Aaron v. City of Lowell

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

PAUL AARON, *

*

Plaintiff, *

*

v. * Civil Action No. 20-cv-11604-ADB

*

CITY OF LOWELL, et al., *

*

Defendants. *

MEMORANDUM AND ORDER

BURROUGHS, D.J.

Plaintiff Paul Aaron (“Plaintiff”) initiated this action by filing a pro se, civil rights

complaint seeking damages for, among other things, the alleged violation his constitutional rights

during his 2018 arrest and subsequent prosecution. In response to a Court order, Plaintiff filed a

second amended complaint naming as defendants the City of Lowell (“City”), five Lowell police

officers and an individual now identified as a DEA Task Force member.

Now before the Court are Defendants Nickolas Dokos (“Dokos”), David Lavoie

(“Lavoie”), and Rafael Rivera’s (“Rivera”) second motion [ECF No. 65] to dismiss; the City’s

second motion [ECF No. 77] to dismiss; Defendants David Desmarais (“Desmarais”) and

Mathew Penrose’s (“Penrose”) motion [ECF No. 87] to dismiss; and Defendant Francisco

Vicente’s (“Vicente”) motion [ECF No. 89] to dismiss.

In addition, counsel for Plaintiff entered a notice of appearance and moved [ECF No. 91]

for leave to file a third amended complaint. Plaintiff’s counsel also opposed all four motions to

dismiss, see [ECF Nos. 85, 93] and the City opposed Plaintiff’s motion for leave to file a third

amended complaint [ECF No. 95].

For the reasons set forth below, the City’s motion to dismiss, [ECF No. 77] is granted, the

remaining Defendants’ motions, [ECF Nos. 65, 87, 89] are denied and Plaintiff’s motion for

leave to amend, [ECF No. 91], is granted.

I. RELEVANT BACKGROUND

Plaintiff initiated this pro se action on August 27, 2020, while in custody at FCI-Danbury

in Connecticut. [ECF No. 1]. On September 16, 2020, he filed an amended complaint and on

February 5, 2021, the Court granted Plaintiff leave to proceed in forma pauperis and to file a

second amended complaint which he filed on March 8, 2021. [ECF Nos. 4, 14, 18].

By Memorandum and Order dated May 4, 2021, the Court directed the clerk to issue

summonses for the City and the individual defendants (Vicente, Rivera, Desmarais, Penrose,

Dokos, and Lavoie.) [ECF No. 19]. The Court stated that a summons would not issue for the

John Doe defendant and that Plaintiff could amend to substitute the correct party once his true

name was discovered. [Id.] The Court granted Plaintiff permission to elect to have service made

by the United States Marshals Service (USMS) within 90 days of the issuance of the summons.

[Id.]

Accordingly, on May 4, 2021, almost nine months after Plaintiff initiated this action, the

clerk issued summonses for service of the named defendants by the USMS. [ECF No. 21]. After

Plaintiff completed service of process forms for the USMS, dated July 30, 2021, a Deputy United

States Marshal (“DUSM”) served Rivera, Penrose, Dokos, Desmarais, Lavoie, and the City on

August 13, 2021. [ECF Nos. 23-28]. As to the individual defendants, the DUSM checked a box

on the Process Receipt and Return (“receipt”) indicating that he had personally served someone

named “Officer Colon” with the summonses for them. [ECF Nos. 23-27]. For the City, the

DUSM checked a box on the receipt indicating that Clerk Michael Geary had been served. [ECF

No. 28]. The USMS filed these receipts with the Court on September 2, 2021. [ECF Nos. 23-

27]. Finally, with regard to Vicente, a receipt was filed by the USMS indicating that Lt. Bryan

Trask was served at the New Hampshire State Police Barracks in Concord, New Hampshire on

August 23, 2021. [ECF No. 38].

