The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JEAN REGIS and VERLANDE REGIS, *
On their own behalf and on behalf of their *
minor children, M, J, and H, *
*
Plaintiffs, *
*
v. * Civil Action No. 19-cv-10527-IT
*
CITY OF BOSTON, WILLIAM GROSS, *
WILLIAM FEENEY, JOHN DOES 1-10, *
MATTHEW PIEROWAY, *
*
Defendants. *
MEMORANDUM & ORDER
June 1, 2020
TALWANI, D.J.
Following the Boston Police Department’s (“BPD”) mistaken no-knock raid of their
home, Plaintiffs Jean and Verlande Regis, on their own behalf and on behalf of their minor
children, M, J, and H, sued the City of Boston (the “City”) and BPD Commissioner William
Gross (collectively the “City Defendants”) and several of the officers involved in the raid.
Plaintiffs allege violations of rights arising under both federal and state law. Before the court is
the City Defendants’ Motion to Dismiss [#23] counts II, III, and IV of Plaintiffs’ Amended
Complaint [#20] (“Complaint”) and Plaintiffs’ Motion to Amend the Complaint [#41] to name the
officers previously identified as John Does. For the reasons set forth below, the City Defendants’
Motion to Dismiss is DENIED as to Counts II and IV and DENIED WITHOUT PREJUDICE as
to Count III, and Plaintiffs’ Motion to Amend is GRANTED.
I. FACTUAL BACKGROUND AS ALLEGED IN THE COMPLAINT
At approximately 4:30 a.m. on November 27, 2018, approximately 10-12 officers with the
Drug Control Unit of the BPD executed a “no-knock” raid of the Regis’s home. Am. Compl.
¶¶ 10, 11, 13 [#20]. Although the officers possessed a warrant to execute a raid, the warrant was
issued for an adjoining apartment, not the Regis’s. Id. ¶ 26. The officers used a battering ram to
forcibly enter the Regis’s home without first knocking or otherwise announcing their presence. Id.
¶ 1. The officers forcibly entered the Regis’s home in spite of the fact that their front door was
conspicuously marked with their apartment number, which differed from the apartment number
listed on the warrant. Id. ¶ 26.
Once inside, the officers first encountered Verlande Regis after she leapt from her bed
upon hearing the sound of the door being broken down. Id. ¶ 14. The officers pointed their
weapons at Verlande Regis, pushed her to the ground, and handcuffed her. Id. While she was
laying on the floor, several officers stepped on her and injured her hand. Id. The officers then
encountered Jean Regis as he lay in bed. Id. ¶ 15. An officer pointed his weapon at Jean Regis,
ordered him out of bed, and handcuffed him with his arms behind his back. Id. Because the
Regis’s four- and five-year-old children had been sleeping inside their parents’ bedroom, the
children witnessed their parents being restrained and handcuffed. Id. ¶ 19.
The officers also encountered the Regis’s 15-year-old daughter, M. Id. ¶ 17. When M
attempted to open her bedroom door, she was shoved back into her room by an officer’s shield.
An officer also aimed his weapon at M, ordered her to the floor, and handcuffed her with her
arms behind her back. Id. ¶ 18.
Although none of the Regis family members matched the description of the intended
target set forth in the search warrant, and none of the occupants resisted during the officers’
intrusion into their home, the officers kept Jean Regis, Verlande Regis, and M handcuffed and
lying on the floor for approximately 20 minutes. Id. ¶¶ 19, 27. One of the officers then told the
family and the other officers that they had entered the wrong apartment. Id. ¶ 22. Plaintiffs state
that they have suffered and continue to suffer harm as a result of this incident. Id. ¶ 29.
