Obele v. Town of Brookline

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

CHIUBA E. OBELE, )

)

Plaintiff, )

)

v. ) Civil No. 20-11117-LTS

)

TOWN OF BROOKLINE, BROOKLINE )

POLICE DEPARTMENT, BRIAN )

MERRIGAN, DAVID PILGRIM, BORIS )

VRAGOVIC, TALIB MORELAND )

)

Defendants. )

)

ORDER ON PLAINTIFF’S MOTION TO AMEND (DOC. NO. 30)

AND DEFENDANTS’ MOTIONS TO DISMISS (DOC. NOS. 19, & 21)

March 4, 2021

SOROKIN, J.

In this action, Plaintiff Chiuba Obele, proceeding pro se, alleges his federal constitutional

rights were violated by officers in the Brookline Police Department. Before the Court are

motions to dismiss brought by Defendants Brian Merrigan, David Pilgrim, and Boris Vragovic

(the “Officer Defendants”) and Defendants the Town of Brookline and the Brookline Police

Department (the “Entity Defendants”). Also before the Court is a motion by Obele to amend his

operative complaint. For the reasons which follow, the Officer Defendants’ Motion to Dismiss

(Doc. No. 21),1 the Entity Defendants’ Motion to Dismiss (Doc. No. 19), and Plaintiff Obele’s

Motion to Amend (Doc. No. 30) are ALLOWED IN PART and DENIED IN PART as detailed

herein.

1 Citations to “Doc. No. __” reference documents appearing on the court’s electronic docketing

system; pincites are to the page numbers in the ECF header.

I. BACKGROUND

On June 11, 2020, Obele filed a Complaint in which he brought claims against several

Brookline police officers and the legal entities which employ them. He also brought claims

against a private citizen, Talib Moreland. In his Complaint, Obele described a series of

interactions between himself, Moreland, and several Brookline police officers. Doc. No. 1.

According to Obele, his girlfriend attempted to evict Moreland from her apartment in the

summer of 2017. This action led to conflict between Obele and Moreland. Partly due to the

escalating tensions between himself and Moreland, Obele was frequently in contact with

Brookline officers over a period of several months. This case concerns Obele’s allegations that

his rights were violated during these interactions.

Obele filed an Amended Complaint on October 2, 2020. Doc. No. 17. Soon thereafter the

Officer and Entity Defendants separately moved to dismiss the Amended Complaint for failure

to state a claim. Doc. Nos. 19, 21.2 Obele opposed the Officer Defendants’ Motion, Doc. Nos.

26, 27, 28, but did not oppose the Entity Defendant’s Motion.3 After briefing finished, Obele

moved to again amend his operative complaint. Doc. No. 30. His Proposed Second Amended

Complaint would (1) remove Brookline Police Department as a defendant, (2) allege certain new

facts regarding Obele’s interaction with Officer Merrigan, (3) bring a new claim against

Moreland, (4) add two supervisory defendants to the action, (5) introduce a common law false

arrest claim against Officer Pilgrim, and (6) bolster Obele’s allegations against the Town of

Brookline. The Officer and Entity Defendants have filed a consolidated Opposition to Obele’s

2 Although titled a Motion to Dismiss, docket entry eighteen appears to be a memorandum in

support of the Officer Defendant’s Motion to Dismiss (Doc. No. 21). The Court rules this

document was filed as a motion in error. The Clerk shall correct the docket.

3 Obele opposes the Entity Defendant’s Motion to Dismiss in the thirty-five-page memorandum

he filed in support of his Motion to Amend. Doc. No. 31.

Motion to Amend, arguing his proposed amendment is futile. Doc. No. 36. The motions are fully

briefed and ripe for disposition.

II. LEGAL STANDARDS

A. Motion to Amend

Under Fed. R. Civ. P. 15(a)(2), leave to amend a complaint shall be “freely give[n] . . .

when justice so requires.” However, courts have discretion to deny leave to amend for several

reasons, including “futility of amendment.” U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40,

48 (1st Cir. 2009). When considering an opposition to a motion to amend on the ground of

futility, courts must apply the standard applicable to a motion to dismiss under Fed. R. Civ. P.

