DeNicola v. Potter

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JOHN DENICOLA, *

*

Plaintiff, *

*

v. *

* Civil Action No. 19-cv-11391-ADB

CHERYL P. POTTER, et al., *

*

Defendants. *

*

*

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

AND MOTION FOR JUDGMENT ON THE PLEADINGS

BURROUGHS, D.J.

John DeNicola (“Plaintiff”), appearing pro se, brings this action against Quincy Police

Officer Cheryl P. Potter (“Potter”), Quincy District Court Assistant Clerk Magistrate James

Comerford (“Comerford”), and Quincy District Court Clerk Magistrate Arthur Tobin (“Tobin”

and, collectively, “Defendants”), alleging violations of his First, Fourth, and Fourteenth

Amendment rights in connection with charges brought against him under the Massachusetts

wiretap statute. [ECF No. 7 (“Am. Compl.”)]; Mass. Gen. Laws. ch. 272, § 99. Currently before

the Court is Comerford and Tobin’s motion to dismiss, [ECF No. 26], and Potter’s motion for

judgment on the pleadings, [ECF No. 30]. For the reasons set forth below, Comerford and

Tobin’s motion, [ECF No. 26], and Potter’s motion, [ECF No. 30], are all GRANTED.1

1 As discussed in Section II, infra, the Court construes Potter’s Rule 12(c) motion for judgment

on the pleadings as a motion to dismiss under Rule 12(b)(6).

I. BACKGROUND

A. Factual Background

For purposes of this Order, the relevant facts are drawn from Plaintiff’s amended

complaint, [Am. Compl.], and documents referred to in the complaint, and viewed in the light

most favorable to Plaintiff. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir.

2014) (citations omitted).2

Plaintiff’s amended complaint sets forth limited factual allegations:

On 12/31/18 Officer Potter and James Comerford filed [a] felony wiretapping

complaint . . . against plaintiff at 2:22 pm for trying to file a complaint against a

court employee of Quincy District Court. . . . On 01/03/19 Clerk Magistrate Tobin

issued the charges at 12:12:54 pm against plaintiff.

[Am. Compl. at 4, 6, 8].3

A police report written by Potter indicates that Plaintiff called the Quincy District

Courthouse on December 31, 2018 and spoke with three different employees, including

2 “In reviewing a motion under Rule 12(c), as in reviewing a Rule 12(b)(6) motion,” the Court

“may consider ‘documents the authenticity of which are not disputed by the parties; . . .

documents central to plaintiffs’ claim; [and] documents sufficiently referred to in the

complaint.’” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting Watterson v. Page, 987

F.2d 1, 3 (1st Cir. 1993)). “This is true even when the documents are incorporated into the

movant’s pleadings.” Id. (citing Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st

Cir. 1998)). Plaintiff attached a copy of the police report and related documents to his opposition

to the motion for judgment on the pleadings, [ECF No. 32-1], and Defendants attached copies of

the police report to their memoranda in support of their motions, [ECF Nos. 27-1, 31-1]. A court

“will only take into consideration the existence and contents” of such documents, however, and

“will not assume the truth of the findings asserted therein . . . .” Barnstable Cty. v. 3M Co., No.

17-cv-40002, 2017 WL 6452245, at *5 (D. Mass. Dec. 18, 2017).

3 In his request for relief, Plaintiff alleges that he “was restricted from entering Quincy Police

Department and Quincy District Court so he couldn’t file complaints against said defendants and

the original court employee.” [Am. Compl. at 4, 6, 8]. As Plaintiff does not identify who

restricted him from entering the courthouse (whether Defendants or unidentified individuals), the

Court will not review this allegation.

Comerford. [ECF No. 32-1 at 1–2].4 According to Potter’s report, Plaintiff told the first

employee he spoke with that he was recording the call. [Id. at 2]. Comerford, the third

individual with whom Plaintiff spoke during that same call, told Potter that Plaintiff did not

inform Comerford that he was recording the call until after they had spoken for a period of time.