On December 27, 2018, Plaintiffs sent a public records request to the City of Boston’s
Police Department in order to acquire records showing trainings and established practices for
police officers regarding the execution of no-knock warrants. Id. ¶ 30. When Plaintiffs did not
receive a response within ten business days, as required by Mass. Gen. Laws. ch. 66, § 10,
counsel for plaintiffs filed an appeal to the Supervisor of Public Records within the Secretary of
the Commonwealth’s office. Id. The Supervisor of Records issued a ruling on February 22, 2019,
stating that the City had failed to comply with the public records law and ordering that a response
be provided within another ten business days. Id. ¶ 30. Plaintiffs allege that there was still an
unreasonable delay after the ruling—arguing that the City produced some of the requested
documents only after Plaintiffs filed this present action. Id. ¶ 31.
II. PROCEDURAL BACKGROUND
Plaintiffs filed their Complaint [#1] on March 20, 2019. In response, Defendants Matthew
Pieroway and William Feeney filed Answers [#14], [#15], and the City Defendants filed a Motion
to Dismiss Counts II, III, and IV [#16] pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiffs promptly filed an Amended Complaint [#20]. Defendants Peiroway and Feeney
again filed Answers [#21], [#22]. The City Defendants renewed their Motion to Dismiss Counts
II, III, and IV [#23], and Plaintiffs have filed their Opposition [#28].
Plaintiffs subsequently filed a Motion to Amend the Complaint [#41] seeking to name the
officers previously identified as John Does. The City of Boston has filed an Opposition [#43] to
the motion and Plaintiffs have filed a Reply [#47].
III. THE CITY DEFENDANTS’ MOTION TO DISMISS
a. Standard of Review
To survive a motion to dismiss, the well-pleaded facts in a plaintiff’s complaint must
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). The First Circuit has explained that a court “must distinguish the complaint’s factual
allegations (which must be accepted as true) from its conclusory legal allegations (which need not
be credited)” in reviewing a complaint under a Fed. R. Civ. P. 12(b)(6) motion to dismiss.
Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015) (internal citations and
quotations omitted). The plausible factual allegations, taken as true, must ultimately be able to
support the legal conclusion that underlies each claim for relief. See Haley v. City of Boston, 657
F.3d 39, 46 (1st Cir. 2011).
b. Count II – 42 U.S.C. § 1983 Against City Defendants
As a general matter, a city cannot be held vicariously liable under a § 1983 claim for their
employee’s actions. Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. New York
City Dept. of Social Servs., 436 U.S. 658, 692 (1978)). However, a city may be held liable under
§ 1983 for its own illegal acts. Id. (citing Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). To
do so, a plaintiff must show that a city’s “policy or custom is responsible for causing the
constitutional violation or injury.” Kelley v. LaForce, 288 F.3d 1, 9 (1st Cir. 2002) (citing
Monell, 436 U.S. at 690–91)).
Liability for a city’s “policy or custom” may, under “limited circumstances,” extend to a
city’s failure to properly train employees. Connick, 563 U.S. at 61. For a city to be liable under a
“failure to train” theory of liability, the city’s failure must reach a level of “deliberate indifference
to the rights of persons with whom the untrained employees come into contact.” Id. at 61 (citing
City of Canton v. Harris, 489 U.S. 378, 388 (1989)). To prove deliberate indifference, a plaintiff
must show that “a municipal actor disregarded a known or obvious consequence of his action”
and that there was a “a direct causal link” between the municipality’s conduct (or lack thereof)
and the constitutional injury. Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404
(1997). In order to avoid failure-to-train claims from devolving into a de facto vicarious liability
standard, a plaintiffs must show either a “pattern of similar constitutional violations” or “that need
for more or different training is so obvious and the inadequacy is so likely to result in the
violation of constitutional rights.” Hill v. Walsh, 884 F.3d 16, 24 (1st Cir. 2018) (citing Bd. of
Cty. Comm'rs, 520 U.S. at 409; City of Canton, 489 U.S. at 390).