12(b)(6). Hatch v. Dep’t for Child., Youth & Their Fams., 274 F.3d 12, 19 (1st Cir. 2001).

B. Motion to Dismiss for Failure to State a Claim

“In resolving a motion to dismiss, a court should employ a two-pronged approach. It

should begin by identifying and disregarding statements in the complaint that merely offer ‘legal

conclusion[s] couched as . . . fact[ ]’ or ‘[t]hreadbare recitals of the elements of a cause of

action.’” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (alterations in

original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must also disregard

allegations which, “while not stating ultimate legal conclusions, are nevertheless so threadbare or

speculative that they fail to cross ‘the line between the conclusory and the factual.’” Peñalbert–

Rosa v. Fortuño–Burset, 631 F.3d 592, 595 (1st Cir. 2011) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 n.5 (2007)). “Non-conclusory factual allegations in the complaint must then

be treated as true, even if seemingly incredible.” Ocasio-Hernandez, 640 F.3d at 12. The Court

must also draw “all reasonable inferences in favor of the plaintiff[].” Watterson v. Page, 987

F.2d 1, 3 (1st Cir. 1993). If that factual content, so taken, “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged,” then the claim has

facial plausibility. Iqbal, 556 U.S. at 678; Fed. R. Civ. P. 8(a). A complaint by a pro se litigant

must be “liberally construed” and “held to less stringent standards than formal pleadings drafted

by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted).

C. Statutory Liability for Constitutional Violations

“[A] litigant complaining of a violation of a constitutional right does not have a direct

cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983.” Arpin v.

Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). Section 1983 provides

that any person acting under the color of state law who “subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured.” 42 U.S.C. § 1983.

D. Qualified Immunity

Qualified immunity protects government officials “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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quotation marks and citation omitted). “The qualified immunity analysis has two parts.” Cortes-

Reyes v. Salas-Quintana, 608 F.3d 41, 51 (1st Cir. 2010). A court must decide whether the facts

shown by the plaintiff make out a violation of a constitutional right and whether the right was

“clearly established” at the time of the alleged violation by the defendant. Pearson, 555 U.S. at

231. The law is “clearly established” if courts have ruled that “materially similar conduct was

unconstitutional,” or if there is a previously identified general constitutional principle that

applies “with obvious clarity to the specific conduct at issue.” Jennings v. Jones, 499 F.3d 2, 16

(1st Cir. 2007).

III. DISCUSSION

Due to the overlap between the standard for assessing the Defendants’ Motions to

Dismiss and Obele’s Motion to Amend, the Court shall consider all three motions together. The

following discussion proceeds defendant by defendant to determine whether, based on the

allegations of the Proposed Second Amended Complaint, Obele has successfully stated a claim

as to any. The Court shall not discuss the claims relating to Moreland, as he has not appeared.

A. Allegations Concerning Officer Merrigan

Obele alleges that on October 30, 2017, he was waiting for his girlfriend in her apartment

while she was at a medical appointment when he accidentally triggered her burglar alarm. Doc.

No. 30-1 ¶¶ 87–88. Officer Merrigan responded to the alarm, asked to see Obele’s identification,

and became suspicious after determining Obele did not reside in the apartment. Id. ¶ 96. Obele

claims Merrigan then violated his rights during this interaction in various ways, detailed below.

At the end of this first interaction, Merrigan ordered Obele to leave the apartment and then

himself left the scene to resume his duties elsewhere. Id. ¶ 138. Obele waited until Merrigan left

before reentering the apartment and confronting Moreland, after which the two entered into a

physical altercation. Id. ¶¶ 138–143. Obele called the police. Id. ¶ 144. Merrigan returned to the

apartment and Obele was issued a summons for assault and battery. Id. ¶¶ 144, 159.

According to Obele, Merrigan’s actions during their initial interaction violated the Fourth

Amendment (Count I) and the Equal Protection Clause of the Fourteenth Amendment (Count II).

Merrigan denies he violated Obele’s constitutional rights, claims he is entitled to qualified

immunity, and argues Obele’s claim is barred by the holding of Heck v. Humphrey, 512 U.S.

