Carr v. Town of Mashpee by its Board of Selectmen

United States District Court

District of Massachusetts

)

Timothy Carr, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 21-10658-NMG

Town of Mashpee by its Board of )

Selectman, et al., )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This action arises from the claim of plaintiff Timothy Carr

(“Carr” or “plaintiff”) that he was wrongfully charged with a

criminal offense in Falmouth District Court. The criminal

charge was dismissed but Carr filed a complaint in Massachusetts

Superior Court against the Town of Mashpee, its Chief of Police,

and unknown members of the Mashpee Police Department

(collectively, “defendants”). Defendants removed the action to

this Court pursuant to 28 U.S.C. § 1441(c). Pending before the

Court is defendants’ motion to dismiss for failure to state a

claim.

I. Background

In December, 2016, a criminal charge was filed against Carr

in Falmouth District Court pursuant to a complaint entered by

the Mashpee Police Department. Carr was charged with leaving

the scene of property damage, in violation of M.G.L. c. 90 §

24(2)(a). The origin of the charge was a report received by the

Mashpee Police Department that a vehicle had struck a tree and

stop sign. According to Carr’s complaint, however, the citizen

who reported the incident did not know the license plate number

of the relevant vehicle and the police officer who prepared the

report listed Carr’s license plate number based on the officer’s

independent information. Carr alleges that a warrant was

subsequently issued for his arrest but the criminal case was

dismissed by the Falmouth District Court in January, 2018 due to

“insufficient evidence”, at the request of the government.

Carr filed a complaint in Massachusetts Superior Court

against the defendants in January, 2021.1 In the complaint, Carr

asserted that the Mashpee Police Department did not

appropriately notify him of the pending charge or investigate

the charges. He submits that members of the Mashpee Police

Department know him personally and that he has had disagreements

with them in the past. Based on that purported animus, Carr

believes the criminal charge at issue here was intended to

harass and intimidate him. He alleges that, due to the criminal

1 The date listed on the original complaint is January 15,

2020 but the state court record indicates that it was actually

filed on January 15, 2021.

charge, he faced arrest, was forced to retain legal counsel and

to attend court hearings and suffered emotional distress.

In his complaint, Carr asserts four causes of action:

violation of the Massachusetts Tort Claims Act (Count I),

malicious prosecution (Count II), deprivation of his Fourth

Amendment constitutional rights in violation of 42 U.S.C. § 1983

(Count III), and intentional infliction of emotional distress

(Count IV). After removing the action to this Court pursuant to

28 U.S.C. § 1441(c) in May, 2021, defendants filed a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which plaintiff

timely opposed.

II. Motion to Dismiss

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

inquiry required focuses on the reasonableness of the inference

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

at 13. This assessment is holistic: “the 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-

Hernandez, 640 F.3d at 14.

B. Application

The Court first considers whether Carr has alleged facts

sufficient to withstand the pending motion to dismiss regarding

the alleged deprivation of his rights under the Fourth Amendment

to the United States Constitution in violation of 42 U.S.C. §

1983. That claim is the only federal cause of action alleged

and the only foundation for this Court’s original jurisdiction

in the pending case. See 28 U.S.C. § 1367(a).

1. Section 1983 Claim (Count III)

To maintain a suit against a government official pursuant

to § 1983, a plaintiff must 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). It is “the plaintiff's burden to identify the specific

constitutional right infringed.” Nieves v. McSweeney, 241 F.3d

46, 53 (1st Cir. 2001); see also Albright v. Oliver, 510 U.S.

266, 271 (1994). Here, Carr invokes the Fourth Amendment as the

basis for his claim. The Court assumes, arguendo, that the

Fourth Amendment may give rise to a malicious prosecution claim,

despite the long-standing uncertainty on this issue. See

Hernandez-Cuevas, 723 F.3d at 97 (1st Cir. 2013) (“Neither this

circuit nor the Supreme Court has ever explicitly determined

that the Fourth Amendment encompasses a malicious prosecution

claim.”).

The Fourth Amendment provides that:

[t]he right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated....

U.S. Const. amend. IV. The First Circuit has determined that a

claim for malicious prosecution grounded in this constitutional

provision must involve a seizure. See Nieves, 241 F.3d at 54. A

seizure occurs “[o]nly when the officer, by means of physical

force or show of authority, has in some way restrained the

liberty of a citizen....” Terry v. Ohio, 392 U.S. 1, 19 n.16

(1968).

In a malicious prosecution case brought under § 1983,

the constitutional violation lies in the deprivation

of liberty accompanying the prosecution rather than in

the prosecution itself.

Moreno-Medina v. Toledo, 458 F. App'x 4, 7–8 (1st Cir. 2012)

(quoting Britton v. Maloney, 196 F.3d 24, 28–29 (1st Cir.