The seven defendants subsequently filed motions to dismiss for improper service. [ECF

Nos. 31, 45, 49, 53]. By Memorandum and Order dated March 3, 2022, the Court recognized

that although Plaintiff submitted his request to the USMS within the 90-day time period allowed

by the court in its May 4, 2021 Memorandum and Order, the DUSM failed to effectuate service

within that time period. [ECF No 57]. The Court therefore granted in part the defendants’

motions to dismiss, but also afforded Plaintiff additional time to accomplish service on the

defendants.1

On June 21, 2022, Plaintiff filed notice through counsel of intent to amend his complaint

a third time, [ECF No. 86], and opposed the two then second motions to dismiss filed by the

City, Dokos, Lavoie, and Rivera, [ECF No. 85]. The notice states, among other things, that

recently retained counsel planned to submit a third amended complaint on or before June 30,

2022, [ECF No. 86]. The following day, on June 22, 2022, Defendants Desmarais, Penrose and

1 “[T]he First Circuit has held that a pro se plaintiff proceeding in forma pauperis shows good

cause when the Marshals fail to meet their obligations.” Boyd v. Rue, Civil Action No. 09-10588-

MLW, 2010 WL 3824106, at *1 (D. Mass. Sept. 27, 2010) (emphasis omitted). “So long as a

plaintiff ‘provides the information necessary to identify the defendant, courts have uniformly

held that the Marshals’ failure to effect service automatically constitutes good cause within the

meaning of Rule 4(m).” Id. (quoting Ruddock v. Reno, 104 F. App’x 204, 206-07 (2d Cir. 2004)

(unpublished)). In fact, the Advisory Committee specifically notes that reliance on a marshal to

make service is an exceptional circumstance where a court would be justified in granting an

extension even without a showing of good cause. Evans v. Staples, Inc., No. 18-40104-TSH, 375

F.Supp.3d 117, 122 (D. Mass. 2019) (citing Fed. R. Civ. P. 4(m) advisory committee’s note to

2015 amendment (“Shortening the presumptive time for service will increase the frequency of

occasions to extend time. More time may be needed, for example, when ... a marshal is to make

service in an in forma pauperis action.”)). See 03/03/2022 Memo & Order, ECF No. 57.

Vicente filed motions to dismiss with supporting memoranda. [ECF Nos. 87 – 90]. On June 30,

2022, Plaintiff filed his motion for leave to amend accompanied by an amended complaint,

[ECF Nos. 91, 92], and on July 4, 2022, he opposed the motions to dismiss filed by Defendants

Desmarais, Penrose and Vicente, [ECF No. 93].

The City opposes Plaintiff’s motion to amend, [ECF No. 95], arguing unfair prejudice,

failure to file a memorandum in support as required by L.R. 7.1(b)(1) and that Plaintiff’s

proposed amended complaint, like the earlier complaints, would be subject to dismissal for

failure to state a claim against the City.

II. DISCUSSION

A. 42 U.S.C. § 1983 Count Against the City of Lowell

The City argues that Plaintiff’s § 1983 claim against it must be dismissed because he has

failed to state a claim for municipal liability. [ECF No. 77].

“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory,”

but § 1983 does impose “liability on a government that, under color of some official policy,

‘causes’ an employee to violate another’s constitutional rights.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 691–92 (1978). “The alleged municipal action at issue must constitute a ‘policy or

custom’ attributable to the City.” Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 26

(1st Cir. 2005). The actions of individual law enforcement officers are insufficient to establish

the existence of an official policy. See Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir. 2008)

(“[L]iability may not be imposed on a municipality for a single instance of misconduct by an

official lacking final policymaking authority.” (citing Oklahoma City v. Tuttle, 471 U.S. 808,

823–24 (1985))). Here, Plaintiff grounds his municipal liability claim on the execution of a

municipal custom, see Pembaur v. City of Cincinnati, 475 U.S. 469, 481 n.10 (1986), alleging

that the City had a custom of inadequately training its police department, specifically in

preparing accurate reports. [SAC at 18; TAC ¶ 88–93].