477 (1994).

1. Application of Heck v. Humphrey

Heck does not apply. In Heck v. Humphrey, the United States Supreme Court held that “a

§ 1983 action that impugns the validity of the plaintiff's underlying conviction cannot be

maintained unless the conviction has been reversed on direct appeal or impaired by collateral

proceedings.” Gilles v. Davis, 427 F.3d 197, 208–09 (3rd Cir. 2005) (citing Heck, 512 U.S. at

483). Obele concedes that he was summonsed for assault and battery in relation to his altercation

with Moreland and that he later accepted pretrial probation as to that charge. Doc. No. 30-1 ¶¶

159, 292. Even assuming without deciding that Heck encompasses the pretrial probation

disposition imposed by the state court, Heck would still be inapplicable to the facts of this case

as it only applies where success on a Section 1983 claim would “necessarily imply that [a prior]

conviction was unlawful.” Heck, 512 U.S. 487 n.7 (emphasis in original). Here, Obele’s criminal

charges are largely unrelated to his claims that Merrigan violated his constitutional rights during

their initial interaction. Obele’s charges stem from an altercation between himself and Moreland

which took place after the interaction with Merrigan had finished. Obele waited until Merrigan

had left the scene before returning to confront Moreland, meaning that Merrigan was not

involved and, indeed, was not even present during the fight. Consequently, it is not possible for

Obele’s federal Section 1983 claim to undermine his earlier state proceeding. Heck is

inapplicable.

2. Count I: Fourth Amendment Analysis

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” Carpenter v. United

States, 138 S. Ct. 2206, 2213 (2018) (quoting U.S. Const. amend. IV). Obele alleges that

Merrigan violated his Fourth Amendment rights in several ways. The Court discusses each

allegation in turn.

i. The Alleged Frisk Search. Obele alleges Merrigan frisked him for weapons. Doc. No.

30-1 ¶ 121. Police officers have the authority to perform “a reasonable search for weapons” by

“patting down [a suspect’s] outer clothing,” Terry v. Ohio, 392 U.S. 1, 27, 29 (1968), when,

based on the “totality of the circumstances . . . the [officer has] a particularized, objective basis,”

United States v. McKoy, 428 F.3d 38, 39 (1st Cir. 2005), to suspect that an individual is armed

and dangerous. Officer Merrigan responded to a burglar alarm without backup and, upon arriving

at the residence, discovered a man who did not live there. Whether or not the resulting frisk

search was justified, a reasonable officer in Merrigan’s position would not have known he was

violating the constitution. Merrigan is entitled to qualified immunity as to this claim.

ii. The Alleged Order that Obele Remove his Shirt. Obele alleges Merrigan ordered

him to remove his shirt after the initial warrantless pat-down search. Doc. No. 30-1 ¶ 22.

Although a frisk search of a suspect’s outer clothing is permissible, “to legitimize a search

underneath a suspect's clothing, an officer must reasonably believe, based on the frisk, that

weapons could still be present.” United States v. Ortiz, 54 F. Supp. 3d 1081, 1092 (N.D. Cal.

2014); see Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Assuming Obele’s allegations to

be true and drawing all inferences in his favor—as the Court must at this stage—the Proposed

Second Amended Complaint reveals no basis for requiring Obele to remove his shirt. This claim

may proceed.

iii. The Alleged Search of Obele’s Backpack. Obele alleges Merrigan searched his

backpack without a warrant or consent. Doc. No. 30-1 ¶ 126. A warrantless search of a container

is presumptively unreasonable. See United States v. Jacobsen, 466 U.S. 109, 114 (1984); see

also United States v. Figueroa, 187 F.3d 623, at *3 (1st Cir. 1998) (unpublished table decision).

Granting Obele all reasonable inferences, the Proposed Second Amended Complaint contains no

factual allegations of exigent circumstances as might justify the alleged warrantless search.

Consequently, Obele is entitled to proceed with this claim.

iv. The Alleged Seizure of Obele’s Possessions. Obele alleges Merrigan ordered him to

turn over the contents of his wallet to Moreland. Doc. No. 30-1 ¶ 132. A police officer’s order

requiring a private citizen to forfeit his effects to a third party constitutes a “seizure” within the

meaning of the Fourth Amendment. See Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992). Seizures

conducted without a warrant are presumptively unreasonable. United States v. Place, 462 U.S.

