Abubardar v. Henriquez

United States District Court

District of Massachusetts

)

Raheem Rashed Abubardar, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 20-11590-NMG

William Gross and Ismael )

Henriquez, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This action arises from the arrest of plaintiff Raheem

Rashed Abubardar (“Abubardar” or “plaintiff”) by Boston Police

Detective Ishmael Henriquez (“Henriquez”) for his alleged

failure to provide notice of a change of address in violation of

M.G.L. c. 6, § 178H. In December, 2019, Plaintiff filed a

complaint against Henriquez and Boston Police Commissioner

William Gross (“Commissioner Gross”) (collectively,

“defendants”) in Massachusetts Superior Court, alleging that

defendants subjected him to false arrest and malicious

prosecution, thereby violating his constitutional rights and

also intentional infliction of emotional distress. He filed his

First Amended Complaint (“FAC”) in July, 2020, whereupon

defendants removed the action to this Court pursuant to 28

U.S.C. §§ 1331 and 1441(c).

Pending before the Court is defendants’ motion to dismiss

the claims against Commissioner Gross and to dismiss the FAC for

failure to state a claim. For the reasons that follow, that

motion will be allowed, in part, and denied, in part.

I. Background

Abubardar is a level three sex offender and was required to

register as such with the Boston Police Department pursuant to

M.G.L. c. 6, §§ 178C-178Q (“the Sex Offender Registration

Laws”). In October, 2018, Abubardar completed the required

annual registration forms and identified his primary address as

724 Shawmut Avenue in Roxbury, Massachusetts and his secondary

address as 9 Joseph Street in Dorchester, Massachusetts.

Plaintiff indicated that the latter address was temporary “due

to being shot in both legs.”

In March, 2019, defendant Henriquez applied for and

obtained a criminal complaint against Abubardar for failure to

register as a sex offender. The complaint noted that an address

audit conducted by detectives had led them to believe that

plaintiff failed to notify the Boston Police Department of a

change in his primary address. Notably, Henriquez neither

appended the registration forms to the complaint nor indicated

that Abubardar had provided two addresses on those forms.

Shortly thereafter, a warrant was issued for plaintiff’s

arrest and Abubardar was arrested on March 27, 2019. In

December, 2019, the government issued a nolle prosequi

indicating it would no longer prosecute the charge against

plaintiff because it was unable to meet its burden at trial.

Abubardar contends that he was residing at his secondary

address at the time of the address audit and that Henriquez and

other officers failed to investigate whether he was present at

that address. He alleges that he complied with the Sex Offender

Registration Laws and never abandoned the residence listed as

his primary address.

In the FAC, Abubardar asserts six counts against

defendants: false arrest in violation of 42 U.S.C. § 1983 and

Massachusetts law (Counts I and IV); malicious prosecution in

violation of 42 U.S.C. § 1983 and Massachusetts law (Counts II

and V); failure to investigate properly in violation of 42

U.S.C. § 1983 (Count III); and intentional infliction of

emotional distress (Count VI).

Defendants filed a motion to dismiss the FAC pursuant to

Fed. R. Civ. P. 12(b)(6) in September, 2020, which plaintiff

timely opposed.

II. Motion to Dismiss

As an initial matter, the parties have agreed to dismiss

Commissioner Gross from this action. Accordingly, all claims

against Commissioner Gross will be dismissed.

Henriquez contends that the FAC must be dismissed due to

Abubardar’s failure to state a claim upon which relief can be

granted. To the extent that plaintiff has stated plausible

claims, Henriquez asserts that he is entitled to qualified and

common law immunity from liability on all counts.

A. Legal Standard

To survive a motion under Fed. R. Civ. P. 12(b)(6), the

subject pleading must contain sufficient factual matter to state

a claim for relief that is actionable as a matter of law and

“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw

the reasonable inference that the defendant is liable for the

misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d

1, 12 (1st Cir. 2011).

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011). A court also may not disregard properly pled

factual allegations even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

relevant inquiry focuses on the reasonableness of the inference

of liability that the plaintiff is asking the court to draw. Id.

at 13.

B. Section 1983 Claims (Counts I-III)

To bring suit against a government official pursuant to 42

U.S.C. § 1983,

it is enough to show that the official, acting under color

of state law, caused the deprivation of a federal right.

Burke v. Town of Walpole, 405 F.3d 66, 76 (1st Cir. 2005).