[Id. at 1].5 Once Plaintiff told Comerford that he had been recording the call, the report states

that Comerford informed Plaintiff “that he did not have [Comerford’s] permission to record [the

call] and that he would be contacting the Quincy Police Department.” [Id. at 1–2].

In her report, Potter recommended follow up from the “BCI,” Quincy Police

Department’s Bureau of Criminal Investigations. [ECF No. 32-1 at 2; ECF No. 31 at 5]. On

January 3, 2019, Tobin “approved” the report, [ECF No. 32-1 at 3], and on January 16, 2019,

Plaintiff was issued a notice of an application for a criminal complaint for violation of

Massachusetts General Laws ch. 272, § 99, [id. at 4]. On June 12, 2019, the criminal complaint

was dismissed at the request of the Quincy Police Department. [Id. at 5].

B. Procedural Background

Plaintiff filed his original complaint on June 24, 2019. [ECF No. 1]. On July 29, 2019,

Plaintiff filed an amended complaint. [Am. Compl.]. Plaintiff subsequently moved to amend his

complaint again, [ECF No. 12], which the Court denied, [ECF No. 14]. In its Order denying the

motion to amend, the Court construed Plaintiff’s amended complaint, which alleges violations of

Plaintiff’s First, Fourth, and Fourteenth Amendment rights, as asserting claims under 42 U.S.C.

4 Potter’s report indicates that she spoke with all three employees after the incident, but that she

was unable to contact Plaintiff. [ECF No. 32-1 at 1–2].

5 In his opposition, Plaintiff argues that Comerford’s assertion that Plaintiff did not tell him that

he was recording the call conflicted with the police report which states that Plaintiff told one

employee that he was recording the call. [ECF No. 32 at 1].

§ 1983. [Id. at 3 n.2 (“[A] litigant complaining of a violation of a constitutional right does not

have a direct cause of action under the United States Constitution but [rather] must utilize 42

U.S.C. § 1983.” (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th

Cir. 2001))]. The Court allowed Plaintiff to proceed with his claims against Defendants in their

individual capacities only, finding that allowing an amendment to add official capacity claims

would be futile. [Id. at 3].

On September 20, 2019, Comerford and Tobin filed a motion to dismiss the amended

complaint under Rule 12(b)(6), [ECF No. 26], and on October 3, 2019, Potter filed a motion for

judgment on the pleadings under Rule 12(c), [ECF No. 30]. Plaintiff filed his opposition to each.

[ECF Nos. 28, 29, 32, 33].6

6 In his oppositions to both motions, Plaintiff states that he is bringing claims under 42 U.S.C.

§§ 1983 and 1985. [ECF No. 28 at 1; ECF No. 32 at 2]. Even if the Court were to now construe

the amended complaint to also raise a claim under § 1985, that claim would fail. A claim under

§ 1985 alleges a conspiracy to interfere with an individual’s civil rights. 42 U.S.C. § 1985. A

§ 1985 claim must contain the following four elements:

First, the plaintiff must allege a conspiracy; second, he must allege a conspiratorial

purpose to deprive the plaintiff of the equal protection of the laws; third, he must

identify an overt act in furtherance of the conspiracy; and finally, he must show

either injury to person or property, or a deprivation of a constitutionally protected

right.

Parker v. Landry, 935 F.3d 9, 17–18 (1st Cir. 2019) (alterations omitted) (quoting Perez-Sanchez

v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008)). “[T]he agreement must involve ‘some

racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the

conspirators’ action.’” Id. at 18 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). As

discussed infra in Section III.C, Plaintiff fails to allege an Equal Protection violation. In

addition, Plaintiff’s amended complaint does not allege facts supporting a conspiracy. See [Am.

