Choy v. Brockton

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 23-10340-RGS

FRANCES Y. CHOY

v.

CITY OF BROCKTON, ERIC CLARK,

RICHARD SCOTT WARMINGTON,

JOHN DUGGAN, JOHN E. DRUGAN,

SCOTT A. BERNA, MICHAEL J. CRISP,

And FRANK J. MIDDLETON, JR.

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTION TO DISMISS

May 24, 2023

STEARNS, D.J.

This action arises out the vacatur of the conviction of Frances Y. Choy

for arson and the murder of her parents and the discontinuation of further

prosecution. Choy now asserts that the City of Brockton, one of its detectives,

and several officers in the Massachusetts State Police (MSP) violated her

constitutional rights by, inter alia, fabricating inculpatory evidence and

destroying exculpatory evidence. Defendants Richard Scott Warmington,

John E. Drugan, Michael J. Crisp, and Frank Middleton, Jr., move to dismiss

claims against them pursuant to Fed. R. Civ. P. 12(b)(6). For the following

reasons, the court will allow the motion in part and deny it in part.

BACKGROUND

The facts, drawn from the Amended Complaint [Dkt # 44] and the

documents it incorporates by reference, and viewed in the light most

favorable to plaintiff as the nonmoving party, are as follows.1 In the early

morning hours of April 17, 2003, Choy’s nephew, Kenneth Choy (Kenneth),

intentionally set fire to the house in which he lived with Choy and her

parents. By the time the Brockton Fire Department responded to the scene,

Choy’s parents had sustained severe injuries. They died in a hospital later

that day.

An overwhelming amount of physical evidence linked Kenneth to the

crime. Investigators, for example, found two handwritten notes planning

how to set fire to the house in his bedroom, and a rolled towel was found

underneath his bedroom door. Kenneth also had a motive to set the fire, as

Choy’s father had recently reported Kenneth to the Brockton Police for

dealing drugs and her mother had accused Kenneth of stealing her jewelry.

Nonetheless, because an accelerant-detecting dog alerted to the pair of

1 Given the extent of the wrongdoing alleged in the Amended

Complaint, the court limits its recitation of facts to only those aspects of the

investigation that are relevant to the issues raised in defendants’ Motion to

Dismiss.

sweatpants Choy had been wearing at the time,2 investigators shifted their

focus to Choy. They did so despite knowing that accelerant-detecting dogs

can only alert investigators to the possible presence of flammable liquids and

that many harmless substances, such as nail polish remover, can also cause

a dog to alert.

Under the guise of having them reclaim personal property salvaged

from the fire, Warmington brought Kenneth and Choy to the Brockton Police

station the night of April 17, 2003. Warmington, Eric Clark, and John

Duggan proceeded to interrogate Choy for hours, ignoring her requests for a

lawyer. Even though the station was equipped with recording devices, Choy’s

interrogation was not recorded.3

Kenneth was interrogated separately from Choy. Although he denied

involvement at first, when confronted with his handwritten notes, he

admitted to setting the fire. Defendants told Kenneth that he could lessen

his blame if he said another person was involved. Kenneth then falsely

incriminated Choy, claiming that she was the one who had started the fire.

2 The dog did not alert to Kenneth’s clothing, but this was consistent

with information in Kenneth’s handwritten notes, which included the step of

changing his clothing after using the accelerant.

3 The following year, in an unrelated case, the Massachusetts Supreme

Judicial Court strongly encouraged police to record interrogations. See

Commonwealth v. DiGiambattista, 442 Mass. 423, 446-448 (2004).

Defendants then confronted Choy with Kenneth’s confession.

Eventually, after hours of pressure to confess, Choy stated, “[F]ine I planned

it!” Immediately thereafter, Choy recanted, telling officers that she was not

involved in planning the fire. Despite the retraction, she was escorted to the

booking area and handcuffed to a railing. Clark then asked Choy a series of

leading questions regarding how the crime allegedly occurred and she

responded yes to each question. Defendants fabricated a report of this

exchange, falsely suggesting that Choy had volunteered this information.