Here, Plaintiffs make a number of allegations as to why the City Defendants are liable
under § 1983 for both the City Defendants’ policies and customs and for their failure to train its
employees. Specifically, they allege the City Defendants have a policy that the warrant affiant is
not to be present where and when the BPD deploys “SWAT” teams to execute a no-knock raid,
Am. Compl. ¶ 33 [#20]; an absence of a city policy requiring officers to check the names of
individuals on a warrant with the names of individuals residing in a unit that is being raided
before executing the raid, id. ¶ 34; an absence of a city policy requiring officers conducting a raid
to double check the property address against the warrant address before executing the raid, id.; an
absence of a policy requiring officers conducing the raid to survey the home the day before the
raid so as to ensure that the activity in the home is consistent with that described in the warrant,
id.; an absence of a policy requiring officers to immediately compare the names and described
features of those individuals named in the warrant with those encountered in the property being
raided, id.; and, a failure to train officers on how to interact with children encountered in a home
that is being raided, id. ¶ 35.
Plaintiffs Amended Complaint [#20] sets forth short and plain statements of the claim for
which they are seeking relief, and these statements are sufficient to provide the City Defendants
with notice as to the basis for the claims. The City Defendants do not dispute this. Nevertheless,
the City Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). The City Defendants
argue that the complaint only describes an “isolated incident” and that the City’s existing policies
on executing no-knock raids, which the City attaches to its opposition, show “quite the opposite
of ‘deliberate indifference’ with regard to ensuring entries at correct addresses.” Defs.’ Mem. 11
[#24]. Maybe so, but these arguments go to the merits of Plaintiff’s claims that there is a direct
causal link between the City’s policies and the alleged violation of the Regis’s family’s rights and
that the City was deliberately indifferent to how their failure to train its officers caused the
alleged violations under the federal Constitution.1 They do not undermine the sufficiency of the
pleadings.2
c. Count III – Massachusetts Civil Rights Act Against City Defendants
City Defendants argue that they may not be held liable under the Massachusetts Civil
Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, §§ 11H and 11I, since “there is no available
1 City Defendants briefly raise the argument that the Amended Complaint fails to even raise a
constitutional injury since it is questionable that even the incident at bar involved the deprivation
of rights guaranteed under the Constitution.” Defs.’ Mem. 10 [#24]. This argument is troubling.
“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own
home and there be free from unreasonable governmental intrusion.” Silverman v. United States,
365 U.S. 505, 511 (1961). Defendants argue that the Regis’s right to be secure in their own home
gave way to an officer’s “objectively understandable and reasonable” mistake. Defs.’ Mem. 10
[#24] (citing Maryland v. Garrison, 480 U.S. 79, 88 (1987)). It is difficult to understand how the
allegations set forth in the complaint describe a mistake that was either objectively
understandable or reasonable.
2 This is not to say that every allegation of a constitutionally infirm policy or custom should
survive a challenge under Fed. R. Civ. P. 12(b)(6). “[A] municipality can be held liable only if a
policy or custom actually exists, and should not be forced to expend its limited resources
conducting discovery in every case where a plaintiff makes a bare allegation of a “policy or
custom.” Bochart v. City of Lowell, 989 F. Supp. 2d 151, 155 (D. Mass. 2013). But here there is
no bare allegation. The uncontested events that give rise to the complaint—that the City raided
the wrong home in the middle of the night—give plausibility to the allegation that the city’s
policies regarding no-knock raids and their failure to properly train their employees frustrates the
rights secured to the Regis Family and others under the federal Constitution.
mechanism for imposing municipal liability for MCRA violations.” Defs.’ Mem. 13 [#24].
Defendants, in the course of a single paragraph, cite several cases from the Massachusetts
Appeals Court and from this district for the proposition that, as a matter of law, the MCRA does
not extend liability to municipalities directly or vicariously. Id.
The City Defendants’ portrayal of municipality liability under the MCRA as an open and
shut issue is not accurate. Although the cases cited by the City Defendants are to be accorded
“some weight,” this court is “duty-bound to accept controlling state law as set forth by . . . the
SJC.” Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 54–55 (1st Cir. 2008);
GGNSC Admin. Servs., LLC v. Schrader, 958 F.3d 93, 95 (1st Cir. 2020). On this issue, the SJC
considers the question unresolved. In Swanset Dev. Corp. v. City of Taunton, the SJC transferred
that case to itself “principally to consider whether a municipality should be considered a ‘person’
for purposes of liability under the [MCRA]” but did not address the question because it had not
been adequately briefed. 423 Mass. 390, 391 (1996). More recently, in Am. Lithuanian
Naturalization Club v. Bd. of Health of Athol, the SJC cited Swanset Dev. Corp. for the
proposition that “it is not resolved whether the Civil Rights Act applies to municipalities.” 446
Mass. 310, 325-26 (2006). Since City Defendants’ Motion to Dismiss Count III is based entirely
on the mistaken presumption that there is controlling law that the MCRA does not apply to
municipalities, the motion is denied without prejudice.