696, 701 (1983). As above, the facts alleged in the Proposed Second Amended Complaint do not

reveal any exigent circumstances justifying the alleged warrantless seizure. Consequently, Obele

may proceeding with this claim.

v. The Alleged Order that Obele Leave the Apartment. Obele alleges Merrigan

ordered him to leave the apartment in violation of the Fourth Amendment. Doc. No. 30-1 ¶ 133.

As protectors of the public peace, officers may constitutionally order citizens in public places to

move along or disperse. Cox v. Louisiana, 379 U.S. 536, 554–55 (1965); but see Shuttlesworth v.

City of Birmingham, 382 U.S. 87, 90–91 (1965) (recognizing limits on this authority). This

authority is diminished, however, in the context of a private residence. In Higgins v. Penobscot

County Sheriff’s Department, 446 F.3d 11, 14 (1st Cir. 2006) (per curiam), the First Circuit

considered whether a police officer could be subjected to liability for ordering the lawful owner

of a property to leave when the owner’s right to be on the premises was disputed by others

present on the scene and there was circumstantial evidence to suggest that the owner did not, in

fact, have a lawful right to be on the premises. Id. The First Circuit assumed the police officer’s

order may have violated the Constitution but granted the officer qualified immunity because the

officer’s order, based on the facts known at the time, was “neither plainly incompetent nor

involved a deliberate violation of the law.” Id. at 14–15. The same is true here. Officer Merrigan

responded to a burglar alarm. Upon arriving at the premises, he discovered Obele, a man who

could not prove he lived there. Id. ¶ 96. Moreland, an obvious resident of the apartment, then

informed Merrigan that Obele did not have a right to be on the premises and, indeed, that Obele

had broken into the premises and stolen his wallet. Id. ¶ 128. Under these circumstances,

Merrigan’s order that Obele leave the premises until the homeowner returned was “neither

plainly incompetent nor involved a deliberate violation of the law.” Higgins, 446 F.3d at 14–15.

Merrigan is entitled to qualified immunity on this claim.

3. Count II: Equal Protection Analysis

Obele argues that Merrigan searched him and ordered him to leave because of his race, in

violation of the Fourteenth Amendment’s Equal Protection Clause. To support his claim, Obele

alleges that Merrigan made several racially charged comments during their interaction. It is well

established that governmental action may be subjected to scrutiny under several constitutional

provisions, and that actions which may be permissible under one provision may be impermissible

under another. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (rejecting Fourth

Amendment claim but noting the same conduct, if done with discriminatory purpose, would

violate the Fourteenth Amendment). It is equally well established that a state official violates the

Fourteenth Amendment’s Equal Protection Clause if they decide to selectively subject citizens to

search or seizure because of their race. See Lopera v. Town of Coventry, 640 F.3d 388, 402 (1st

Cir. 2011); Whren, 517 U.S. at 813 (“[T]he Constitution prohibits selective enforcement of the

law based on considerations such as race.”). In order to prevail on such a claim, a plaintiff must

plead minimally sufficient facts to plausibly allege they were treated differently from similarly

situated citizens of another race and that the actions taken against them were motivated, at least

in part, by their race. Flowers v. Fiore, 239 F. Supp. 2d 173, 178 (D.R.I. 2003), aff'd, 359 F.3d

24 (1st Cir. 2004).

At this early stage of the litigation, the law requires that Obele’s factual allegations be

accepted as true and that all reasonable inferences be drawn in his favor. See Ocasio-Hernandez,

640 F.3d at 12. Applying that standard, Obele has plausibly stated a claim under the Fourteenth

Amendment as to Merrigan.