According to Warmington’s and Clark’s police reports, Choy again

admitted to setting the fire while she was being held outside the booking

area. This alleged confession was not reduced to writing, nor was it recorded.

The only account of the supposed confession was typed up days later in a

collaborative effort by Warmington, Clark, and Duggan.

On April 22, 2003, Warmington, or another officer working with him,

spoke with Drugan, the chemist assigned to handle laboratory testing of

Choy’s sweatpants. Drugan’s notes of this meeting falsely indicate that an

accelerant-detecting dog had detected the presence of gasoline residue on

Choy’s sweatpants. Drugan then spoke with Middleton, seeking approval to

perform a destructive test on Choy’s sweatpants. Even though standard

practice would have been to preserve a portion of the item for defense testing,

Middleton gave Drugan the requisite authorization.

The destructive test did not detect the presence of gasoline residue.

Instead, the results indicated the probable presence of a compound called

methyl salicylate, which is often found in commercially-available topical

analgesics.4 Drugan nonetheless reported that the Choy’s sweatpants had

tested positive for gasoline residue.

While Choy remained in jail, Warmington learned that Choy’s father

had reported Kenneth to the Brockton Police for dealing drugs in January of

2003. Warmington also learned that Kenneth had reportedly confessed to

setting the fire to a friend. Defendants did not disclose either of those

exculpatory events to Choy’s defense team until years after her conviction.

Additionally, in 2009, while Choy was incarcerated pending trial, and while

Kenneth was free, Choy’s house was set on fire two days in a row. Although

defendants reported the first fire to prosecutors (they failed to report the

second one), the occurrence of either fire was withheld from Choy’s defense

team.

4 Choy’s father had applied a pain-relieving ointment to her legs the

night of April 16, 2003, because her feet hurt from wearing high heels during

a shift at her part-time job.

Throughout this investigatory period, Warmington and other MSP

officers made numerous detailed reports to Crisp, a captain in the MSP,

about the state of the investigation and their actions. Crisp read these

reports carefully and closely monitored the case.

DISCUSSION

Qualified immunity is a judicial doctrine meant to shield public

officials performing discretionary functions “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.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Its purpose is to enable

public officials “to act without fear of retributive suits for damages except

when they should have understood that particular conduct was unlawful.”

Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).

“The First Circuit has adopted a two-part test to assess qualified

immunity.” Cosenza v. City of Worcester, 355 F. Supp. 3d 81, 94 (D. Mass.

2019). First, a court must decide “whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right.” Maldonado v.

Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). Second, a court must decide

“whether the right was ‘clearly established’ at the time of the defendant’s

alleged violation.” Id., quoting Pearson v. Callahan, 555 U.S. 223, 232

(2009). “Clearly established means that, at the time of the officer’s conduct,

the law was sufficiently clear that every reasonable official would understand

that what he is doing is unlawful.” District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018) (internal quotation marks and citation omitted).

I. Middleton

Middleton moves to dismiss Count I, which alleges that he “acted in

bad faith to destroy exculpatory evidence” when he authorized Drugan to

perform unnecessary destructive testing on Choy’s sweatpants “rather than

opting for preserving a portion of the item,” as was required by existing

investigatory standards. Am. Compl. ¶¶ 101, 153. He contends that the

Amended Complaint fails to plausibly establish that any constitutional

violation occurred because, at the time he approved use of the test, “he had

no way of knowing whether [it] would yield inculpatory, exculpatory, or

inconclusive evidence.” Mem. in Supp. of Mot. to Dismiss (Mem.) [Dkt # 48]

at 9. Alternatively, he maintains that, even if his conduct did violate Choy’s

constitutional rights, a reasonable official in his “position would have no

reason to believe conducting a [destructive] test would violate the

constitution.” Id. at 10.