Abubardar asserts that Henriquez violated his constitutional

rights under the Fourth and Fourteenth Amendments of the United

States Constitution by 1) causing his arrest without probable

cause, 2) causing the commencement of his criminal prosecution

without probable cause and 3) failing to investigate properly

the purported crime that led to his arrest and subsequent

prosecution.1

1 Although plaintiff brings his malicious prosecution claim under

both the Fourth and Fourteenth Amendments, it is actionable

under only the Fourth Amendment. See Calero-Colon v. Betancourt-

Lebron, 68 F.3d 1, 3 n.7 (1st Cir. 1995).

Henriquez submits that Abubardar’s constitutional rights

were not violated and, even if the allegations in the FAC are

sufficient to state a claim for such a violation, he is entitled

to qualified immunity because plaintiff’s claimed constitutional

rights were not clearly established.

To determine whether Henriquez is entitled to qualified

immunity, the Court must assess

(1) whether the facts alleged or shown by the plaintiff

make out a violation of a constitutional right; and (2) if

so, whether the right was ‘clearly established’ at the time

of the defendant’s alleged violation. . . . The second

prong, in turn, has two parts: (a) whether the legal

contours of the right in question were sufficiently clear

that a reasonable official would have understood that what

he was doing violated that right, and (b) whether the

particular factual violation in question would have been

clear to a reasonable official.

Díaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011) (internal

citations omitted).

At the motion to dismiss stage,

it is the defendant’s conduct as alleged in the complaint

that is scrutinized for ‘objective legal reasonableness.’

Higgins v. Town of Concord, 246 F. Supp. 3d 502, 516 (D. Mass.

2017) (emphasis in original) (quoting Behrens v. Pelletier, 516

U.S. 299, 309 (1996)). Because it is not always possible to

determine whether a defendant is entitled to qualified immunity

prior to discovery, courts often evaluate such a defense at the

summary judgment stage. Id. The rejection of a qualified

immunity defense at the motion to dismiss stage does not

preclude a party from reasserting the defense after further

factual development. Id.

1. Deprivation of a Constitutional Right

Determining whether Abubardar has stated plausible claims

for false arrest, malicious prosecution and failure to

investigate bears a close relationship to the first step of the

qualified immunity analysis. Accordingly, this Court will

analyze both at the same time.

Under the Fourth Amendment, an individual enjoys the right

to be free from unreasonable seizures, which means that an

arrest must be supported by probable cause. See Parks v. Town of

Leicester, No. 10-30120-FDS, 2012 U.S. Dist. LEXIS 78973, at *11

(D. Mass. June 7, 2012). That protection “does not end when an

arrestee becomes held pursuant to legal process” and therefore

extends to malicious prosecution following an unreasonable

seizure. See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 98-100

(1st Cir. 2013). To state a claim under § 1983 for malicious

prosecution, a plaintiff must allege that

the defendant (1) caused (2) a seizure of the plaintiff

pursuant to legal process unsupported by probable cause,

and (3) criminal proceedings terminated in plaintiff’s

favor.

Bertram v. Viglas, No. 19-11298-LTS, 2020 U.S. Dist. LEXIS

67323, at *13 (D. Mass. Apr. 16, 2020) (quoting Hernandez-

Cuevas, 723 F.3d at 101).

With respect to Count III, the First Circuit has recognized

that a duty to investigate may arise in certain circumstances

even when an officer has obtained facts that would otherwise be

sufficient to establish probable cause. See Chapman v. Finnegan,

950 F. Supp. 2d 285, 296 (D. Mass. 2013). To show that

Henriquez was obligated to conduct further inquiry under the

present circumstances, plaintiff must allege that the

information known to Henriquez gave him “an obvious reason to

doubt” that Abubardar had violated the Sex Offender Registration

Laws such that his failure to conduct an additional inquiry

“evinced a reckless disregard for the truth.” United States v.

Tanguay, 787 F.3d 44, 53-54 (1st Cir. 2015).

It is undisputed that the FAC contains allegations that

Henriquez caused Abubardar to be arrested and that criminal

proceedings terminated in plaintiff’s favor. Therefore, the

plausibility of all three federal claims turns on whether

Abubardar has sufficiently alleged that Henriquez lacked

probable cause for his arrest and subsequent prosecution.