B. Allegations Concerning Officer Vragovic

Obele alleges that on November 3, 2017, he overheard Moreland in his bedroom making

nonspecific threats of violence, which Obele and his girlfriend understood to be threats against

themselves. Doc. No. 30-1 ¶¶ 165–67. Obele and his girlfriend contacted the police. Soon

thereafter, the police responded to the apartment and searched Moreland’s room but discovered

no illegal weapons or firearms. Id. ¶ 169, 182, 188. Officer Vragovic was among the officers

who responded and, according to Obele, Vragovic made several insulting remarks about the fact

Obele’s girlfriend is older than him. Id. ¶¶ 174–181. After the search, Vragovic allegedly refused

to arrest Moreland despite Obele’s urging.4 Count V of Obele’s Proposed Second Amended

Complaint alleges that Vragovic’s refusal to arrest Moreland violated the Equal Protection

Clause of the Fourteenth Amendment.

4 The parties have assumed in their briefing that Vragovic made the decision to not arrest

Moreland. Because the parties seem to agree that this may be fairly inferred from the allegations

in Obele’s Proposed Second Amended Complaint, the Court shall assume the same. The Court

notes, however, that a more senior police officer appears to have been present on the scene, see

Doc. No. 30-1 ¶ 178 (noting Police Lieutenant John Canney was present).

Obele has failed to state a claim. Unkind comments, even those made by police officers,

do not themselves rise to the level of a constitutional violation. See Fortin v. Cox, No. 1:14-CV-

00223-GZS, 2015 WL 773403, at *3 (D. Me. Feb. 24, 2015). And, in general, there is no

constitutional right to have someone else arrested. Town of Castle Rock v. Gonzales, 545 U.S.

748, 768 (2005). Obele insists Vragovic chose to dismiss his complaints, in part, due to

stereotypes about men who date older women, thereby denying him equal protection of the law.5

Obele is correct that as a general matter a state may not “deny its protective services to certain

disfavored minorities without violating the Equal Protection Clause.” DeShaney v. Winnebago

Cnty., 489 U.S. 189, 197 n.3 (1989) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). But the

aged (and those they date) are not typically considered a disfavored minority because they have

neither “experienced a ‘history of unequal treatment’ [n]or been subjected to unique disabilities

on the basis of stereotyped characteristics not truly indicative of their abilities.” Cleburn v.

Celbrune Living Ctr., 473 U.S. 432, 441 (1985) (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S.

307, 313 (1976)). Courts are consequently hesitant to second guess age-based classifications,

meaning state actors “may discriminate on the basis of age without offending the Fourteenth

Amendment if [doing so] is rationally related to a legitimate state interest.” Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 83 (2000); cf. Gerald Gunther, Foreword, The Supreme Court, 1971 Term,

86 Harv. L. Rev. 1, 8 (1972) (describing this form of judicial review as “minimal scrutiny in

theory and virtually none in fact”).

5 Obele also argues Vragovic was motivated by racial animus. The only allegation to support this

theory is Obele’s claim that Vragovic used the word “brotha,” in reference to Obele, while

making a joke about the age of Obele’s girlfriend. Doc. No. 30-1 ¶ 177. This lone remark is

insufficient to plausibly allege racial animus.

Measured against this low standard, Obele has failed to state a claim. His Proposed

Second Amended Complaint reveals ample legitimate and rational reasons for allowing

Moreland to walk free. For example, neither Obele nor his girlfriend reported that Moreland

made specific threats towards them, Moreland was cooperative with police officers, and

Moreland had no illegal weapons in his room. Doc. No. 30-1 ¶ 186.

In any event, Vragovic is entitled to qualified immunity. Assuming the Equal Protection

Clause does require that the police not discount a complainant’s allegations because of the age

difference between the complainant and the complainant’s paramour, this right was not clearly

established in November 2017. As Obele concedes, “there is no case law,” Doc. No. 27 at 11,

from any court that is analogous to the alleged facts of his case. And Obele has been unable to

point to any judicial opinion suggesting, even as an abstract proposition, that such a right exists.

Doc. No. 27 at 9–11. The Court’s own research has revealed none. Nor does the Court believe

such a right would be “obvious” to a reasonable officer, as Obele contends, given the low level

of scrutiny traditionally given to age-based discrimination. Consequently, the claims against

Defendant Vragovic are DISMISSED.