The court finds these arguments unpersuasive. Uncertainty as to the

exculpatory value of destroyed evidence only bars a claim where a plaintiff

does not credibly allege bad faith. See Arizona v. Youngblood, 488 U.S. 51,

58 (1988) (“We therefore hold that unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.”); see also Magraw v.

Roden, 743 F.3d 1, 8 (1st Cir. 2014) (a criminal defendant may prevail on a

due process claim tied to evidence that is “merely potentially useful to the

defense” if “he establishes that the state acted in bad faith”). Because the

Amended Complaint indisputably does allege bad faith,5 and because

Middleton does not dispute that the bad faith destruction of potentially

useful evidence would clearly violate then-established law, a Youngblood

dismissal would be inappropriate at this stage of the proceeding.

II. Drugan

Drugan similarly moves to dismiss Count I, which, as asserted against

him, is premised on the alleged fabrication of a report that Choy’s sweatpants

had tested positive for the presence of gasoline residue. Drugan challenges

5 Middleton does not challenge the sufficiency of the allegation of bad

faith. But even if he did, viewing the facts in the light most favorable to

plaintiff, the court can reasonably infer that, having discussed the matter

with Drugan, Middleton authorized the destructive testing knowing that it

would enable Drugan to report that Choy’s sweatpants had tested positive for

gasoline residue, consistent with the alert of the accelerant-detecting dog,

even if no gasoline residue was present.

the sufficiency of the claim as pled, contending that the assertion of

fabrication is “conclusory and unsupported.” Mem. at 11.

Review of the allegations in the Amended Complaint belies the

suggestion that the pleading is inadequate. Choy pleads several concrete

facts in support of her claims, including that: (1) Drugan’s notes reflect the

presence of gasoline residue prior to any testing, even though an accelerant-

detecting dog can only alert officers as to the possible presence of a

flammable substance; (2) the results from the destructive test indicate “the

probable presence of a compound called methyl salicylate, which is often

included in commercially-available topical analgesics,” i.e., not any gasoline

residue, Am. Compl. ¶ 103; and (3) even though these test results did not

support the conclusion that gasoline residue was present, Drugan “falsely

reported that the sweatpants were positive for the presence of a ‘gasoline

residue,’” id. ¶ 102. To the extent Drugan seeks greater specificity, he applies

too strict a burden at the motion-to-dismiss stage, which merely requires

notice pleading.

III. Drugan and Warmington

Drugan and Warmington seek to dismiss Counts II, III, and IV as

asserted against them. Because they present identical arguments in favor of

dismissal, the court will address the claims ensemble.

a. Count II

Count II is a claim for malicious prosecution. It is premised on Drugan

and Warmington having fabricated evidence to prosecute Choy.

Sidestepping the first prong of the qualified immunity test, Drugan and

Warmington seek dismissal on the ground that the “constitutional right to

be free from malicious prosecution was not clearly established until” nearly

a decade after Choy’s arrest and prosecution. Mem. at 15.

While at least two other cases from this district have credited

defendants’ argument, see Schand v. City of Springfield, 380 F. Supp. 3d

106, 135 (D. Mass. 2019); Echavarria v. Roach, 2017 WL 3928270, at *8 (D.

Mass. Sept. 7, 2017), the court declines to do so here. The proper inquiry

under the second step of the test is whether the underlying right was clearly

established at the time of the alleged violation, not the cause of action itself.

See Cosenza, 355 F. Supp. 3d at 98; Davis v. Murphy, 2018 WL 1524532, at

*9 (D. Mass. Mar. 28, 2018); Russo v. City of Bridgeport, 479 F.3d 196, 212

(2d Cir. 2007). Drugan and Warmington cannot plausibly maintain that a

reasonable official would not have known that fabricating evidence to further

the prosecution of criminal defendant was unlawful in 2003, when Choy was

arrested. That the First Circuit did not explicitly6 identify the vehicle through

which to bring a malicious prosecution claim until 2013 does not change the

decades of law establishing that the illegality of “deliberately fabricating

evidence and framing individuals for crimes they did not commit.” See

Limone, 372 F.3d at 45; see also Hernandez-Cuevas v. Taylor, 723 F.3d 91,

100 (1st Cir. 2013). The court accordingly denies the motion to dismiss

Count II.

b. Count III

Count III is premised on Drugan’s and Warmington’s failure to

intercede on Choy’s behalf “to prevent her false arrest, malicious

prosecution, false imprisonment, and deprivation of liberty without due

process of law.” Am. Compl. ¶ 166. As with Count II, Drugan and

Warmington limit their challenge to the clearly established prong, arguing

that, “outside of the excessive force context, there was no ‘clearly established’

6 As noted in Davis, “Hernandez-Cuevas was not the groundbreaking

case [defendants] make[] it out to be.” 2018 WL 1524532, at *8. “It merely

[made] explicit what ha[d] long been implicit in our case law.” Hernandez-

Cuevas, 723 F.3d at 100; see also id. at 97 n.7 (“Though the question of

whether the Fourth Amendment provides substantive protection during the

pretrial period is a question of first impression in this circuit, it cannot be

seriously argued that an objectively reasonable officer in Martz and Taylor’s

position would have been ignorant of the fact that fabricating evidence was

constitutionally unacceptable.”).

authority in 2003 imposing a duty on law enforcement officers to intercede

if a constitutional violation occurs in their presence.” Mem. at 17.

In her opposition, Choy fails to identify any case law establishing or

even implying the existence of an affirmative duty to intervene with respect

to constitutional violations occurring outside of the excessive force context.

At best, she merely notes that the First Circuit has sometimes “described

actionable failure to intervene claims in terms that encompass a broad range

of constitutional rights.”7 Pl.’s Opp’n to Mot. to Dismiss [Dkt # 53] at 14. But

the fact that the First Circuit has used broad language that could be read to

extend beyond the excessive force context is not enough to find a duty to

intervene clearly established. Cf. Schand, 380 F. Supp. 3d at 135; Cosenza,

355 F. Supp. 3d at 100-101; Echavarria, 2017 WL 3928270, at *11. The court

accordingly allows the motion to dismiss Count III on qualified immunity

grounds.

c. Count IV

Count IV is premised on the existence of a civil conspiracy. Drugan

and Warmington move to dismiss the claim as insufficiently pled.

7 The cases cited by Choy for this proposition, however, either postdate

the alleged wrongdoing in this case, see Torres-Rivera v. O’Neill-Cancel, 406

F.3d 43 (1st Cir. 2005), or are contingent on (and thus do not themselves

establish) the existence of an affirmative “duty to act” to prevent the alleged

deprivation, see Clark v. Taylor, 710 F.2d 4, 9 (1st Cir. 1983).

As relevant here, civil conspiracy “derives from ‘concerted action,’

whereby liability is imposed on one individual for the tort of another.”

Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998), quoting Aetna Cas. Sur.

Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994). “Key to this cause

of action is a defendant’s substantial assistance, with the knowledge that

such assistance is contributing to a common tortious plan.” Kurker, 44

Mass. App. Ct. at 189. Here, Choy alleges that both Drugan and Warmington

fabricated evidence against her. She further alleges that, before Drugan

fabricated his report, Warmington (or someone connected to him) discussed

Choy’s alleged confession and the accelerant-detecting dog’s alert with

Drugan. As Drugan’s report is consistent with the information disclosed

during this meeting despite the existence of contrary test results, the court

can reasonably infer that the two engaged in concerted action to fabricate

evidence. It accordingly denies the motion to dismiss this claim.

IV. Crisp

Crisp moves to dismiss Count V, which seeks to hold him responsible

for Choy’s alleged wrongful detention under a theory of supervisory liability.