A finding of probable cause by a magistrate judge may

violate the Fourth Amendment if the officer seeking the arrest

warrant made an “intentional or reckless omission of material

exculpatory facts” from the information presented to the

magistrate. Burke, 405 F.3d at 81 (1st Cir. 2005) (internal

quotation marks omitted). Recklessness may be inferred where

“the omitted information was critical to the probable cause

determination.” Id. at 82.

Henriquez contends that he had probable cause to believe

that Abubardar failed to provide notice of a change of address

in violation of M.G.L. c. 6, § 178H and that the existence of a

registered secondary address does not negate the evidence

supporting such probable cause.

Under the Sex Offender Registration Laws, sex offenders are

required to provide certain information to local officials

including their home address and any secondary addresses. See

Commonwealth v. Kateley, 461 Mass. 575, 576 (2012). Offenders

must also provide “notice of a change of address,” M.G.L. c. 6,

§ 178H, but are otherwise “free to live where they choose and to

move freely within and without the Commonwealth.” Doe v. Police

Comm’r of Boston, 460 Mass. 342, 347 (2011).

Henriquez assumes that Abubardar abandoned his primary

residence at 724 Shawmut Avenue but the allegations in the FAC,

which this Court accepts as true, contradict that assumption.

Plaintiff alleges that he executed the required registration

forms and otherwise complied with the Sex Offender Registration

Laws, including the requirement to provide notice of any change

of address, and that he was innocent of the misconduct with

which he was charged. He contends that he was residing at his

secondary address at the time Henriquez conducted the address

audit and asserts that he maintained 724 Shawmut Avenue as his

primary residence at all relevant times.

Based upon the allegations in the FAC, plaintiff makes a

compelling argument that Henriquez omitted key information that

may have affected the magistrate’s probable cause determination.

Henriquez does not mention the registered secondary address to

the magistrate judge or his failure to investigate that address

even though he was in possession of such pertinent information

that may well have exonerated plaintiff. As indicated above,

Abubardar was free to travel throughout the Commonwealth and the

fact that he was not residing at his primary address at the time

of the address audit is not proof that he violated the Sex

Offender Registration Laws.

Even if it were certain that Abubardar had unlawfully

failed to provide notice of a change of address, Henriquez still

lacked probable cause to arrest and prosecute plaintiff on other

theories of liability under M.G.L. c. 6, § 178H. The narrative

written by Henriquez in support of the criminal complaint

against Abubardar, which is provided verbatim in the FAC, states

that Abubardar was liable for all four kinds of criminal

liability under § 178H, including failure to register as a sex

offender in the first instance. Henriquez does not contend for

the purpose of the instant motion, however, that plaintiff

failed to register as a sex offender and Abubardar clearly

alleges that he executed the proper forms in October, 2018 and

that he complied with the Sex Offender Registration Laws.

Accordingly, it is evident that plaintiff has alleged that

Henriquez lacked probable cause to seek his arrest and

prosecution for at least some of the purported violations of §

178H and, therefore, Abubardar has stated claims under § 1983

for false arrest, malicious prosecution and failure to

investigate. As to the first prong of the qualified immunity

analysis, the facts alleged by plaintiff are sufficient to

determine, if proved, that Henriquez violated Abubardar’s Fourth

Amendment rights.

2. Clearly Established Law

The second prong of the qualified immunity analysis

“focuses on whether [an] officer had fair notice that [his]

conduct was unlawful.” Burke, 405 F.3d at 85 (internal citation

omitted). Henriquez contends that the Sex Offender Registration

Laws do not clearly define what it means to “fail[] to provide

notice of a change of address,” M.G.L. c. 6, § 178H, and that it

was reasonable for him to infer that plaintiff had violated the

statute by no longer residing at his primary address.

That argument addresses the second rather than the first

part of the clearly established analysis. First, this Court

finds that the legal contours of plaintiff’s Fourth Amendment

rights were clearly established at the time of his arrest in

March, 2019. The rule against arrests without probable cause is

well-established in this Circuit and elsewhere. See Santiago v.

Fenton, 891 F.2d 373, 383 (1st Cir. 1989) (citing Beck v. Ohio,

379 U.S. 89, 91 (1964)). The First Circuit expressly extended

the Fourth Amendment protection against seizure without probable

cause to malicious prosecution in 2013. See Hernandez-Cuevas,

723 F.3d at 98-100. Moreover, the duty to undertake further

investigation when faced with reason to doubt information

supporting probable cause has been established for nearly as

long. See Tanguay, 787 F.3d at 53-54. Accordingly, a reasonable

official would have understood that arresting and prosecuting an

individual without probable cause, or an investigation that may

vitiate probable cause, would be in violation of that

individual’s Fourth Amendment rights.