d. Count IV – Public Records Claim Against City of Boston
Plaintiffs allege that the City violated the Massachusetts Public Records Law, Mass. Gen.
Laws ch. 66, § 10, by not providing all records that were properly requested and / or by providing
some records only after the Regis family sued the city under the Public Records Law. Am.
Compl. ¶ 51 [#20]. The City moves to dismiss the claim on the basis that it is “moot” since,
according to the City, the City’s production was not deficient. Defs.’ Mem. 14. [#24]. The City’s
Motion to Dismiss the claim does not address the timeliness of their response other than to state,
in a footnote, that one of the records was “for a subset of police records that clearly could not be
quickly segregated or identified.” Id. at 14 n.7.
As an initial matter, the City disagrees about the sufficiency of its production. It is
elementary that the court cannot resolve this disagreement on a Fed. R. Civ. P. 12(b)(6) motion
without converting it to a motion for summary judgment. Even beyond the sufficiency of the
production, Plaintiffs’ claim that the production was untimely remains unresolved. Massachusetts
Law provides that a requestor may be entitled to attorney fees and costs “in any case in which the
requestor obtains relief through . . . the provision of requested documents after the filing of a
complaint.” Mass. Gen. Laws ch. 66 § 10A(d)(2). Accordingly, even if Plaintiffs are wrong
regarding the sufficiency of the most recent production, Plaintiffs’ claim that the city failed to
comply with the Massachusetts Public Records Law has not been mooted.
IV. PLAINTIFFS’ MOTION TO AMEND
Also before the court is Plaintiffs’ Motion to Amend the Complaint [#41] so as to replace
fictitious “John Doe” names with the actual names of the BPD police officers involved in the raid
now that those names have been revealed through discovery. Plaintiffs’ motion is timely under
the Scheduling Order [#35] issued by the court. Accordingly, Plaintiff’s motion is considered
under Fed. R. Civ. P. 15(a)(2), which directs that the court “freely give” leave to amend where the
interests of justice so require. City Defendants nonetheless object to Plaintiffs’ request to amend
the complaint on the basis that the proposed amendments are futile, since the named officers
would enjoy qualified immunity for the alleged conduct. Defs.’ Opp’n [#43]. Plaintiffs’ counsel
has represented that these concerns were not raised by the City Defendants in the Local Rule
7.1(a)(2) conference that occurred before the motion for leave to amend was filed. See Pls.’ Mem.
1 [#45]. Furthermore, the objections raised by the City Defendants do not present any argument
as to how granting leave would prejudice or otherwise harm them. If the court were to consider
this argument and rule against the City Defendants, the officers would still have the right to
relitigate the issue. Accordingly, the timely motion to amend is allowed and the court will
address the qualified immunity argument in the first instance if raised by the Defendant officers
themselves.
V. CONCLUSION
For the reasons set forth above, City Defendants’ Motion to Dismiss [#23] is DENIED as
to Counts II and IV and DENIED WITHOUT PREJUDICE as to Count III and Plaintiffs’ Motion
to Amend [#41] is GRANTED. Plaintiffs shall promptly file their second amended complaint.
Within twenty-one days of the filing of the second amended complaint, the City Defendants shall
file an answer as to Counts II and IV and may file an answer or a motion to dismiss as to Count
III.
Upon the filing of the second amended complaint, the clerk shall issue summonses as to
the newly added Defendants.
IT IS SO ORDERED.
Date: June 1, 2020
/s/ Indira Talwani
United States District Judge