In the Section 1983 context, a finding of supervisory liability cannot be

premised on respondeat superior. See City of Canton v. Harris, 489 U.S.

378, 385 (1989). Instead, liability must derive from “the official’s own

individual actions,” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), “whether

through direct participation” in the alleged misconduct “or through conduct

that amounts to condonation or tacit authorization” of that conduct, Camilo-

Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999). While mere negligence is

not enough to create the requisite affirmative link to a plaintiff’s injury, a

supervisor who “lacks actual knowledge of censurable conduct . . . may be

liable for the foreseeable consequences of such conduct if he would have

known of it but for his deliberate indifference or willful blindness, and if he

had the power and authority to alleviate it.” Maldonado-Denis v. Castillo-

Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994)

Crisp mounts several attacks against the sufficiency of the Amended

Complaint, none of which carry the day at this early juncture. First, Crisp

argues that the Amended Complaint “fails to allege that any supervisory

relationship existed.” Mem. at 12. This contention is easily disposed of.

Choy pleads that the defendants in the MSP made reports “to” Crisp. Am.

Compl. ¶ 125. The court can reasonably infer the existence of a supervisory

relationship from this allegation.

Crisp next asserts that the Amended Complaint fails to plead that he

“received notice of an underlying constitutional violation.” Mem. at 13. The

court disagrees. Choy alleges that Crisp “received numerous, detailed

reports about the investigation and different MSP officer’s actions in the

case” and “closely monitored the investigation.” Am. Compl. ¶¶ 125, 128.

The court can reasonably infer that Crisp had at least constructive notice of

serious underlying constitutional violations if he was closely monitoring the

investigation and received reports of his subordinate’s actions. For example,

even assuming he was not aware that evidence was fabricated, he presumably

would have known (1) that an accelerant-detecting dog cannot determine

whether gasoline residue is present such that Drugan’s notes were

inaccurate; (2) that there was copious evidence of Kenneth Choy’s guilt

which was not disclosed to Choy’s defense team; (3) that Warmington failed

to record Choy’s interrogation or even reduce it to a written statement for her

review; and (4) that, under alleged department policy, Drugan should have

preserved a portion of Choy’s sweatpants for defense testing.

Crisp also challenges whether deliberate indifference and causation

have been adequately pled. But the court can, at this stage in the litigation,

reasonably infer deliberate indifference and causation from the seriousness

of the alleged underlying constitutional violations in this case and Crisp’s

failure to take any corrective action. See Guadalupe-Baez v. Pesquera, 819

F.3d 509, 515 (1st Cir. 2016) (“[A] plaintiff may, for example, prove causation

by showing inaction in the face of a ‘known history of widespread abuse

sufficient to alert a supervisor to ongoing violations.’”), quoting Maldonado-

Denis, 23 F.3d at 582; see also Justiniano v. Walker, 986 F.3d 11, 21 (1st Cir.

2021) (noting that, although separate requirements, causation and

deliberate indifference “are often intertwined in these cases”), quoting

Young v. City of Providence, 404 F.3d 4, 26 (1st Cir. 2005).

Crisp’s last argument, although framed in terms of the “clearly

established” step, essentially relitigates the adequacy of the pleading. No

matter how the question is presented, however, whether Crisp knew or

should have known of any pattern of constitutional violations committed by

his subordinates, or whether, as he argues, he reasonably believed that any

apparent violations were “isolated instances” of misconduct, Mem. at 15,

cannot be decided as a matter of law at the motion-to-dismiss stage of the

proceedings. The court will therefore withhold judgment on this issue until

a factual record is developed through the ordinary course of discovery.

ORDER

For the foregoing reasons, the motion to dismiss is ALLOWED IN

PART and DENIED IN PART. Count III is dismissed as to Drugan and

Warmington. All other claims survive this motion and shall proceed to

discovery.

SO ORDERED.

/s/ Richard G. Stearns___ _____

UNITED STATES DISTRICT JUDGE