Compl.]; see also Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980) (internal citations

omitted) (“Though we are mindful that pro se complaints are to be read generously, allegations

of conspiracy [under § 1985] must nevertheless be supported by material facts, not merely

conclusory statements.”); Hayward v. Massachusetts, No. 16-cv-30046, 2016 U.S. Dist. LEXIS

184566, at *34–35 (D. Mass. Nov. 14, 2016) (“Even construing the facts set forth in the pro se

complaint liberally and under the favorable motion to dismiss standard, the complaint falls short

of alleging sufficient facts to establish a conspiracy.”). The Court will therefore limit its analysis

to the § 1983 claims.

II. LEGAL STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all

well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all

reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d

74, 80 (1st Cir. 2019) (citations omitted). “[D]etailed factual allegations” are not required, but

the complaint must set forth “more than labels and conclusions,” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007), and must contain “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 Médico del

Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)). The alleged facts must be

sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

“To cross the plausibility threshold a claim does not need to be probable, but it must give

rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–

45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of

plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). “[T]he complaint

should be read as a whole, not parsed piece by piece to determine whether each allegation, in

isolation, is plausible . . . .” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013)

(quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). “The plausibility

standard invites a two-step pavane.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st

Cir. 2013) (citing Grajales, 682 F.3d at 45). First, the Court “must separate the complaint’s

factual allegations (which must be accepted as true) from its conclusory legal allegations (which

need not be credited).” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.

2012)). Secondly, the Court “must determine whether the remaining factual content allows a

‘reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (quoting

Morales-Cruz, 676 F.3d at 224).

“A Rule 12(c) motion for judgment on the pleadings ‘is treated much like a Rule 12(b)(6)

motion to dismiss.’” Santiago v. Bloise, 741 F. Supp. 2d 357, 360 (D. Mass. 2010) (quoting

Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). “[T]o survive a Rule

12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual

allegations that ‘raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true . . . .’” Perez-Acevedo, 520 F.3d at 29 (quoting Twombly,

550 U.S. at 555). “Because a Rule 12(c) ‘motion calls for an assessment of the merits of the case

at an embryonic stage, the court must view the facts contained in the pleadings in the light most

favorable to the nonmovant and draw all reasonable inferences therefrom’ in the nonmovant’s

favor.” Santiago, 741 F. Supp. 2d at 360 (quoting R.G. Financial Corp. v. Vergara-Nunez, 446

F.3d 178, 182 (1st Cir. 2006)).

“Like Rule 12(b)(6), Rule 12(c) does not allow for any resolution of contested facts;

rather, a court may enter judgment on the pleadings only if the uncontested and properly

considered facts conclusively establish the movant’s entitlement to a favorable judgment.”

Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006) (quoting Rivera-Gomez v. De

Castro, 843 F.2d 631, 635 (1st Cir. 1988)). “[T]he court may not grant a defendant’s Rule 12(c)

motion ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.’” Rivera-Gomez, 843 F.2d at 635 (quoting George

C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.

1977)).

Although a defendant may have “moved for judgment on the pleadings pursuant to Rule

12(c) . . . , it is well established that the Court may apply to said rule the applicable standard of

review of a Rule 12(b)(6) motion to dismiss.” Ramirez-Averasturi v. Rivera Gonzalez, No. 03-

cv-02360, 2005 U.S. Dist. LEXIS 33001, at *6–7 (D.P.R. Sep. 8, 2005); see Oses v. Vose, No.

90-cv-11642, 1994 U.S. Dist. LEXIS 13039, at *5 (D. Mass. Aug. 9, 1994) (“Although

defendant’s motion is couched as a motion for judgment on the pleadings under Fed. Rule Civ.

P. 12(c), in essence the [m]otion challenges the legal foundation for the complaint. The motion

is therefore subject to the same standard of review as a motion to dismiss pursuant to Fed. R.

Civ. P. 12(b)(6).”). Here, the Court will construe Potter’s Rule 12(c) motion, which adopts the

majority of the arguments made in Comerford and Tobin’s Rule 12(b)(6) motion, [ECF No. 31 at

2–3], as a Rule 12(b)(6) motion to dismiss. See Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir.