There are two requirements to prove a § 1983 claim based on a municipal custom. First,

the custom “must be attributable to the municipality” such that it is “so well settled and

widespread that the policymaking officials of the municipality can be said to have either actual

or constructive knowledge of it yet did nothing to end the practice.” Whitfield v. Melendez-

Rivera, 431 F.3d 1, 13 (1st Cir. 2005) (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st

Cir. 1989) ). “Second, the custom must have been the cause of and ‘the moving force behind’

the constitutional violation.” Id. (quoting Bordanaro, 871 F.2d at 1156).

A municipality’s failure to train its employees can be an actionable custom under § 1983,

see City of Canton v. Harris, 489 U.S. 378, 388–90 (1989), but “[a] municipality's culpability for

a deprivation of rights is at its most tenuous where a claim turns on a failure to train[,]” Connick

v. Thompson, 563 U.S. 51, 61, and “[t]riggering municipal liability on a claim of failure to train

requires a showing that municipal decisionmakers either knew or should have known that

training was inadequate but nonetheless exhibited deliberate indifference to the unconstitutional

effects of those inadequacies[,]” Haley v. City of Bos., 657 F.3d 39, 52 (1st Cir. 2011) (citations

omitted).

In the instant case, Plaintiff has not pleaded any facts that suggest municipal

decisionmakers either knew or should have known that the training of officers was inadequate, or

that the City’s failure to train led to the asserted constitutional deprivation.

First, Plaintiff has not adequately pled the requisite pattern of conduct required to

establish a custom. A single alleged incident of a constitutional deprivation “is insufficient, in

and of itself, to establish a municipal ‘custom or usage’ within the meaning of Monell.” Mahan

v. Plymouth Cty. House of Corr., 64 F.3d 14, 16–17 (1st Cir. 1995). Evidence of “multiple

incidents of misconduct” that suggest a “systemic pattern of activity[],” however, may support an

inference of a municipal custom. See Town of Wayland, 179 F. Supp. 3d at 172–73 (citing

Kibbe v. City of Springfield, 777 F.2d 801 (1985); Baron v. Suffolk Cty. Sheriff’s Dep't, 402

F.3d 225 (2005). Plaintiff’s claim against the City relies largely on the actions of the individual

Defendants involved with his case. The only additional facts Plaintiff offers, in an attempt to

suggest a pattern, are the facts that Defendants’ supervisor in this case did not subsequently

condemn the manner in which the Defendants in this case prepared the report, [SAC at 18; ECF

No. 85 at 7], and that certain Defendants in this case had previous misconduct allegations against

them, [ECF No. 85 at 2]. Neither fact, however, is sufficient to support a “system pattern of

activity,” especially where Plaintiff has not represented that the previous misconduct allegations

involved the fraudulent preparation of reports, and he has not otherwise alleged a connection

between these incidents or tied them to the purported failure to train.

Instead, Plaintiff suggests that the fact of the violation alone is enough to surmise a

failure to train on the part of the City, [SAC at 18], but allowing for such inference would moot

the pleading requirements of a Monell claim. See Doe1 v. Bos. Pub. Sch., No. 17-cv-11653,

2018 WL 3336535, at *5 (D. Mass. 2018). Without more than just conclusory allegations about

a City custom, the Court cannot reasonably infer that the City (1) knew or should have known

that its training for officers in this regard was deficient, (2) was deliberately indifferent towards

that deficiency, and (3) that this indifference caused the fraudulent preparation of reports by the

individual Defendants involved in Plaintiff’s case.

Perhaps acknowledging the thin support for the existence of a pattern, Plaintiff seems to

argue in his opposition to the City’s motion that this case falls into the “narrow range of

circumstances” hypothesized by the Supreme Court in Canton that allow for the inference of a

municipal custom based on single incidents, [ECF No. 85 at 3–4], but Plaintiff has not explained

how failure to adequately train officers on the preparation of reports falls within this narrow

range, nor has he identified any case that has extended Canton in such a manner. Cf. Cosenza v.