1999). A plaintiff must therefore show some deprivation of

liberty that resembles a traditional Fourth Amendment seizure.

See Moreno-Medina, 458 F. App'x at 7–8. Courts have repeatedly

drawn a distinction between Fourth Amendment seizures and

“inevitable concomitants of the pendency of criminal charges

that, if allowed as the basis for a 1983 claim would trivialize

the statute.” Harrington v. City of Nashua, 610 F.3d 24, 32–33

(1st Cir. 2010).

Although Carr’s complaint does not articulate the precise

contours of the Fourth Amendment violation alleged, piecing

together the factual allegations, plaintiff suggests that he was

seized because he: (1) faced arrest, (2) was forced to retain

legal counsel, (3) was required to attend court hearings and (4)

consequently endured emotional distress. Case law, however,

clearly suggests that such circumstances do not provide a

sufficient foundation for a Fourth Amendment claim. In Moreno-

Medina, 458 F. App'x at 7–8, for example, the First Circuit

Court of Appeals found that the requirements that the defendant

attend court proceedings, notify the court of a change in

address, or refrain from committing further crimes did not

constitute a deprivation of liberty under the Fourth Amendment

because limitations resulting directly from prosecution are

insufficient for these purposes. See also Harrington, 610 F.3d

at 32-33 (explaining standard conditions of pretrial release do

not rise to level of Fourth Amendment seizure); Nieves, 241 F.3d

at 55 (same); Wellines, 1999 WL 33117076, at *4 (declining to

find that hiring attorney sufficient to establish malicious

prosecution claim under the Fourth Amendment). The plaintiff

has alleged none of the more stringent pre-trial restrictions,

such as constraints upon the right to travel, that other courts

have found to establish Fourth Amendment seizures. See

Harrington, 610 F.3d at 32; Wilson v. Fairhaven, No. CV 18-

11099-PBS, 2021 WL 1387778, at *21-22 (D. Mass. Mar. 8, 2021).

Any attempt to ground a Fourth Amendment seizure in emotional

distress resulting from prosecution is “equally shopworn.”

Nieves, 241 F.3d at 54–55; Watson v. Mita, 396 F. Supp. 3d 220,

225 (D. Mass. 2019).

Mr. Carr’s assertion that an arrest warrant is sufficient

for these purposes seems to be based upon a misreading of the

applicable precedent. He cites Nieves for this proposition but,

in that case, the First Circuit Court of Appeals clearly

articulated that it is an arrest, rather than an arrest warrant,

that constitutes a Fourth Amendment seizure. 241 F.3d at 54

(“Generally, the offending legal process comes either in the

form of an arrest warrant (in which case the arrest would

constitute the seizure) or a subsequent charging document (in

which case the sum of post-arraignment deprivations would

comprise the seizure).”); see also Singer v. Fulton Cty.

Sheriff, 63 F.3d 110, 117 (2d Cir. 1995) (“the arrest itself may

constitute the seizure”). The Court has found no case law that

supports the suggestion that the issuance of an arrest warrant

alone can satisfy the requirement and the plaintiff has cited

none. Moreover, such a conclusion is impossible to reconcile

with the requirement that a seizure necessarily involves “the

application of force”. Torres v. Madrid, 141 S. Ct. 989, 999

(2021).

2. State Law Claims (Counts I, II, IV)

A court may decline to exercise supplemental jurisdiction

when it has dismissed all claims over which it has original

jurisdiction. See 28 U.S.C. § 1367(c)(3); Kolari v. New York–

Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006). In so

doing, “a district court must exercise informed discretion”

based upon “concerns of comity, judicial economy, convenience

and fairness.” Santana-Vargas v. Banco Santander Puerto Rico,

948 F.3d 57, 61 (2020) (quoting Redondo Const. Corp. v.

Izquierdo, 662 F.3d 42, 49 (2011)).

[I]n the usual case in which all federal-law claims

are eliminated before trial, the balance of factors to

be considered under the pendent jurisdiction

doctrine...will point toward declining to exercise

jurisdiction over the remaining state-law claims.

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988);

see also Masso-Torrellas v. Municipality of Toa Alta, 845 F.3d

461, 469 (1st Cir. 2017).

The instant litigation remains in its “nascent stages.”

Santana-Vargas v. Banco Santander Puerto Rico, 948 F.3d 57, 62

(quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249,

257 (1st Cir. 1996)). Service was made in April, 2021 and

defendants filed a notice of removal and a motion to dismiss

shortly thereafter. Apparently, no discovery has taken place.

The Court will therefore decline to adjudicate plaintiff’s state

law claims.

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 6) is, with respect to Count III, ALLOWED and that

count is DISMISSED WITH PREJUDICE. Counts I, II and IV are

remanded to state court.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated December 7, 2021