1990) (“The district court was acting within its discretion in converting [defendants’] Rule 12(c)

motion for judgment on the pleadings to a 12(b)(6) motion to dismiss for failure to state a claim

upon which relief can be granted.”).

III. DISCUSSION

Plaintiff alleges that Defendants violated his First, Fourth, and Fourteenth Amendment

rights when they filed and approved a complaint against Plaintiff in retaliation “for trying to file

a complaint against a court employee of Quincy District Court.” [Am. Compl. at 4, 6, 8].

Defendants argue that Plaintiff has failed to state a claim for relief. [ECF No. 27 at 3; ECF No.

31 at 2–3 (adopting Comerford and Tobin’s arguments)].

As stated earlier, the Court construes the amended complaint as bringing a claim under

42 U.S.C. § 1983.7 Section 1983 “is not itself a source of substantive rights, but merely provides

a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386,

393–94 (1989) (internal quotation marks and citations omitted). The statute “supplies a private

right of action against a person who, under color of state law, deprives another of ‘any rights,

privileges, or immunities secured by the Constitution and [federal] laws.’” Gray v. Cummings,

917 F.3d 1, 7 (1st Cir. 2019) (quoting 42 U.S.C. § 1983). To maintain a cause of action under

§ 1983, a plaintiff must show that “the challenged conduct [is] attributable to a person acting

under color of state law” and that “the conduct . . . worked a denial of rights secured by the

Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). For

purposes of the Defendants’ motions, the Court will assume that Defendants (all municipal or

state employees) were acting under color of state law. See O’Connell v. Gross, No. 19-cv-

11654, 2020 U.S. Dist. LEXIS 62925, at *11 (D. Mass. Apr. 10, 2020) (assuming for purposes of

motions to dismiss that defendants were acting under color of state law).

A. First Amendment Claim

Plaintiff claims that Defendants retaliated against him after he tried to file a complaint

against an employee at the Quincy District Court. [Am. Compl. at 4, 6, 8]. Defendants argue

that Plaintiff has failed to allege that they were aware of Plaintiff’s attempts to file a complaint

against an employee at the court, and that the criminal complaint against Plaintiff stemmed only

from him recording the December 31, 2018 call. [ECF No. 27 at 5–6; ECF No. 31 at 2–3

(adopting Comerford and Tobin’s arguments)].

7 “[T]he fact that the plaintiff filed the complaint pro se militates in favor of a liberal reading.”

Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).

The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech . . . or the right of the people . . . to petition the Government for a redress of

grievances.” U.S. Const. amend. I. “This right to petition extends to all departments of the

government, and the right of access to the courts is most certainly protected by the First

Amendment.” Hootstein v. Collins, 679 F. Supp. 2d 169, 187 (D. Mass. 2010) (citing Cal.

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)).

“Claims of retaliation for the exercise of First Amendment rights are cognizable under

§ 1983.” Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004). To succeed on a retaliation claim

under the First Amendment, “a plaintiff must first prove that (1) he or she engaged in

constitutionally protected conduct, (2) he or she was subjected to an adverse action by the

defendant, and (3) the protected conduct was a substantial or motivating factor in the adverse

action.” D.B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). “The defendant may then avoid a

finding of liability by showing that ‘[he or she] would have reached the same decision . . . even

in the absence of the protected conduct.’” Id. (quoting Powell, 391 F.3d at 17). In the case of a

retaliatory prosecution claim, a plaintiff must “show more than the subjective animus of an

officer and a subsequent injury; plaintiffs must also prove as a threshold matter that the decision

to press charges was objectively unreasonable because it was not supported by probable cause.”

Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019).