City of Worcester, Massachusetts, No. 18-cv-10936, 2021 WL 5138493, at *9 (D. Mass. Nov. 4,

2021) (declining to extend Canton’s hypothetical “single-incident” municipality liability to a

claim asserting a failure to train officers on how to conduct photo arrays).

Accordingly, the City’s motion to dismiss, [ECF No. 77], is GRANTED.

B. Defendants Desmarais and Penrose’s Motion to Dismiss for Insufficient

Service

Defendants Desmarais and Penrose contend that service was improper because the

summonses and SAC were left with Officer DeAngelo at the Lowell Police Station. As noted in

the Court’s March 3, 2022 Memorandum and Order, [ECF No. 57] and above, the USMS’ failure

to effectuate service within the 90-day time period ordered by the Court constitutes good cause

within the meaning of Rule 4(m), and, therefore, the Court will afford Plaintiff additional time to

accomplish service on these defendants. Accordingly, Desmarais and Penrose’s motion [ECF

No. 87] to dismiss for insufficient service is DENIED.

C. Defendants Dokos, Lavoie and Rivera Move to Dismiss this Action as Time

Barred

Defendants Dokos, Lavoie and Rivera no longer challenge service, but now argue, among

other things, that Plaintiff’s § 1983 claims against them must be dismissed as time barred

because he filed this action one day late. [ECF Nos. 65, 66]. For the reasons that follow,

Defendants have failed to demonstrate that Plaintiff’s claims are time barred.

Section 1983, which provides a “private right of action for violations of federally

protected rights,” contains no specific statute of limitations. Vistamar, Inc. v. Fagundo-Fagundo,

430 F.3d 66, 69 (1st Cir. 2005). Courts therefore borrow the most appropriate state statute of

limitations, typically a general personal injury statute, as long as the statute is not inconsistent

with federal law or policy. See Poy v. Boutselis, 352 F.3d 479, 483 (1st Cir. 2003); accord

Wilson v. Garcia, 471 U.S. 261, 280 (1985) (section 1983 action ordinarily characterized as

personal injury action for limitation purposes).

In Massachusetts, the statute of limitations for personal injuries is three years from the date

the cause of action accrues. Mass. Gen. L. ch. 260, § 2A. Section 2A states that the “action shall

be commenced only within three years next after the cause of action accrues.” Ordinarily, to

commence an action means to file a complaint with the court. See Fed. R. Civ. P. 3; McIntosh v.

Antonino, 71 F.3d 29, 36 (1st Cir. 1995). Where appropriate, however, the mailbox rule applies

to incarcerated pro se plaintiffs. See Houston v. Lack, 487 U.S. 266, 275 (1988); Casanova v.

Dubois, 304 F.3d 75, 79 (1st Cir. 2002). Under the mailbox rule, “the filing date for purposes of

assessing compliance with the statute of limitations will be the date on which the prisoner

commits the mail to the custody of prison authorities.” Id., 304 F.3d at 79. The original

complaint is dated August 21, 2020.2 This court assumes that Plaintiff placed his complaint in

FCI Danbury’s internal mail system on August 21,2020, the date of the complaint’s certificate of

service. Torres v. Irvin, 33 F. Supp. 2d 257, 270 (S.D.N.Y. 1998) (“[a]bsent evidence to the

contrary, the court assumes that [the prisoner] gave his petition to prison officials for mailing on

the date he signed it”).

2 The certificate of service states that Plaintiff mailed the complaint on August 21, 2020. See

[ECF No. 1 at p. 4].

Thus, the filing date for purposes of the statute of limitations for the original complaint is

August 21, 2020. Using the date of the certificate of service for the complaint (August 21,

2020), under the mailbox rule, Aaron filed his complaint before the expiration of the three-year

limitation period.

Accordingly, Defendants Dokos, Lavoie and Rivera’s motion [ECF No. 65] to dismiss the

complaint as time-barred is DENIED.