This Court also finds that the particular factual violation

in question would have been clear to a reasonable official.

Assuming arguendo that reasonable officials could dispute

whether Abubardar failed to provide notice of a change of

address, it is undisputed that he did register as a sex offender

even though Henriquez stated that he failed to do so when

applying for the criminal complaint. Because Henriquez was

allegedly in possession of Abubardar’s valid sex offender

registration forms, it would have been clear to a reasonable

official that seeking the arrest and prosecution of plaintiff

for all theories of liability under § 178H violated his rights

under the circumstances.

As plaintiff concedes, Henriquez may be able to assert a

successful qualified immunity defense after further facts are

uncovered by discovery. At this stage, however, Henriquez is

not entitled to qualified immunity and dismissal of plaintiff’s

§ 1983 claims is unwarranted.

C. State Law Claims (Counts IV-VI)

Henriquez also challenges the plausibility of Abubardar’s

state law claims and asserts that common law immunity applies to

shield him from liability.

1. Plausibility

Abubardar asserts three state law claims in the FAC for

false arrest, malicious prosecution and intentional infliction

of emotional distress.

Under Massachusetts law, false arrest consists of

(1) intentional and (2) unjustified (3) confinement of a

person, (4) directly or indirectly (5) of which the person

confined is conscious or is harmed by such confinement.

Viglas, 2020 U.S. Dist. LEXIS 67323, at *28. Although probable

cause is not an element of false arrest, it is required for the

arrest to be lawful. See Fenton, 891 F.2d at 383 (“[A]t the

foundation of all the claims [including false arrest] is the

necessity that the arrest be supported by probable cause.”).

Here, Abubardar alleges that Henriquez intentionally and

directly caused his arrest without probable cause and that the

arrest caused him physical and emotional distress. Such

allegations are clearly sufficient to state such a claim.

The elements of a state law claim for malicious prosecution

are identical to those of its federal analogue except that the

state claim requires that the plaintiff suffer damage and that

the defendant acted maliciously or for an improper purpose. See

Viglas, 2020 U.S. Dist. LEXIS 67323, at *29. As noted above,

Abubardar has stated a federal claim for malicious prosecution

and has alleged that Henriquez acted maliciously and caused him

physical and emotional injury. Accordingly, plaintiff’s

parallel state law claim is plausible.

Finally, in order to state a claim for intentional

infliction of emotional distress plaintiff must allege that the

defendant engaged in extreme and outrageous conduct without

privilege thereby causing plaintiff severe emotional distress.

Limone v. United States, 579 F.3d 79, 91 (1st Cir. 2009).

Conduct is extreme and outrageous only if it is

beyond all bounds of decency and . . . utterly intolerable

in a civilized community.

Sena v. Commonwealth, 417 Mass. 250, 263 (1994).

Here, the factual allegations in the FAC state a claim for

intentional infliction of emotional distress. Abubardar asserts

in the FAC that Henriquez’s actions caused him to suffer severe

emotional distress in the form of trauma, shock, anxiety,

humiliation, embarrassment and fear. His allegations that

Henriquez failed to investigate the secondary address prior to

seeking a criminal complaint permit a reasonable inference of

reckless or outrageous conduct.

As a result, the FAC will not be dismissed for failure to

state plausible claims under Massachusetts law.

2. Common Law Immunity

Under Massachusetts common law, a public official is not

liable for negligence or other error in the making of a

discretionary decision if the official acted in good faith and

without malice or corruption. Echavarria v. Roach, No. 16-cv-

11118, 2017 U.S. Dist. LEXIS 144589, at *43 (D. Mass. Sept. 7,

2017). Conversely, such immunity is not available where a

plaintiff alleges that the defendant acted with malice or

corruption. Id.

As with qualified immunity, the Court cannot conclude that

Henriquez is entitled to common law immunity from plaintiff’s

state law claims. Accepting the allegations in the FAC as true,

Abubardar clearly alleges that Henriquez acted maliciously and

that his conduct “either designed or reasonably anticipated to

harm” plaintiff.

Accordingly, dismissal of plaintiff’s state law claims is

inappropriate at this stage.

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 9) is, with respect to all counts against William

Gross, ALLOWED, but otherwise, DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated June 7, 2021