C. Allegations Concerning Officer Pilgrim

Obele alleges in his Proposed Second Amended Complaint that he was wrongfully

arrested by Officer Pilgrim on November 18, 2017 in violation of both the Fourth Amendment

(Count I) and state law forbidding false arrest and imprisonment (Count IX).6 These claims both

6 In Massachusetts, an arresting officer may be liable for false arrest or imprisonment unless the

officer had reasonable grounds” for making the arrest. The requirement of “reasonable grounds”

substantially overlaps with the constitutional requirement of probable cause and the Court

therefore treats Counts I and IX as identical, for the purposes of this discussion. Sorenti v. Doyle,

2013 WL 1403489, at *4 (D. Mass. Apr. 4, 2013); Robinson v. Cook, 863 F. Supp.2d 49, 72 (D.

Mass. 2012), aff’d, 706 F.3d 25 (1st Cir. 2013).

fail because Obele’s factual allegations demonstrate that his arrest was supported by probable

cause.

The Fourth Amendment permits police officers to conduct a warrantless arrest when they

have probable cause to believe a crime has been committed in their presence. See Virginia v.

Moore, 553 U.S. 164, 176–77 (2008). Under Mass. Gen. Laws ch. 268, § 32B, a person commits

the offense of resisting arrest “if he knowingly prevents or attempts to prevent a police officer,

acting under color of his official authority, from effecting an arrest . . . by . . . using or

threatening to use physical force or violence against the police officer.” A person is guilty of

resisting arrest in Massachusetts whether or not the arresting officer had probable cause to

initiate the arrest. See Commonwealth v. Moreira, 388 Mass. 596, 601 (1983) (holding that,

absent use of excessive force, defendant had no right to resist even unlawful arrest).

In his Proposed Second Amended Complaint, Obele alleges that the police informed him

they were going to arrest him after an altercation with Moreland on November 18th. Doc. No. 30-

1 ¶¶ 275. Obele candidly admits that he resisted arrest and that these acts of resistance began

before he was seized by the police. Id. ¶¶ 276, 278. Accepting Obele’s allegations as true, the

arresting officers therefore had probable cause to suspect Obele of the crime of resisting arrest

when they seized him. It makes no difference whether the police originally intended to arrest

Obele for an entirely different crime—the existence of probable cause for one crime (here,

resisting arrest) is all that is needed to justify an arrest. See Davenpeck v. Alford, 543 U.S. 146,

153–54 (2004). Obele spends considerable energy arguing the officers did not have probable

cause to arrest him when they asked him to stand and place his hands behind his back. But the

officer’s request that Obele submit to arrest did not itself constitute a seizure within the meaning

of the Fourth Amendment because Obele did not comply. See Brower v. Cnty of Inyo, 489 U.S.

593, 598–599 (1989). Thus, it is immaterial whether that request was supported by probable

cause. According to Obele’s allegations, the seizure only occurred after he had begun to resist

arrest, meaning that the arrest itself was lawful. Obele’s claims against Pilgrim fail.7

D. Allegations Concerning the Town of Brookline

Obele asserts various causes of action against the Town of Brookline across his several

complaints. These are discussed in turn.

1. Count I: Fourth Amended Analysis

In Count I of his Amended Complaint, Obele asserts that the Town is liable for

Merrigan’s alleged violations of his Fourth Amendment rights under Section 1983 because of its

failure to adequately train and supervise its officers. Local governments are “persons” subject to

liability under Section 1983 when an official policy or custom causes a constitutional tort. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). To impose municipal liability under

Section 1983 for a violation of constitutional rights resulting from governmental inaction or

omission, a plaintiff must show: “(1) that he possessed a constitutional right of which he was

deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate

indifference’ to the plaintiff's constitutional rights; and (4) that the policy is the ‘moving force

behind the constitutional violation.’” Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th

Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389–91 (1989)).

Obele has not adequately alleged that the Town has a custom or policy of violating the

Fourth Amendment. Rather, his Proposed Second Amended Complaint claims the Town

practices racially discriminatory policing and that its officers “target black citizens in a manner

7 As was the case with Officer Vragovic, the parties have assumed in their briefing that these

claims are properly brought against Pilgrim despite the fact that nowhere in the Proposed Second

Amended Complaint is it alleged that Pilgrim was responsible for Obele’s arrest.

different than those of other races.” Doc. No 30-1 at 13. Consequently, most of Obele’s

allegations regarding the Town’s policies and customs involve incidents in which no discernable

Fourth Amendment violation occurred. See, e.g., id. at 10–11 (discussing allegations of racial

bias in handling of citizen complaints); see also id. at 19–21 (alleging Brookline police falsely

initiated noncustodial criminal proceedings against several black citizens). Obele does describe

incidents in which it is possible to discern potential Fourth Amendment claims. See, e.g., id. at

12 (alleging police “falsely charged [a] Hispanic couple”). But these threadbare allegations lack

sufficient factual details to allow the reasonable inference that the Fourth Amendment was in fact

violated. Obele has therefore failed to adequately plead a custom or policy, meaning his claim

against the Town under Count I fails.

2. Count II: Fourteenth Amended Analysis

In Count II of his Amended Complaint, Obele asserts that the Town is liable for an

alleged violation of the Equal Protection Clause of the Fourteenth Amendment, as stated against

Officer Merrigan, under a Monell theory of liability. After a careful review of the detailed factual

allegations contained in Obele’s Proposed Second Amended Complaint, Doc. No. 30-1 ¶¶ 20–

67, the Court concludes Obele has plausibly stated a claim within the meaning of Rule 12(b)(6)’s

standard for preemptory dismissal.

3. Remaining Counts as to the Town of Brookline

In Count V of the Amended Complaint, Obele alleges that the Town is liable for the

constitutional injuries he claims to have suffered through the actions of Vragovic. Because Obele

has failed to allege a constitutional claim against Vragovic, his derivative claim against the Town

also fails.

In Count VI of the Amended Complaint, Obele asserts a freestanding Monell claim

against the Town. For the reasons already given, Count VI is DISMISSED except as to the

Fourteenth Amendment Equal Protection claim which forms the basis of Count II.8 Counts VII

and VIII of the Proposed Second Amended Complaint also seek to assert freestanding Monell

claims against the Town. Obele’s Motion to Amend is DENIED with respect these proposed

Counts as they are duplicative of other claims.

E. Allegations Concerning the Brookline Police Department

In his Motion for Leave to Amend, Obele states that he wishes to “remove[] Brookline

Police Department as a Defendant.” Doc. No. 30 at 1. The Court construes this as a motion for

voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2). The motion is

ALLOWED, and Defendant Brookline Police Department is DISMISSED.

F. Allegations Concerning the Proposed Supervisory Defendants

In his Proposed Second Amended Complaint, Obele seeks to add John Canney and

Michael Raskin as defendants. Obele claims Lieutenant Canney is liable for the conduct of

Officer Vragovic, Doc. No. 30-1 ¶ 178, and that Sergeant Raskin is liable for the conduct of

Officer Pilgrim. Doc. No. 30-1 ¶ 256. Obele does not allege that either Supervisory Defendant

themselves directly engaged in unconstitutional conduct. Rather he argues they bear supervisory

liability for the alleged actions of their subordinates. It is true that “a supervisor who does not

directly engage in the unconstitutional behavior may be liable under section 1983.” Ramirez-

Lluveras v. Pagan-Cruz, 833 F. Supp. 2d 165, 174 (D.P.R. 2011), aff'd sub nom. Ramirez-

Lluveras v. Rivera-Merced, 759 F.3d 10 (1st Cir. 2014). But to establish such a claim, Obele

8 As a result of this ruling, Count VI is entirely duplicative of the claim against the Town pleaded

in Count II.

must show that “the behavior of [a] subordinate[] result[ed] in a constitutional violation.” Lipsett

v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988) (citations omitted). Here, the Court has

already concluded that Obele has failed to adequately allege that his constitutional rights were

violated by Vragovic or Pilgrim. This being the case, his derivative claims against those officers’

supervisors must also fail.

G. Remaining Matters

1. Obele’s Motion for Leave to File Excess Pages

Obele’s Motion for Leave to File Excess Pages (Doc. No. 32) is ALLOWED. The Court

pauses, however, to review Obele’s filings to date. Obele filed three separate Oppositions to the

Officer Defendants’ consolidated Motion to Dismiss (one for each officer). Doc. Nos. 26, 27, &

28. This is a violation of Local Rule 7.1, which only allows litigants to file one opposition per

motion. Obele also attached an additional ten pages of briefing to one of these Oppositions as an

appendix, in violation of Local Rule 7.1’s limit on the length of filings.9 The Court reminds

Obele that it expects him to conduct himself in line with all applicable rules in the future,

including those governing the length of briefs, L.R. 7.1, and the form and formatting of briefs,

L.R. 5.1.10

2. Defendant Moreland

Nothing in the record indicates that Defendant Moreland has been served. Federal Rule of

Civil Procedure 4(m) provides that:

If a defendant is not served within 90 days after the complaint is filed, the court—

on motion or on its own after notice to the plaintiff—must dismiss the action

9 In total, Obele has filed ninety-six pages of briefing during this motion sequence. Doc. Nos. 26,

27, 28, & 31. The Court does not anticipate permitting such lengthy filings in the future.

10 The Court’s Local Rules are available through the Court’s website:

https://www.mad.uscourts.gov/general/rules-home.htm.

without prejudice against that defendant or order that service be made within a

specified period of time.

More than six months have elapsed since Obele named Moreland in the Complaint. The

Court therefore ORDERS Obele to either file proof of service or show cause why Moreland

should not be dismissed from the action within fourteen days.

IV. CONCLUSION

For the foregoing reasons, the Officer Defendants’ Motion to Dismiss (Doc. No. 21), the

Entity Defendants’ Motion to Dismiss (Doc. No. 19), and Plaintiff Obele’s Motion to Amend

(Doc. No. 30) are ALLOWED IN PART and DENIED IN PART as detailed herein. It is hereby

ORDERED:

1. Count I of the Amended Complaint is DISMISSED as to Defendants Pilgrim, the

Brookline Police Department, and the Town of Brookline. Count II of the Amended

Complaint is DIMISSED as to the Brookline Police Department. Count V of the

Amended Complaint is DISMISSED in its entirety. Count VI of the Amended

Complaint is DISMISSED except with regard to the Equal Protection Clause of the

Fourteenth Amendment allegations arising from Obele’s interaction with Defendant

Merrigan.

2. Defendants Pilgrim, Vragovic, and the Brookline Police Department are

DISMISSED as parties to the case.

3. Obele’s Motion for Leave to Amend (Doc. No. 30) is ALLOWED with respect to

the changes reflected in Count IV and paragraphs 1–10 and 20–148 of the Proposed

Second Amended Complaint and DENIED in all other respects. Obele shall file a

second amended complaint reflecting the changes allowed within fourteen days.

4. Obele shall show cause why Defendant Moreland should not be dismissed from

this suit within fourteen days.

5. The Clerk shall remove Obele’s private medical records (Doc. No. 30-7) from the

public docket and refile these documents under seal.

6. The Clerk shall correct the docket to reflect that docket entry eighteen is a

memorandum and not a motion.

7. Obele’s Motion for Leave to File Excess Pages (Doc. No. 32) is ALLOWED.

8. Obele’s request for oral argument (Doc. No. 33) is DENIED AS MOOT.

9. The Clerk shall schedule a Rule 16 conference to establish a schedule for the only

claims that remain in this case, specifically:

a. Count I: The Fourth Amendment claim against Officer Merrigan arising

from (i) the alleged order requiring Obele to remove his shirt, (ii) the

alleged search of Obele’s backpack, and (iii) the alleged seizure of Obele’s

possessions.

b. Count II: The Equal Protection Clause of the Fourteenth Amendment

claim against Officer Merrigan and against the Town of Brookline, as to

the actions of Officer Merrigan, under a Monell theory of liability.

c. Count VI: The Equal Protection Clause of the Fourteenth Amendment

claim against the Town of Brookline, as to the actions of Officer

Merrigan, under a Monell theory of liability.

d. The claims regarding Defendant Moreland, while not dismissed by this

Order, shall not be considered at the scheduling hearing as Moreland has

not appeared.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United States District Judge