D. Plaintiff will be Permitted to File his Third Amended Complaint

Federal Rule of Civil Procedure Rule 15 allows courts to “freely give leave [to amend]

when justice so requires.” However, “‘parties seeking the benefit of ... [Rule 15(a)’s] liberality

[must] exercise due diligence; unseemly delay, in combination with other factors, may warrant

denial of a suggested amendment.’” Walton v. Nalco Chem. Co., 272 F.3d 13, 19 (1st Cir. 2001)

(quoting Quaker State Oil Ref. Corp. v. Garrity Oil Co., Inc. 844 F.2d 1510, 1517 (1st Cir.

1989)). Where, as here, the Plaintiff has been proceeding pro se, courts “endeavor, within

reasonable limits, to guard against the loss of pro se claims due to technical defects.” Rodi v. S.

New Eng. Sch. of Law, 389 F.3d 5, 20 (1st Cir. 2004). The proposed counseled third amended

complaint, [ECF No. 92], names the same defendants and pleads the same nine counts as the

earlier operative pro se complaint. In the motion, Plaintiff states that the instant action was

initiated while he “was in the custody of the government [and that Plaintiff] did the best he could

under the circumstances to file a well pled complaint after struggling to find legal representation

while he was incarcerated.” [ECF No. 91]. Plaintiff further states that the “[Third] Amended

Complaint seeks to better organize the facts pled in [the earlier pro se complaint].” [Id.].

The only Defendant to oppose the motion to amend is the City. [ECF no. 95]. Given

that the City is being dismissed, the lack of formal objection to an amended complaint by the

remaining Defendants and the benefits of working with a clearer complaint, the Court grants the

motion to amend. In its opposition, the City notes that Plaintiff failed to file an accompanying

memorandum of law in support of his motion to amend the complaint as required by this Court’s

local rules. The Court will not deny the motion on this basis, but cautions counsel that the Local

Rules should be followed going forward.

E. The Remaining Motions to Dismiss Will Be Denied as Moot

Without deciding whether the factual allegations in Plaintiff’s Third Amended Complaint

fail to state a claim upon which relief can be granted or whether the Defendants are entitled to

qualified immunity, the Court finds that it would be most efficient to DENY the remaining

portions of the pending motions as moot and allow any defendant to refile a motion in response

to the Third Amended Complaint.

III. CONCLUSION

Accordingly:

1. The Court DENIES Defendants Dokos, Lavoie and Rivera’s second Motion [ECF

No. 65] to dismiss this action as untimely; and DENIES AS MOOT the remainder of the motion

with leave to renew;

2. Defendant City ’s second Motion to Dismiss [ECF No. 77] is GRANTED;

3. Defendants Desmarais and Penrose’s Motion to Dismiss [ECF No. 87] is

DENIED as to insufficient process and otherwise DENIED AS MOOT with leave to renew;

4. Defendant Vicente’s Motion to Dismiss [ECF No. 89] is DENIED AS MOOT

with leave to renew;

5. Plaintiff’s Motion for Leave to File an Amended Complaint [ECF No. 91] is

GRANTED.

6. The Clerk shall re-issue summonses for service of (1) Daniel Desmarais and (2)

Matthew Penrose; and the Plaintiff shall serve the summons, the Third Amended Complaint, and

this Order in accordance with Rule 4 of the Federal Rules of Civil Procedure. Because Plaintiff

is proceeding in forma pauperis, he may elect to have the USMS complete service with all costs

of service to be advanced by the United States. If so asked by the Plaintiff, the USMS shall

serve copies of the summons, Third Amended Complaint, and this Order upon defendants as

directed by plaintiff. The Plaintiff is responsible for providing the USMS all copies for service

and for completing a USM-285 form for each party to be served.

7. The Clerk shall provide Plaintiff with forms and instructions for service by the

USMS.

8. The Plaintiff shall have 90 days from the date of the reissuance of the summons to

complete service on Defendants Desmarais and Penrose.

SO ORDERED.

July 26, 2022 /s/ Alliston D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE