, 469 U.S. 287, 293 (1985) (“Title VI

itself directly reach[es] only instances of intentional discrimination.”); Regents of Univ. of

California v. Bakke, 438 U.S. 265, 287 (1978). Count 5, unlike Count 3, does not allege

discrimination on the basis of language; instead, it alleges that the “use of the unlawfully

coercive Spanish language advice-of-rights form in connection with arrests and prosecutions of

Spanish-speaking Hispanic individuals for OUI matters in Methuen discriminates against

individuals based on their race, color, or national origin . . . .” (Compl. ¶ 191). That language, in

context, is sufficient to allege a claim of discrimination based on national origin. The motion to

dismiss Count 5 will accordingly be denied.

F. Count 6—Massachusetts Civil Rights Act

Count 6 asserts a claim under the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen.

Laws ch. 12, §§ 11H & 11I. The MCRA provides a right of action to any person whose exercise

or enjoyment of rights secured by the federal or state constitution or laws has been interfered

with by “threats, intimidation or coercion.” Mass. Gen. Laws ch. 12, § 11I. A “threat” means

“the intentional exertion of pressure to make another fearful or apprehensive of injury or harm”;

“intimidation” means “putting in fear for the purposes of compelling or deterring conduct”; and

“coercion” means “the application to another of such force, either physical or moral, as to

constrain him to do against his will something he would not otherwise have done.” Planned

Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994). “[T]he MCRA

contemplates a two-part sequence: [liability may be found where] (1) the defendant threatens,

intimidates, or coerces the plaintiff, in order to (2) cause the plaintiff to give up something that

[she] has the constitutional right to do.” Goddard v. Kelley, 629 F. Supp. 2d 115, 128 (D. Mass.

2009).

The SJC has not yet decided whether municipalities may be liable under the MCRA.

However, the Appeals Court has held that “a municipality is not a ‘person’ covered by the

[MCRA].” Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 591-92 (2001). That holding

has been followed in federal court. See, e.g., Kelley v. LaForce, 288 F.3d 1, 11 n.9 (1st Cir.

2002); Dyer v. City of Boston, 2018 WL 1513568, at *7 (D. Mass. Mar. 27, 2018); Meagher v.

Andover School Committee, 94 F. Supp. 3d 21, 45 (D. Mass. 2015). Accordingly, the MCRA

claim against the City of Methuen will be dismissed.

Defendants further contend that the MCRA claims against the individual defendants

should also be dismissed because none of them are personally alleged to have used threats,

intimidation, or coercion to make plaintiff take the breathalyzer test. In her opposition, plaintiff

alleges that because Officers Jajuga, Tardiff, and Alacron all observed or interacted with her at

the police station, they “were involved in the coercive conduct that violated her rights.” (Mem.

in Opp. at 16). At the very least, there is a question as to whether any of the individual

defendants were aware that plaintiff was being given the incorrect form such that their conduct

could be said to be “coercive.” Therefore, the motion to dismiss the MCRA claim against the

individual defendants will be denied.

G. Counts 7, 8, and 9—Right of Action under the Massachusetts Declaration of

Rights

Defendants separately contend that Counts 7, 8, and 9, which are claims under the

Massachusetts Declaration of Rights, should be dismissed.6

6 The Court has already concluded that Count 8 should be dismissed based on the failure to plead an

adequate procedural due-process violation.

Defendants first argue that the MCRA “occupies the field” and bars any direct claim

under the Declaration of Rights, provided the state actor used threats, intimidation, or coercion to

deprive a plaintiff of her state constitutional rights. At least one federal court has so held. See

Do Corp. v. Town of Stoughton, 2013 WL 6383035, at *13 (D. Mass. Dec. 6, 2013). That

decision was based on the following language in Martino v. Hogan, 37 Mass. App. Ct. 710, 720

(1994):

There has been discussion of grounding a cause of action on the State

Constitution for violation of its provisions where no statutory avenue for

enforcement has been fashioned and made available. No actual decision on that

line has reached the present situation or anything near it. To be considered before

such a step is taken is the fact of the existence of § 1983 and the State analogue,

[the MCRA]: these may be thought, as it were, to occupy the field.

(citations omitted). That language appears to be dicta, however, and does not appear to have

been followed by any state court. In any event, this Court need not reach the issue, because there

is insufficient state-law authority to support such a claim.

The SJC has never held that there is a right of action to enforce the Declaration of Rights.

It did suggest, 35 years ago, in dicta, that such a right “may” be available. See Phillips v. Youth

Dev. Program, Inc., 390 Mass. 652, 657-58 (1983) (stating that “a person whose constitutional

rights have been interfered with may be entitled to judicial relief even in the absence of a statute

providing a procedural vehicle for obtaining relief”). Six years later, it made a similar

observation. See Layne v. Superintendent, Mass. Corr. Inst., Cedar Junction, 406 Mass. 156,

159-60 (1989) (stating that “a State may not violate a person’s constitutional rights and then

fairly assert that no redress can be had because the State has not provided a statutory means of

enforcing those rights”).

Many years later, the Massachusetts Appeals Court, in dicta in an unpublished opinion,

noted that “because Massachusetts has not definitively determined whether a cause of action can

be brought based solely on the Declaration of Rights, we must look to the Federal standards in

reviewing [plaintiff’s] claim.” Cormier v. City of Lynn, 2017 WL 121065, at *3 (Mass. App. Ct.

Jan. 12, 2017). But that opinion simply assumed that such an action could be brought, and then

concluded that no constitutional violation had occurred.

Based on that language, and a single Superior Court decision, at least one federal court

has concluded that a direct right of action exists under Massachusetts law to enforce the

Declaration of Rights. See Podgurski v. Dep’t of Corr., 2014 WL 4772218, at *7 (D. Mass. Sep.

23, 2014) (“[T]he Court agrees . . . that as a general proposition, a cause of action can, in certain

circumstances, be brought directly under the Massachusetts Declaration of Rights in the absence

of a statutory vehicle for obtaining relief.”) (citing Parsons ex. rel. Parsons v. Town of

Tewksbury, 2010 WL 1544470, at *4 (Mass. Super. Ct. Jan 19, 2010)).

This Court is of a different view. No Massachusetts appellate court, in the 35 years since

Phillips, has ever held that such a right exists. And it is emphatically not the role of the federal

courts to develop and expand upon state law. If this Court were to conclude that such a right

existed, no Massachusetts court would have an opportunity to consider that decision—including,

among other things, an opportunity to consider the wisdom of the policy embedded in such a

decision and the potential consequences for litigants and the courts. It is up to the courts of

Massachusetts, not this Court, to make that choice. Counts 7, 8, and 9 will therefore be

dismissed.

H Count 10—Intentional Infliction of Emotional Distress

Count 10 asserts a claim for intentional infliction of emotional distress against the

individual defendants. To state a claim for IIED under Massachusetts law, a complaint must

allege:

(1) that the actor intended to inflict emotional distress or that he knew or should

have known that emotional distress was the likely result of his conduct; (2) that

the conduct was extreme and outrageous, was beyond all possible bounds of

decency[,] and was utterly intolerable in a civilized community; (3) that the

actions of the defendant were the cause of the plaintiff's distress; and (4) that the

emotional distress sustained by the plaintiff was severe and of a nature that no

reasonable man could be expected to endure it.

Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976) (citations and internal quotation

marks omitted); accord Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995). Courts apply a

“very high” standard to claims of intentional infliction of emotional distress, especially on the

requirement that the conduct in question is extreme and outrageous, beyond all possible bounds

of decency in a civilized community. See Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir.

1996). “[L]iability cannot be predicated upon ‘mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities.’” Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987)

(quoting Restatement (Second) of Torts § 46, cmt. d (1965)).

Even if defendants’ conduct violated plaintiff’s civil rights, that does not “necessitate a

finding that the conduct is sufficiently egregious to state a claim for [IIED].” Guckenberger v.

Boston Univ., 957 F. Supp. 306, 319 (D. Mass. 1997) (citing Marques v. Fitzgerald, 99 F.3d 1, 6-

7 (1st Cir. 1996)). Here, the complaint has pleaded sufficient facts creating a plausible inference

that the individual defendants were aware of errors in the advice-of-rights form and nevertheless

proceeded to give it to plaintiff. If true, that could potentially constitute the “profoundly

shocking conduct” necessary for an IIED claim. Conway v. Smerling, 37 Mass. App. Ct. 1, 8

(1994). Therefore, the motion to dismiss will be denied as to Count 10.

I. Count 11—“Reservation of Right to Amend Complaint”

Count 11 merely purports to reserve the right to amend the complaint to bring additional

claims under the Massachusetts Tort Claims Act. It does not provide a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Accordingly, defendants’ motion to dismiss will be granted as to Count 11. To the extent

plaintiff seeks to add new claims, she may file a motion to amend under Rule 15.

J. Qualified Immunity

Defendants further contend that Police Chief Solomon and the other individual

defendants are entitled to qualified immunity. The doctrine of qualified immunity protects

public employees “from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has articulated a

two-part test for determining qualified-immunity. See Pearson v. Callahan, 555 U.S. 223, 232

(2009); see also Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). The relevant

inquiries are (1) whether the facts alleged or shown by the plaintiff make out a violation of a

constitutional right, and (2) whether the right at issue was clearly established at the time of the

defendant's alleged misconduct. Id. The qualified-immunity doctrine “leaves ‘ample room for

mistaken judgments.’” Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998) (quoting Malley v.

Briggs, 475 U.S. 335, 343 (1986)).

As shown above, the complaint alleges state and federal constitutional claims against the

individual defendants. Based solely on the pleadings, it is uncertain whether in fact the

individual defendants’ conduct was objectively reasonable such that qualified immunity should

apply. That question is better reserved for summary judgment after the development of a factual

record. Accordingly, the Court will not dismiss the claims on the basis of qualified immunity at

this stage of litigation.

K. Viability of Monell Claims

Defendants further argue that the § 1983 claims against the City of Methuen should be

dismissed because the complaint fails to state a Monell claim. A municipality “may not be sued

under § 1983 for an injury inflicted solely by its employees or agents.” See Monell v.

Department of Soc. Servs., 436 U.S. 658, 694 (1978). “[L]iability can be imposed on a local

government only where that government's policy or custom is responsible for causing the

constitutional violation or injury.” See Kelley v. LaForce, 288 F.3d 1, 9 (1st Cir. 2002) (citing

Monell, 436 U.S. at 690-91). Here, the complaint alleges that two general policies or customs of

the city caused the constitutional violations at issue: (1) maintenance of an unconstitutional

policy, custom, or practice and (2) failure to properly train, supervise, or discipline officers.

Practices that are not officially authorized may nonetheless be actionable under Monell if

they are “so well settled and widespread that the policymaking officials of the municipality can

be said to have either actual or constructive knowledge of it yet did nothing to end the practice.”

Whitfield v. Melendez-Rivera, 431 F.3d 1, 13 (1st Cir. 2005); see also Monell, 436 U.S. at 691

(informal practice must be “so permanent and well settled as to constitute a ‘custom or usage’

with the force of law”). “The standard of causation is quite high: the municipal custom or policy

must be shown to have been the ‘moving force’ behind the constitutional injury.” Beal v.

Blache, 2005 WL 352861, at *2 (D. Mass. Feb. 14, 2005) (quoting Polk County. v. Dodson, 454

U.S. 312, 326 (1981)).

Here, the complaint states a plausible Monell claim. It alleges that the city, despite being

aware of the widespread use of the incorrect Spanish advice-of-rights form for 17 months, failed

to rectify the practice, resulting in the violation of plaintiff’s constitutional rights.

A municipality may also be liable under § 1983 for failure to train its police officers if

“that failure causes a constitutional violation or injury and ‘amounts to deliberate indifference to

the rights of persons with whom the [officers] come into contact.’” DiRico v. City of Quincy,

404 F.3d 464, 468 (1st Cir. 2005) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

Again, the complaint alleges that Methuen failed to train its officers on the unlawful use of the

Spanish advice-of-rights form after ADA Nasson alerted police officials to the form’s errors. It

further alleges that the individual officers should have noticed “glaringly obvious error[s]” in the

form. (Mem. in Opp. at 25). Accepting these allegations as true, the complaint states a plausible

Monell claim for failure to train.

L. Supervisory Liability for Police Chief Solomon

Finally, defendants contend that the complaint fails to allege a basis for supervisory

liability against Police Chief Solomon under § 1983. Respondeat superior cannot serve as the

basis for supervisor liability in an action under § 1983. See Sanchez v. Alvarado, 101 F.3d 223,

227 (1st Cir. 1996). For supervisory liability to attach, a plaintiff must show an affirmative link

between the constitutional violation and the supervisor's actions and omissions, “whether

through direct participation or through conduct that amounts to condonation or tacit

authorization.” Camilo–Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999).

Under 42 U.S.C. § 1983, a supervisory official may be held liable for the behavior

of his subordinates only if (1) the behavior of his subordinates results in a

constitutional violation, and (2) the supervisor's action or inaction was

affirmatively linked to that behavior in the sense that it could be characterized as

supervisory encouragement, condonation or acquiescence or gross negligence

amounting to deliberate indifference.

Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir.2008) (internal citations and quotations omitted).

As noted, the complaint plausibly alleges that the individual officers violated plaintiff’s

constitutional rights. For supervisory liability to attach, the complaint must also plausibly allege

that Solomon’s action or inaction was affirmatively linked to his officers’ constitutional

violations. “The requirement of an ‘affirmative link’ between the behavior of a subordinate and

the action or inaction of his supervisor ‘contemplates proof that the supervisor's conduct led

inexorably to the constitutional violation.’” Id. (quoting Hegarty v. Somerset County, 53 F.3d

1367, 1380 (1st Cir. 1995)). This means that the supervisor's behavior must amount to

“supervisory encouragement, condonation, or acquiescence or gross negligence amounting to

deliberate indifference.” Id. A finding of deliberate indifference requires a showing that “it

would be manifest to any reasonable official that his conduct was very likely to violate an

individual's constitutional rights.” Id. (quoting Hegarty, 53 F.3d at 1380). Such indifference by

a supervisor can be shown if the supervisor had actual knowledge of or was willfully blind to the

alleged constitutional violations. See Feliciano–Hernandez v. Pereira-Castillo, 663 F.3d 527,

535 (1st Cir. 2011); Camilo-Robles v. Hoyos, 151 F.3d 1, 6-7 (1st Cir. 1998). Isolated instances

of unconstitutional activity are ordinarily insufficient to show deliberate indifference.

Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).

Here, the complaint adequately pleads an “affirmative link.” Making all reasonable

inferences in plaintiff’s favor, Police Chief Solomon was notified in May 2013 by ADA Nasson

that the Spanish advice-of-rights form was incorrect. Despite the knowledge that the incorrect

form was being used, Solomon allegedly took no steps to fix the form until well after plaintiff’s

arrest. Accordingly, the complaint states a § 1983 supervisory liability claim for “acquiescence

or gross negligence amounting to deliberate indifference.” Pineda, 533 F.3d at 54.

IV. Conclusion

For the foregoing reasons, defendants’ motion to dismiss is GRANTED in part and

DENIED in part. Specifically, the motion is granted as to Counts 2, 7, 8, 9, and 11; as to

Count 6 against the City of Methuen; and otherwise denied.

So Ordered.

/s/ F. Dennis Saylor

F. Dennis Saylor IV

Dated: June 26, 2018 United States District Judge