Plaintiff has failed to allege sufficient facts to support a claim that he was subjected to an

adverse action—the wiretap charge—in retaliation for his attempts to file a complaint. First,

Plaintiff has not alleged that any of the Defendants were aware that he planned to file a

complaint against an employee at the Quincy District Court. See [Am. Compl.]. Even assuming

Plaintiff had alleged this, however, Defendants have demonstrated that Plaintiff’s recording of

the December 31, 2018 call established probable cause for the wiretap charge brought against

him. [ECF No. 27 at 5–7].

The Massachusetts wiretap statute “makes it a crime to ‘willfully commit[] an

interception . . . of any wire or oral communication.’” Glik v. Cunniffe, 655 F.3d 78, 86 (1st Cir.

2011) (quoting Mass. Gen. Laws ch. 272, § 99(C)(1)).

The critical limiting term in the statute is “interception,” defined to mean “to

secretly hear, secretly record, or aid another to secretly hear or secretly record the

contents of any wire or oral communication through the use of any intercepting

device by any person other than a person given prior authority by all parties to such

communication.”

Id. (quoting Commonwealth v. Hyde, 750 N.E.2d 963, 967–68 & n.5 (Mass. 2001)). “The

Supreme Judicial Court has held that a recording is ‘secret’ unless the subject has ‘actual

knowledge’ of the fact of recording.” Id. (quoting Commonwealth v. Jackson, 349 N.E.2d 337,

340 (Mass. 1976)). Although the First Circuit has found the statute to be unconstitutional insofar

as it prevents individuals from recording public actions of government officials (in Glik v.

Cunniffe, the plaintiff recorded officials’ actions on Boston Common), the statute has not been

challenged in the context of less public actions, such as telephone calls conducted within an

office environment. See id.8

8 In his opposition to the motion to dismiss, Plaintiff cites two cases for the proposition that the

Massachusetts wiretap statute is unconstitutional. [ECF No. 29 at 1]. The Court will not

undertake an analysis of the constitutionality of the statute as Plaintiff did not challenge the

constitutionality of the statute in his amended complaint, [Am. Compl.], and because the

dismissal of the wiretap charge against him, [ECF No. 32-1 at 5], mooted any such claim. See

United States v. Reid, 369 F.3d 619, 624 (1st Cir. 2004) (“Article III prohibits federal courts

from deciding ‘moot’ cases or controversies—that is, those in which ‘the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” (quoting United

States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980))); Mangual v. Rotger-Sabat, 317

F.3d 45, 60 (1st Cir. 2003) (“If events have transpired to render a court opinion merely advisory,

Article III considerations require dismissal of the case.”); see also Matt v. HSBC Bank USA,

N.A., 783 F.3d 368, 372 (1st Cir. 2015) (“Mootness is a jurisdictional matter. Consequently, it

can be raised by a federal court sua sponte.” (citations omitted)).

Plaintiff does not deny that he recorded the conversation with employees of the Quincy

District Court. See [Am. Compl.; ECF Nos. 28, 29, 32, 33]. In his opposition, Plaintiff suggests

that informing one employee of his intent to record the call was sufficient to put Comerford on

notice that the call was being recorded. [ECF No. 32 at 1]. According to the police report

however, after informing that employee, Plaintiff then spoke with a second employee, before the

third conversation with Comerford. [ECF No. 32-1 at 1–24]. Plaintiff does not claim to have

informed Comerford at the start of their conversation that he was recording the call. See [Am.

Compl.; ECF Nos. 28, 29, 32, 33]. Even taking Plaintiff’s allegations as true, Plaintiff has failed

to allege that Defendants lacked probable cause for reporting and bringing a complaint against

him for violating the Massachusetts wiretap statute. See Nieves, 139 S. Ct. at 1723.

Given that Plaintiff has not provided any factual support for his claim that Defendants

took action against him because of a protected First Amendment activity, he has failed to state a

plausible claim for a violation of his First Amendment rights under § 1983. See Holdcraft v.

Town of Brookfield, 365 F. Supp. 3d 190, 199 (D. Mass. 2019) (granting motion to dismiss

where plaintiff failed “to establish the necessary link between” his activities and defendants’

alleged adverse action).9

9 Although courts must construe pro se complaints liberally, Rodi, 389 F.3d at 13, certain defects

cannot be overcome through a liberal reading.

The policy behind affording pro se plaintiffs liberal interpretation is that if they

present sufficient facts, the court may intuit the correct cause of action, even if it

was imperfectly pled. This is distinct from the case at hand, in which the formal

elements of the claim were stated without the requisite supporting facts.

Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

B. Fourth Amendment Claim

Plaintiff also claims that Defendants violated his Fourth Amendment right to be free

from search and seizure. [Am. Compl. at 3, 5, 7]. It appears that Plaintiff contends that bringing

a criminal complaint against him was an unconstitutional search or seizure. See [id.].10

Defendants argue that Plaintiff has failed to plead facts supporting an alleged search or seizure.

[ECF No. 27 at 7–9; ECF No. 31 at 2–3 (adopting Comerford and Tobin’s arguments)].

Defendants focus their discussion of Plaintiff’s Fourth Amendment claim on seizure, and

the Court does the same. See [ECF No. 27 at 7–9]. “For a public official to transgress the

Fourth Amendment through the initiation and pursuit of criminal charges, the prosecution of

those charges must at a bare minimum have occasioned a deprivation of liberty consistent with

the concept of a seizure.” Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir. 2001); see also

Harrington v. City of Nashua, 610 F.3d 24, 30 (1st Cir. 2010) (“To succeed in maintaining a

section 1983 claim for malicious prosecution, a plaintiff must show a deprivation of liberty,

pursuant to legal process, that is consistent with the concept of a Fourth Amendment seizure.”).

Because “the constitutional violation lies in the ‘deprivation of liberty accompanying the

prosecution’ rather than in the prosecution itself,” Britton v. Maloney, 196 F.3d 24, 29 (1st Cir.

10 In his opposition, Plaintiff further suggests that when Potter ran a background check on him,

she engaged in an unconstitutional search and seizure. [ECF No. 32 at 1]. Although the First

Circuit has not addressed this issue, other Courts have held that the Fourth Amendment is not

violated by the running of a routine background check in connection with the filing of a police

report or criminal complaint. See United States v. Villagrana-Flores, 467 F.3d 1269, 1277 n.4

(10th Cir. 2006) (“[T]he Fourth Amendment is not implicated simply because a name, legally

obtained, is later used to run a criminal background check. That action is neither a search nor a

seizure, for there is no legitimate expectation of privacy in one’s criminal history.”); Lewis v.

Gov’t of the D.C., 161 F. Supp. 3d 15, 27 (D.D.C. 2015) (“Plaintiff has identified no privacy

interest implicated by using her name to search databases of criminal records.”).

1999) (quoting Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998)), “[t]he crux of the

inquiry is whether a ‘seizure’ occurred,” id. at 28–29.

Plaintiff does not allege that he was deprived of his liberty or that he was otherwise held

or confined in connection with the charges brought against him. See [Am. Compl.]. The notice

of hearing attached to Plaintiff’s opposition informed Plaintiff that the Quincy Police Department

had “filed an application for criminal complaint” and had “requested a hearing by a judicial

officer . . . .” [ECF No. 32-1 at 4]. The notice goes on to state, “[y]ou may appear at this hearing

to present your side of the case.” [Id. (emphasis added)]. In Britton v. Maloney, the First Circuit

addressed similar circumstances when determining that a defendant was entitled to judgment as a

matter of law on plaintiff’s claim of malicious prosecution. Britton, 196 F.3d at 30. There, the

court found that,

[a]bsent any evidence that [plaintiff] was arrested, detained, restricted in his travel,

or otherwise subject to a deprivation of his liberty before the charges against him

were dismissed, the fact that he was given a date to appear in court is insufficient

to establish a seizure within the meaning of the Fourth Amendment.

Id. This Court likewise finds that, even construed liberally, Plaintiff has failed to allege that he

was subjected to a seizure that could support a Fourth Amendment claim under § 1983. See

Gagliardi, 513 F.3d at 305 (stating that a complaint must contain “factual allegations, either

direct or inferential, respecting each material element necessary to sustain recovery under some

actionable legal theory”).

C. Fourteenth Amendment Claim

Lastly, Plaintiff claims that Defendants violated his Fourteenth Amendment rights, citing

that Amendment’s Equal Protection clause. [Am. Compl. at 3, 5, 7]. Defendants argue that

Plaintiff has failed to plead the necessary elements of an Equal Protection claim. [ECF No. 27 at

9–10; ECF No. 31 at 2–3 (adopting Comerford and Tobin’s arguments)].

To raise an Equal Protection claim, plaintiffs must “establish that there is a factual issue

as to whether, ‘compared with others similarly situated, [they were] selectively treated [unfairly]

. . . based on impermissible considerations such as . . . intent to inhibit or punish the exercise of

constitutional rights . . . .’” Hootstein, 679 F. Supp. 2d at 188 (alterations in original) (quoting

Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995)). As a starting point, plaintiffs “must

first ‘identify and relate specific instances where persons situated similarly in all relevant aspects

were treated differently, instances which have the capacity to demonstrate that plaintiffs were

singled out for unlawful oppression.’” Ayala-Sepulveda v. Municipality of San German, 671

F.3d 24, 32 (1st Cir. 2012) (emphasis omitted) (quoting Buchanan v. Maine, 469 F.3d 158, 178

(1st Cir. 2006)).

Plaintiff’s amended complaint does not allege that others were treated differently than he

was or provide instances of alleged disparate treatment to support a claim under § 1983 that

Defendants violated his Fourteenth Amendment right to equal protection under the law. See Doe

ex rel. B.G. v. Bos. Pub. Sch., No. 17-cv-11653, 2019 U.S. Dist. LEXIS 32705, at *18–19 (D.

Mass. Mar. 1, 2019) (“Plaintiffs have provided no allegations that they were treated differently

from others similarly situated, however, and the Amended Complaint is silent as to the treatment

of others. For these reasons . . . Plaintiffs’ equal protection claim must be dismissed.”). As a

result, Plaintiff has failed to state a claim for relief. See Gagliardi, 513 F.3d at 305 (stating that a

complaint must contain “factual allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal theory”).

D. Qualified Immunity

“Because [Plaintiff] has failed to establish a constitutional violation on part of

[Defendants] . . . the Court does not need to address their qualified immunity argument.” Knox

v. Mass. Dep’t of Corr., No. 1:14-cv-12457, 2017 U.S. Dist. LEXIS 126206, at *45 n.178 (D.

Mass. July 20, 2017), report and recommendation adopted at No. 14-cv-12457, 2017 U.S. Dist.

LEXIS 125121 (D. Mass. Aug. 8, 2017) (adopting report and recommendation and granting

summary judgment); see also Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st Cir.

2005) (“The failure of appellant’s constitutional claims obviates our need to address the qualified

immunity defense: we have found no constitutional violation.”).

E. Attorneys’ Fees

Potter requests attorneys’ fees under 42 U.S.C. § 1988, which provides that “the court, in

its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs . . . .” 42 U.S.C. § 1988; see [ECF No. 31 at 7]. Because

Plaintiff is acting pro se and did not have the benefit of counsel in drafting his amended

complaint, the Court declines to exercise its discretion to grant Potter attorneys’ fees.

IV. CONCLUSION

Accordingly, Comerford and Tobin’s motion, [ECF No. 26], and Potter’s motion (having

been construed as a Rule 12(b)(6) motion), [ECF No. 30], are GRANTED. Potter’s request for

attorneys’ fees under 42 U.S.C. § 1988, [ECF No. 31 at 7], is DENIED.

SO ORDERED.

June 30, 2020 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE