Galego v. City of Fall River

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LAWRENCE GALEGO,

Plaintiff,

v. CIVIL ACTION NO. 22-12243-MPK1

CITY OF FALL RIVER,

ALBERT F. DUPERE, ATHANASIOS PAROUSIS,

RAUL CAMARA, MATTHEW REZENDES,

JASON FOURNIER, PAUL FURTADO,

KEVIN LOPES, NICHOLAS SOULE,

BRETT KIMBALL, ANTHONY GOFF,

DAVID SOULIERE, SCOTT BOYER,

FALL RIVER POLICE DEPARTMENT,

Defendants.

MEMORANDUM AND ORDER

ON DEFENDANTS’ MOTIONS TO DISMISS

KELLEY, U.S.M.J.

I. Introduction.

Lawrence Galego seeks damages for injuries sustained during a violent encounter with Fall

River police officers. Officers responded to plaintiff’s apartment building after dispatchers

received what plaintiff implies was a “swatting” call, that is, a fake report of an incident. According

to plaintiff, officers were informed by dispatchers that the call was for an incident on the first floor,

1 The parties have consented to proceeding before a United States Magistrate Judge for all

purposes, including trial and entry of final judgment, pursuant to 28 U.S.C. § 636(c). (#49.)

yet they went to the third floor, where they knocked on plaintiff’s door. When plaintiff opened the

door, one or more officers immediately hit him in the face with a hard object; forced him to the

ground; repeatedly struck his body, apparently with a firearm; and held him down, apparently at

gunpoint. Officers also searched his apartment. (#1.)

In addition to the City of Fall River (“the City”) and Police Chief Alfred Dupere, the

complaint names twelve dispatchers and responding officers as defendants.2 Defendants have filed

motions to dismiss under Fed. R. Civ. P. 12(b)(6). Briefing is complete.

For the reasons set forth below, the City’s motion (#30) is ALLOWED in part and DENIED

in part. Dupere’s motion (#23) is ALLOWED. The dispatchers and responding officers’ motions

(##26, 32) are ALLOWED in part and DENIED in part.

II. Standard of Review.

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is 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 has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a “probability requirement,” but it asks for

more than a sheer possibility that a defendant has acted unlawfully. . . . Where a

complaint pleads facts that are “merely consistent with” a defendant’s liability, it

“stops short of the line between possibility and plausibility. . . .”

2 The complaint also names the Fall River Police Department (“FRPD”) as a defendant. (#1 ¶ 4.)

A police department is not a proper party separate from the municipality, so the court treats the

claims against the FRPD as claims against the City. See Alves v. City of Gloucester, #18-cv-10654-

MPK, 2019 WL 267462, at *7 (D. Mass. Jan. 18, 2019).

Id. (quoting Twombly, 550 U.S. at 556-557).

In deciding a Rule 12(b)(6) motion, the court “accept[s] as true the complaint’s well-

pleaded factual allegations and draw[s] all reasonable inferences in favor of the” plaintiff, but it

“do[es] not credit conclusory legal allegations or factual allegations that are too meager, vague, or

conclusory to remove the possibility of relief from the realm of mere conjecture.” Douglas v.

Hirshon, 63 F.4th 49, 55 (1st Cir. 2023) (cleaned up) (citations omitted); see Justiniano v. Walker,

986 F.3d 11, 19 (1st Cir. 2021); Parker v. Landry, 935 F.3d 9, 13-14 (1st Cir. 2019); see also Iqbal,

556 U.S. at 678; Twombly, 550 U.S. at 555.

III. The Factual Allegations.

The complaint is poorly drafted. For instance, it lists defendants Stacy Aguiar,3 Anthony

Goff, Scott Boyer, and David Souliere as dispatchers in one paragraph, see #1 ¶ 19, but adds

defendant Kevin Lopes as a dispatcher in another, see id. ¶ 27. The complaint describes Lopes in

the same terms as the other dispatchers (“an officer and or dispatcher/call taker of the FRPD”) and

also in different terms than the responding officers (“an officer of the FRPD”), see id. ¶¶ 6-17, yet

identifies Lopes as a responding officer, see id. ¶ 22.4 A claim of assault and battery is not raised

against Lopes, although it is raised against the other responding officers. Id. at 6. Aguiar,

meanwhile, is identified as a dispatcher multiple times, see id. ¶¶ 13, 19, 22, 27, yet the complaint

arguably raises a claim of assault and battery against her. Id. at ¶ 43.5 Counsel for Lopes refers to

3 Aguiar has since been voluntarily dismissed without prejudice from this action. (##46-48.)

4 The other identified responding officers are defendants Raul Camara, Matthew Rezendes, Jason

Fournier, Paul Furtado, Anthanosios Parousis, Brett Kimball, and Nicholas Soule. Id.

5 The caption of Count I reads: “Plaintiff v. Parousis, Camara, Rezendes, Fournier, Furtado, Soule,

and Kimball.” Id. at 6. Paragraph 43 reads: “The actions of Parousis, Camara, Rezendes, Fournier,

Furtado, Soule, Aguiar, and Kimball committed upon the Plaintiff constituted and [sic] assault and

battery upon the Plaintiff.” Id. ¶ 43.

him as a “public safety” dispatcher, see #32 at 1, and notes that he has been identified in the

complaint as both a dispatcher and responding officer. (#33 at 2-3 & n.1.) Plaintiff has done

nothing to clarify the confusion. Rather, counsel asserts that the assault and battery count has been

raised against the dispatchers and responding officers, see #36 at 1; see also #25 at 1, #34 at 1,

when that count has only been raised against the responding officers and perhaps also against

Aguiar.6

In addition, the complaint refers to an assault and battery “at the police station,” see #1 ¶

67; to a duty of care on “applications for criminal complaints,” see id. ¶ 47; and to plaintiff as “the

Defendant,” see id. ¶ 48. But no allegations suggest that plaintiff was ever brought to the police

station or charged criminally. To the contrary, as set forth in the complaint, an officer apologized

to plaintiff, admitting that the responding officers had gone to the wrong address, and plaintiff

showered, requested an ambulance, and was brought to a hospital. Id. ¶¶ 32-33. Defense counsel

note the confusion, see #24 at 11 n.2, #27 at 13 n.3, #33 at 10; again, plaintiff’s counsel has done

nothing to clarify.

Further, while the complaint implies that the call leading to the dispatch and response was

fake, it does not explicitly say so. The complaint refers to the reported incident as “allegedly”

occurring on the first floor, see #1 ¶ 27; defines the term “swatting,” see id. ¶ 30; and asserts that

the dispatchers and responding officers knew or should have known that term, see id. But the

complaint does not set forth any factual allegations regarding the call, so there are no facts from

which the court could reasonably infer that the dispatchers and responding officers knew or should

have known that the call was fake. For purposes of these Rule 12(b)(6) motions, the court infers

6 Because the assault and battery count has not been raised against him, for purposes of these Rule

12(b)(6) motions, the court groups Lopes with the dispatchers.

that a “swatting” call led to the dispatch and response. The court will not draw any inferences

regarding what the dispatchers and responding officers knew or should have known about the call

because that would be too speculative.

These facts may be drawn from the non-conclusory, non-speculative allegations in the

complaint: On January 21, 2020, dispatchers received a “swatting” call about an incident at 464

Division Street, a multi-floor, multi-unit apartment building, and sent FRPD officers there. The

dispatch was for an incident that was “identified multiple times as occurring” on the first floor, in

the “front.” (#1 ¶¶ 18-20.)

Plaintiff was alone in his apartment on the third floor when, around 1:30 a.m., he heard

noises in the hallway and then a knock on his door. Id. ¶¶ 18, 21. Plaintiff opened his door and saw

several uniformed FRPD officers in the hallway. Id. ¶ 22. The complaint states that the responding

officers “included” Camara, Rezendes, Fournier, Furtado, Parousis, Kimball, Lopes, and Soule.

Id. ¶ 23.

One or more of the responding officers immediately hit plaintiff in his face with a hard

object, forced him to the ground, and violently struck him in several places on his body with a hard

object, believed to be a firearm. Id. ¶ 23. Plaintiff felt, seemingly, the barrel of a firearm against

his back and head and the weight of one or more of the responding officers forcibly holding him

down. Id. ¶ 24. Plaintiff began to lose consciousness and was so terrified that he soiled himself.

Id. ¶ 25.

While plaintiff was restrained, the responding officers searched his apartment. Id. ¶ 31.

Plaintiff alleges that this was done without probable cause, reasonable suspicion, a warrant, or his

consent, and with actual or constructive knowledge that the dispatch was for an incident allegedly

occurring on the first floor, not in his third-floor apartment. Id. ¶ 26; see id. ¶ 31 (responding

officers beat and restrained plaintiff and searched his apartment “after having been informed on at

least two occasions that the call was for an incident allegedly occurring on the first floor of the

apartment building”).

After the search, an officer apologized to plaintiff and explained that the responding

officers had gone to the wrong address. Id. ¶ 32. Plaintiff showered and then requested an

ambulance. He was taken to the hospital and treated for his injuries. Id. ¶ 33. Plaintiff alleges that

he sustained unspecified physical injuries and has suffered economic losses. He alleges that he

continues to suffer from unspecified physical injury, as well as emotional distress. Id. ¶¶ 34, 38-

39.

“In a transparent effort to conceal their unlawful activity, the FRPD authored at least one

false report.” Id. ¶ 35. No police reports are attached to the complaint (or the parties’ papers), and

the complaint does not describe the report(s) at issue further.

Plaintiff timely presented his claims pursuant to Mass. Gen. Laws ch. 258, § 4; defendants

did not respond. (#1 ¶ 41.)

IV. The Counts.

Count I alleges assault and battery against Parousis, Camara, Rezendes, Fournier, Furtado,

Soule, and Kimball. Id. ¶¶ 42-44. As noted, these are the defendants listed in the caption of Count

I, see #1 at 6; in the body, Aguiar is added to the list, see id. ¶ 43.

Count II alleges negligence against all defendants. Id. ¶¶ 45-51.

Although the caption of Count III lists all defendants, see id. at 8, in the body, only the

City, Dupere, and Kimball are alleged to have negligently trained and supervised individual

defendants, see id. ¶¶ 52-54; see also id. ¶ 37.

Counts IV alleges negligent infliction of emotional distress against all defendants. Id. ¶¶

55-59.

Count V alleges intentional infliction of emotional distress against all defendants. Id. ¶¶

60-64.

Count VI states a claim under the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen.

Laws ch. 12, §§ 11H and 11I, against all defendants. (#1 ¶¶ 65-68.)

Count VII is a claim under 42 U.S.C. § 1983 against all defendants, alleging, inter alia,

violations of plaintiff’s Fourth Amendment and substantive due process rights through the use of

excessive force; unlawful seizure; unlawful search; and the preparation of a false police report. (#1

¶¶ 69-79.) Plaintiff alleges that the actions of the dispatchers and responding officers “were done

in accordance with a custom or policy” of the City and Dupere. Id. ¶ 73.

V. Discussion.

A. Civil Rights Claims.

1. 42 U.S.C. § 1983.

a. The City.

i. Law.

42 U.S.C. § 1983 is the vehicle for raising violations of federal constitutional rights by

persons acting under color of state law. Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008).

Under § 1983, a municipality cannot be liable under a respondeat superior theory; instead, the

municipality itself must have caused the constitutional violation at issue. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691-692 (1978); see Saldivar v. Racine, 818 F.3d 14, 20 (1st Cir. 2016); see

also Aaron v. City of Lowell, #20-cv-11604-ADB, 2022 WL 2953033, at *2 (D. Mass. July 26,

2022); McElroy v. City of Lowell, 741 F. Supp. 2d 349, 353 (D. Mass. 2010). Thus, “it is only

when the governmental employees’ execution of a government’s policy or custom inflicts the

injury and is the moving force behind the constitutional violation that a municipality can be liable.”

Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 25 (1st Cir. 2005) (cleaned up) (quoting

Monell, 436 U.S. at 694).

Out of concern that municipal liability might collapse into de facto respondeat superior

liability, the United States Supreme Court has set a “very high” bar for § 1983 municipal liability

claims. Young, 404 F.3d at 26. There are three components: (1) the municipal action at issue must

constitute a policy or custom attributable to the municipality; (2) the municipal policy or custom

must have caused the constitutional violation; and (3) the municipality have the requisite level of

fault, which is “deliberate indifference.” Id.

A municipality can be liable under § 1983 based on a failure to train or supervise police

officers who then violate a plaintiff’s constitutional rights if the failure to train or supervise

amounted to deliberate indifference and the deficiency in the training program or supervision was

closely related to the constitutional violation. Young, 404 F.3d at 26 (quoting City of Canton v.

Harris, 489 U.S. 378, 388, 391 (1989)); see DiRico v. City of Quincy, 404 F.3d 464, 468-469 &

n.2 (1st Cir. 2005). “Deliberate indifference” is a “stringent standard of fault, requiring proof that

a municipal actor disregarded a known or obvious consequence of his action.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (cleaned up) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v

Brown, 520 U.S. 397, 410 (1997)); see Gray v. Cummings, 917 F.3d 1, 14 (1st Cir. 2019).

For purposes of a § 1983 municipal liability claim based on a failure to train or supervise

police officers, a plaintiff must typically show “a pattern of similar constitutional violations.”

Gray, 917 F.3d at 14 (quoting Connick, 563 U.S. at 62 (citing Bryan Cty., 520 U.S. at 409)); see

McElroy, 741 F. Supp. 2d at 354; see also Matalon v. City of Boston, #13-cv-10001-GAO, 2014

WL 108407, at *5 (D. Mass. Jan. 8, 2014); Sonia v. Town of Brookline, 914 F. Supp. 2d 36, 45-46

(D. Mass. 2012). Ordinarily, a “single incident” of police misconduct cannot support a § 1983

municipal liability claim, “without other evidence.” Bordanaro v. McLeod, 871 F.2d 1151, 1161

n.8 (1st Cir. 1989).

A municipality can be liable absent a pattern of similar constitutional violations in rare

cases, but the constitutional violation at issue must be a “highly predictable consequence of a

failure to equip law enforcement officers with specific tools to handle recurring situations.” Young,

404 F.3d at 28 (quoting Bryan Cnty., 520 U.S. at 409); see Canton, 489 U.S. at 390 n.10; accord

Hill v. Walsh, 884 F.3d 16, 24 (1st Cir. 2018) (pattern “ordinarily necessary” “unless the need for

more or different training is so obvious and the inadequacy is so likely to result in the violation of

constitutional rights”) (cleaned up) (citations omitted). Contrast Young, 404 F.3d at 28-29 (genuine

issue of material fact as to single-incident liability in case involving always armed/always on-duty

policy) with, e.g., Sonia, 914 F. Supp. 2d at 46-47 (no single-incident liability in case involving

always on-duty policy that permitted, but did not require, off-duty intervention).

ii. Analysis.

The court agrees with the City, see #31 at 5-8, that the complaint does not state a viable §

1983 municipal liability claim. The complaint only mentions the events of January 21, 2020. See

#1. Plaintiff explicitly asks the court to infer the existence of a municipal policy or custom of

failure to train and supervise police officers from those events alone, as well as, presumably, to

infer causation and deliberate indifference.7

7 See #35 at 4 (“the mere allegations that a number of police officers would believe that it is

acceptable practice to raid a third-floor apartment, while the call identified the first-floor

apartment, and then beat the compliant occupant, in and of itself, is sufficient evidence of the

existence of a municipal policy or custom – particularly under the circumstances as alleged where

Plaintiff cites the familiar case of Bordanaro, 871 F.2d 1151. (#35 at 4.) But Bordanaro

does not support drawing these inferences. There, the fact that the incident involved joint action

of the entire police department night watch was additional support for the existence of the facially

unconstitutional practice of breaking down doors without warrants when arresting felons. 871 F.2d

at 1156. Other evidence of the practice was presented, including testimony that an officer had been

present for numerous breakdowns and that the city provided a sledgehammer to facilitate the

practice. Id. at 1156.

The “jury was not asked to infer the existence of [the policy or custom of failing to train

and supervise police officers] based solely on the incident. . . .” Id. at 1159. Other evidence of the

policy or custom was presented, including testimony that, prior to the incident, an officer who

advocated for better training told the police chief and mayor that something bad would happen if

more training was not provided. The police chief and mayor had received oral and written requests

for better training prior to the incident. They discussed the matter and decided not to provide it,

ignoring subsequent requests. Id. at 1160-1161. In contrast, here, no evidence other than this

incident of the existence of a municipal policy or custom of failure to train and supervise police

officers has been presented. See Mahan v. Plymouth Cty. House of Corr., 64 F.3d 14, 16-17 (1st

Cir. 1995) (Bordanaro held that single incident of police misconduct “in and of itself” is

insufficient) (emphasis in original).

Plaintiff does not argue that this case falls within the narrow range of circumstances in

which single-incident liability may be imposed. See #35 at 3-4. Nor would the court have been

inclined to accept that argument. From the meager, mostly conclusory factual allegations in the

dispatchers informed the officers of the correct address, yet the officers ignored that information

and proceeded to the Plaintiff’s third floor apartment and assaulted him”).

complaint, the court cannot find that what happened to plaintiff was “so obviously the consequence

of a systematic lack of training, as opposed to the decisions of individual officers.” Hill, 884 F.3d

at 18, 23-24 (cleaned up) (affirming grant of summary judgment for city in case involving alleged

failure to train police to read warrants where officers entered parents’ home pursuant to warrant

authorizing civil commitment of son, notwithstanding that warrant stated that son was currently in

a hospital); see Aaron, 2022 WL 2953033, at *4 (at motion to dismiss stage, refusing to extend

single-incident liability to case involving failure to train on police report preparation) (citing

Cosenza v. City of Worcester, Mass., #4:18-cv-10936-TSH, 2021 WL 5138493, at *9 (D. Mass.

Nov. 4, 2021) (at summary judgment stage, refusing to extend single-incident liability to case

involving failure to train on photo arrays), appeal filed, ##23-1123, 23-1165)). Court VII is

dismissed as to the City.

b. Dupere.8

i. Law.

A supervisor, like a municipality, cannot be liable under § 1983 on a respondeat superior

theory. Justiniano, 986 F.3d at 20; see Parker, 935 F.3d at 14. For a § 1983 supervisory liability

claim, a plaintiff must show that one of the supervisor’s subordinates violated his constitutional

rights, as well as an affirmative link between the violation and some action or inaction on the part

of the supervisor. Parker, 935 F.3d at 14; see Justiniano, 986 F.3d at 20. “Affirmative link”

“contemplates proof that the supervisor’s conduct led inexorably to the constitutional violation.”

Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008) (quoting Hegarty v. Somerset Cnty., 53 F.3d

8 There are no factual allegations in the complaint suggesting that Dupere, the police chief, directly

participated in the events of January 21, 2020. See #1. Thus, the court treats the claims against

Dupere as supervisory liability claims.

1367, 1380 (1st Cir. 1995)); see Justiniano, 986 F.3d at 20 (link must be “solid”); Parker, 935

F.3d at 15 (deliberate indifference must lead “in a straight line” to violation).

Culpable action or inaction on the part of the supervisor may consist of “supervisory

encouragement, condonation, or acquiescence, or gross negligence amounting to deliberate

indifference.” Parker, 935 F.3d at 14 (cleaned up) (citations omitted); see Justiniano, 986 F.3d at

20.

Facts showing no more than a supervisor’s mere negligence vis-à-vis his

subordinate’s misconduct are not enough to make out a claim of supervisory

liability. . . . At a minimum, the plaintiff must allege facts showing that the

supervisor’s conduct sank to the level of deliberate indifference. . . .

Parker, 935 F.3d at 14 (citation omitted).

To make out deliberate indifference, a plaintiff must show (1) a grave risk of harm; (2) the

supervisor’s actual or constructive knowledge of the risk; and (3) his failure to take easily available

measures to address the risk. Justiniano, 986 F.3d at 20; see Parker, 935 F.3d at 15. Notice is key:

When – as in this case – there is no allegation of actual notice, the primary means

by which a plaintiff can show that [the supervisor] had knowledge of facts from

which [he] could infer a substantial risk of serious harm is to allege (plausibly) that

[the supervisor was] aware of previous and relevant misconduct by the subordinate

in question. . . . In order for a subordinate’s earlier conduct to put [the supervisor]

on notice of a substantial risk of serious harm, there must be some fact or facts that,

whether viewed singly or in combination, plausibly signal the likelihood that

particular misconduct may occur. . . . An isolated incident that concerns arguably

relevant misconduct, without more, typically will not be enough to ground a

reasonable inference that a substantial risk of serious harm was in prospect. . . .

Parker, 935 F.3d at 16 (citations omitted).

Absent a showing that the supervisor was aware of previous, relevant misconduct by the

particular subordinate, in “rare circumstances,” a plaintiff may make a plausible showing of

deliberate indifference through “a known history of widespread abuse sufficient to alert a

supervisor to ongoing violations.” Parker, 935 F.3d at 17 (citation omitted); see Justiniano, 986

F.3d at 21.

Like municipal liability, supervisory liability might also be appropriate in the “narrow

range of circumstances” in which the constitutional violation at issue is “a highly predictable

consequence of a failure to equip law enforcement with specific tools to handle recurring

situations.” Justiniano, 986 F.3d at 21 (quoting Young, 404 F.3d at 28).

ii. Analysis.

The complaint does not state a plausible § 1983 supervisory liability claim against Dupere.

The court is not inclined to apply Young. The complaint does not even hint at a known history of

widespread abuse.

The complaint does not include factual allegations from which the court might reasonably

infer that Dupere was or should have been aware of previous, relevant misconduct by the particular

dispatchers and responding officers. No earlier misconduct is alleged. The First Circuit has found

more fulsome allegations insufficient. See, e.g., Parker, 935 F.3d at 16-17 (affirming denial of

motion to amend supervisory liability claim as futile although proposed amended complaint

alleged that correctional officer accused of sexually assaulting plaintiff was suspended during prior

investigation of other officers alleged to have sexually assaulted other inmates; that sheriff told

newspaper about his intention to hold press conference about indictments of correctional officers;

and that corrections department official referred to officer in question as “the Teflon kid” since

“everyone knew he was up to something, but no one could pin anything on him”); Saldivar, 818

F.3d at 18-19 (affirming dismissal of supervisory liability claim against different FRPD chief;

although complaint included allegations regarding prior disciplinary violations by FRPD officer

alleged to have sexually assaulted plaintiff, violations did not indicate propensity for violence).

There are no factual allegations in the complaint from which the court might reasonably

infer that Dupere had notice of deficiencies in training programs or supervision and failed to take

easily available measures to address them. Nor can the court infer that Dupere’s putative failure to

take such measures caused the dispatchers and responding officers to violate plaintiff’s

constitutional rights.

Opposing dismissal of a different count, plaintiff alludes to “the increased level of police

misconduct and excessive force incidents that have been widely publicized throughout this

country.” (#25 at 4.) There are no factual allegations in the complaint regarding the “widely

publicized” incidents. Nor are there allegations from which to infer that additions or changes to

training programs or supervision in response to the “widely publicized” incidents would have

prevented the responding officers from going to the wrong address; beating plaintiff and seizing

him; searching his apartment; and preparing a false police report. See Justiniano, 986 F.3d at 22-

23 (affirming dismissal of supervisory liability claim against Massachusetts State Police

superintendent alleged to have failed to train on interactions with mentally ill individuals;

highlighting absence of allegations regarding history of use of excessive force against mentally ill

individuals, by troopers generally or the trooper who fatally shot mentally-ill decedent specifically,

as well as absence of allegations regarding training programs in other jurisdictions; declining to

apply Young in absence of allegations regarding widespread, prominent trend of constitutional

violations).

Citing no case law, plaintiff argues that a complaint describing events that are conscience-

shocking and alleging a failure to train and supervise states a plausible § 1983 supervisory liability

claim. (#25 at 5.) That argument is not supported by the case law. See, e.g., Saldivar, 818 F.3d at

16, 20, 21, 23 (affirming dismissal as to FRPD chief alleged to have been final decisionmaker as

to training, supervision, and retention notwithstanding “very disturbing,” “shocking” allegations

of “horrific” misconduct by FRPD officer). Count VII is dismissed as to Dupere.

c. The dispatchers and responding officers.

The complaint divides the remaining individual defendants into two groups – dispatchers

and responding officers – and then fails to specify who did what, including which of the one or

more responding officers beat and restrained plaintiff. (#1 ¶¶ 19, 22-24, 26-27, 31-32, 35.) The

dispatchers and responding officers argue that the civil rights (and intentional tort) claims should

be dismissed based on the form of the complaint.9

The confusion, including with respect to Lopes’ role, gives the court pause. But the court

recently addressed a “shotgun” complaint argument in Perrot v. Kelly, #18-cv-10147-DPW, 2023

WL 2939277, at *15-17 (D. Mass. Feb. 15, 2023), report and recommendation adopted, 2023 WL

2607763 (D. Mass. Mar. 23, 2023). As there, the court rejects the argument here, although the

responding officers certainly are free to argue for summary judgment on similar grounds. The court

acknowledges that group pleading is not ideal, but there is no heightened pleading requirement in

civil rights actions, and a number of other courts have concluded that, at the motion to dismiss

stage, it is sufficient for a civil rights plaintiff to identify defendants who may be liable. Id. at *16

& n.17 (collecting authorities).10 The responding officers were present at the scene and they have

adequate notice that plaintiff is alleging constitutional violations based on what happened there,11

9 See, as to Camara: #27 at 6-10, #42 at 2-6; see, as to the dispatchers and other responding officers:

#33 at 4-7, 11-13, #44 at 1-4, 6-7.

10 The court rejects plaintiff’s argument that the burden shifts to the dispatchers and responding

officers to prove that they are not liable. See #34 at 3, #36 at 3.

11 The § 1983 claim is based on what happened at the scene, not what led to the dispatch and

response to the scene. See #1 ¶¶ 69-79. Although the claim is also based on the preparation of an

allegedly false police report(s), see id. ¶ 77, it is settled in this circuit that the mere filing of a false

that is, the use of excessive force and unlawful seizure and search, regardless whether the

complaint specifically alleges, for instance, that Responding Officer X repeatedly hit plaintiff with

a gun while Responding Officer Y held him down forcibly and Responding Officer Z looked on,

offering words of encouragement or saying nothing at all. Contrast Peñalbert-Rosa v. Fortuño-

Burset, 631 F.3d 592, 594-595 (1st Cir. 2011) (remanding to allow plaintiff to add “John Doe”

defendant; complaint plausibly alleged that plaintiff was fired, via letter several weeks after new

governor took office, based on political affiliations but not that new governor, chief of staff, and

administrator of governor’s mansion “participated – either as perpetrators or accomplices – in the

decision”) (emphasis added).

The dispatchers are not alleged to have been present at the scene. They argue that the

complaint fails plausibly to allege the § 1983 failure to intervene claim that plaintiff more clearly

articulates in response to the “shotgun” complaint argument.12 (#44 at 3-4.) The court agrees. It is

settled in this circuit that an officer who is present at the scene and sees the use of excessive force

by another officer can be liable under § 1983, if the officer could realistically have prevented its

use and had enough time to do so. Davis v. Rennie, 264 F.3d 86, 98, 102 (1st Cir. 2001) (citing

Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 207 n.3 (1st Cir. 1990) (per curiam));

police report, without more, does not create a right of action in damages under § 1983. Landrigan

v. City of Warwick, 638 F.2d 736, 744-745 (1st Cir. 1980) (“we do not see how the existence of a

false police report, sitting in a drawer in a police station, by itself deprives a person of a right

secured by the Constitution or laws. . .The focus. . .ordinarily should be on the consequences, if

any, not on the mere existence of the report”) (citations omitted).

12 See #36 at 4 (“As to the individual actors in the role of dispatcher, the conduct attributable to

them is that they were aware the call was for a dispatch on the first floor and that they failed to

prevent the police officer actors from attacking the Plaintiff at his third floor apartment – knowing

that the police were at the wrong apartment, and that with that knowledge, they failed to call off

the attack or report the incident or supervisory police personnel so that the attack could be

stopped”).

see Calvi v. Knox Cty., 470 F.3d 422, 428 n.3 (1st Cir. 2006); see also Walker v. Jackson, 56 F.

Supp. 3d 89, 96 (D. Mass. 2014).13 Plaintiff’s assertions that the dispatchers knew that the

responding officers went to the wrong address, see #36 at 4, 9, are not supported by any factual

allegations in the complaint. There are no allegations from which to infer that the dispatchers were

aware or should have been aware that the responding officers would, or did, go to the wrong

address and would, or did, use allegedly excessive force, at a time when the dispatchers could have

prevented the responding officers from going to the wrong apartment and using such force. An

inference that the dispatchers and responding officers were communicating during the violent

encounter is speculative.14 Setting aside the fact that the dispatchers were not present at the scene,

if the dispatchers did not timely know or have reason to know that the responding officers were

13 There is debate in this circuit as to whether an officer has a duty to intervene in a constitutional

violation other than the use of excessive force. Walker v. Jackson, 952 F. Supp. 2d 343, 352 (D.

Mass. 2013) (“The court has not found any support for the proposition that allowing a fellow

officer to enter a residence and participating in the subsequent search constitutes a claim for failure

to intervene”); cf. Cosenza v. City of Worcester, Mass., 355 F. Supp. 3d 81, 100-101 (D. Mass.

2019) (officers entitled to qualified immunity on claim of failure to intervene in due process

violation). Courts that have recognized a broader duty to intervene, including in unlawful searches,

has required plausible allegations or proof that the officer, among other things, knew that the search

was happening and had reason to know it was unlawful. See Pryor v. Corrigan, #17-cv-1968, 2021

WL 1192581, *24 (N.D. Ill. Mar. 30, 2021) (at the summary judgment stage: “there is no evidence

to support a finding that Rios was both aware of the search and had an opportunity to intervene”)

(emphasis in original), appeal filed, #23-1463; see also Cook v. City of Fremont, #20-cv-02704-

JCS, 2020 WL 6318712, *6 (N.D. Cal. Oct. 28, 2020) (complaint did not allege that officers were

aware that search was conducted without warrant or consent) (citing Ramirez v. Butte-Silver Bow

Cty., 298 F.3d 1022, 1029-1030 (9th Cir. 2002), aff’d sub. nom. Groh v. Ramirez, 540 U.S. 551

(2004)).

14 Although the complaint alleges that after the search, an officer admitted that the responding

officers went to the wrong address, see #1 ¶ 32, it is speculative to conclude that the officer came

to this realization from communications with the dispatchers at a time when the dispatchers could

realistically have prevented the use of allegedly excessive force. It is equally possible that when

the search did not reveal whatever the responding officers were looking for, they radioed back to

the dispatchers who pointed out the officers’ error, or their own.

engaging in misconduct, then the dispatchers could not have prevented that misconduct. Therefore,

as to the dispatchers, the complaint fails to state a plausible § 1983 failure to intervene claim.

Count VII is dismissed as to the dispatchers.

The responding officers also argue that the failure to intervene claim fails. (#44 at 4.) The

court disagrees, given the factual allegations in the complaint that plaintiff opened his door and

saw “several” uniformed FRPD officers in the hallway and was “immediately” struck in the face.

(#1 ¶¶ 22-23.) The violent encounter lasted long enough for plaintiff to begin to lose consciousness

and soil himself. A search was conducted while he was restrained. Id. ¶¶ 25, 31. Those allegations

are sufficient at the motion to dismiss stage.

2. MCRA.

a. The City.

The MCRA permits civil action

[w]henever any person or persons, whether or not acting under color of law,

interfere by threats, intimidation or coercion, or attempt to interfere by threats,

intimidation or coercion, with the exercise or enjoyment by any other person or

persons of rights secured by the constitution or laws of the United States, or of

rights secured by the constitution or laws of the commonwealth. . . .

Mass. Gen. Laws. ch. 12, § 11H (by state Attorney General); Mass. Gen. Laws. ch. 12, § 11I (by

private parties). Unlike under 42 U.S.C. § 1983, municipalities are not “persons” under the MCRA.

Kelley v. LaForce, 288 F.3d 1, 11 n.9 (1st Cir. 2002) (citing Howcroft v. City of Peabody, 747

N.E.2d 729, 744 (Mass. App. Ct. 2001)). Count VI is dismissed as to the City.

b. Dupere; dispatchers; responding officers.

“Threats, intimidation or coercion” is “the ‘essential element’” under the MCRA.

Chaabouni v. City of Boston, 133 F. Supp. 2d 93, 100 (D. Mass. 2001) (quoting Layne v.

Superintendent of Mass. Correctional Inst., 546 N.E.2d 166, 168 (Mass. 1989)); see Planned

Parenthood League of Mass., Inc., v. Blake, 631 N.E.2d 985, 990 (Mass. 1994) (defining “threats,”

“intimidation,” and “coercion”). Dupere is not alleged to have directly participated in the events

of January 21, 2020; rather, he allegedly failed to train and supervise the dispatchers and

responding officers. Courts have held that MCRA claims may not be based on such conduct, which

does not involve “threats, intimidation or coercion.” See Fernandes v. Bouley, #20-cv-11612-

GAO, 2021 WL 4691602, at *14 (D. Mass. Aug. 2, 2021) (collecting authorities), report and

recommendation adopted, 2021 WL 4452311 (D. Mass. Sept. 29, 2021).

At any rate, plaintiff is claiming a “direct” violation of his constitutional rights, which

likewise does not involve “threats, intimidation or coercion.” Longval v. Comm’r of Corr., 535

N.E.2d 588, 593 (Mass. 1989); see Planned Parenthood, 631 N.E.2d at 989. The MCRA

contemplates a two-part sequence: (1) the defendant threatens, intimidates or coerces the plaintiff

to (2) cause him to give up something that he has the constitutional right to do. Goddard v. Kelley,

629 F. Supp. 2d 115, 128 (D. Mass. 2009). Here, however, plaintiff is essentially claiming that the

responding officers used excessive force and unlawfully seized him and searched his apartment to

cause him to give up his right to be free from excessive force and unlawful seizures and searches,

which “torture[s]” the MCRA “well beyond its plain meaning.” Id. at 128-129; see Patino v. City

of Revere, #13-cv-11114-FDS, 2014 WL 202760, at *11 (D. Mass. Jan. 16, 2014) (“Allegations

of excessive force and unlawful arrest, without more, have consistently been held not to constitute

violations of the MCRA”) (citations omitted); see also Gallagher v. South Shore Hosp., Inc., 197

N.E.3d 885, 904 (Mass. App. Ct. 2022) (“entry into the home, standing alone, cannot constitute a

violation of the MCRA”).

Plaintiff attempts to rebrand the claim as based on the covenant of “quiet enjoyment.” (#25

at 4, #34 at 6, #36 at 7.) But he is still essentially claiming that the responding officers unlawfully

entered his home to cause him to give up his right to be free from unlawful entries into his home.

Anyway, plaintiff has not cited any case law to support his new theory. Count VI is dismissed as

to the individual defendants.

B. Common Law Claims.

1. Negligence.

a. Dupere; dispatchers; responding officers.

Under the Massachusetts Tort Claims Act (“MTCA”), the individual officers cannot be

held personally liable for injury caused by their negligent conduct within the scope of their

employment. Mass. Gen. Laws ch. 258, § 2, unambiguously states that “. . .no such public

employee . . . shall be liable for any injury . . . caused by his negligent or wrongful act or omission

while acting within the scope of his office or employment. . . .” Id.; Mass. Gen. Laws ch. 258, § 1

(defining “public employer” to include cities and towns and “public employee” to include full or

part-time, temporary or permanent, and paid or unpaid employees of any public employer); see

Breault v. Chairman of Bd. of Fire Com’rs of Springfield, 513 N.E.2d 1277, 1283 (Mass. 1987);

see also Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003); Henriquez v. City of Lawrence, #14-

cv-14710-IT, 2015 WL 3913449, at *5 (D. Mass. June 25, 2015). Plaintiff does not argue that the

individual defendants were acting outside the scope of their employment and in fact appears to

acknowledge that they were acting within the scope.15 See, e.g., Horan v. Cabral, 277 F. Supp. 3d

229, 235-236 (D. Mass. 2017) (dismissing negligence claims in absence of factual allegations in

complaint suggesting that sheriff was acting outside scope of her employment).

15 See #25 at 3 (“The plaintiff has alleged alternative theories against Dupere. One theory, that he

acted negligently in the performance of his duties, provides a basis for liability against Dupere”)

(emphasis added); see also #34 at 5 (Camara); #36 at 5 (dispatchers and other responding officers).

Plaintiff nevertheless opposes dismissal of the negligence claims as to the individual

defendants. Although it is not clear, plaintiff may be arguing that he can pursue negligence claims

against the individual defendants in their official capacities because official capacity claims are

treated as claims against the City, which can be held vicariously liable for injury caused by the

individual defendants’ negligent conduct within the scope of their employment.16 (#25 at 2-3; #34

at 4-6; #36 at 4-6) (citing, inter alia, Villanueva v. Franklin Cty. Sheriff’s Office, 849 F. Supp. 2d

186, 191 (D. Mass. 2012) (dismissing individual, but not official, capacity negligence claim)

(citing Kentucky v. Graham, 473 U.S. 159, 166 (1985) (official-capacity claims are “in all respects

other than name, to be treated as a suit against the entity”))).17

The individual defendants argue that the official capacity negligence claims against them

are redundant of the vicarious negligence claims against the City.18 Plaintiff does not explain how

16 In addition to absolving public employees from personal liability for their negligent conduct

within the scope of their employment, Mass. Gen. Laws ch. 258, § 2, provides:

Public employers shall be liable for injury . . . caused by the negligent or wrongful

act or omission of any public employee while acting within the scope of his office

or employment, in the same manner and to the same extent as a private individual

under like circumstances. . . .

Id.

17 Otherwise, plaintiff seems to be saying that dismissal is not appropriate because he is pursuing

individual capacity claims against the individual defendants based on alternative theories of

negligent and intentional conduct. (#25 at 2-3; #34 at 4-6; #36 at 4-6.) Plaintiff may pursue

alternative theories, see Fed. R. Civ. P. 8(d)(2)-(3), but the fact that he is pursuing individual

capacity claims against the individual defendants based on intentional conduct does not change the

fact that individual capacity claims against the individual defendants based on negligent conduct

are barred by the MTCA’s plain language.

18 See, as to Dupere, #24 at 5-6 (all claims); see, as to Camara, #27 at 5-6 (all claims); see, as to

the dispatchers and other responding officers, #32 at 2 (incorporating Dupere and Camara’s

arguments), #33 at 13 (42 U.S.C. § 1983 claim).

the analysis of the former claims differs from the analysis of the latter claims. The court therefore

dismisses the official capacity negligence claims against the individual defendants as redundant of

the vicarious negligence claims against the City. See Doe v. Fournier, 851 F. Supp. 2d 207, 214-

215 (D. Mass. 2012) (dismissing negligence claims against individual school committee members,

who were only named in their official capacities, as redundant of negligence claims against school

committee itself: “Plaintiff’s claims against the school committee members are superfluous, as

Plaintiff may recover any damages she is entitled to through her claims against the municipal

defendants. . . . The inclusion of numerous individual defendants creates clutter that may confuse

a jury, and dismissing the claims against these defendants would in no way prejudice Plaintiff”)

(citations omitted).19

To the extent that they have been raised against Dupere, the dispatchers, and the responding

officers in their individual capacities, Counts II, III, and IV are dismissed under Mass. Gen. Laws

ch. 258, § 2. To the extent that they have been raised against Dupere, the dispatchers, and the

responding officers in their official capacities, Counts II, III, and IV are dismissed as redundant.

b. The City.

Generally, to state a claim for negligence under Massachusetts law, a plaintiff must

plausibly allege that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the

defendant breached that duty; (3) damage resulted; and (4) the defendant’s breach caused the

damage. Saldivar, 818 F.3d at 20-21 (citing Jupin v. Kask, 849 N.E. 2d 829, 834-835 (Mass.

2006)).

19 Villanueva and Doe were both decided by Judge Ponsor, with Doe decided on February 22,

2012, and Villanueva decided about a month later, on March 27, 2012. In Villanueva, Judge Ponsor

noted that the county and county officials had not argued for dismissal of the negligence count on

other grounds. 849 F. Supp. 2d at 191.

i. Negligent training and supervision.

Under Massachusetts law, “[e]mployers are responsible for exercising reasonable care to

ensure that their employees do not cause foreseeable harm to a foreseeable class of plaintiffs.”

Helfman v. Northeastern Univ., 149 N.E.3d 758, 775 (Mass. 2020) (quoting Roe No. 1 v.

Children’s Hosp. Med. Ctr., 16 N.E.3d 1044, 1048 (Mass. 2014)). For a claim that an employer

negligently trained an employee, “a plaintiff must show that ‘the employer [became] aware or

should have become aware of problems with an employee that indicated his unfitness, and the

employer fails to take further action such as investigating, discharge or reassignment.” Id.

(alteration in original) (quoting Foster v. The Loft, Inc., 526 N.E.2d 1309, 1311 (Mass. App. Ct.

1988)); cf. Patino, 2014 WL 202760, at *10 (“Massachusetts cases have only allowed supervisory

negligence claims against municipalities where the municipality knew or should have known about

an underlying, identifiable tort. . . ”) (quoting Kennedy v. Town of Billerica, 617 F.3d 520, 533

(1st Cir. 2010)). This notice requirement has also been applied to claims that employers negligently

supervised employees. Doe v. Stonehill College, Inc., 55 F.4th 302, 338 (1st Cir. 2022) (quoting

Helfman, 149 N.E.3d at 775); see id. (affirming dismissal of negligent supervision claim; plaintiff

failed to allege with specificity how coordinator would have become aware of investigators’

alleged incompetence); see also Houle v. LaFlamme, #20-cv-11524-IT, 2021 WL 3742459, at *7

(D. Mass. Aug. 24, 2021) (dismissing negligent training and supervision claim in case involving

police response to plaintiff’s home upon being provided license plate number by alleged victim of

robbery, where response led to arrest of plaintiff’s son and allegedly unlawful search of home:

“Other than conclusory allegations, such as that ‘Methuen has been aware of the violations of

constitutional rights. . .for years,’ . . .Houle does not allege that Methuen knew or should have

known of any problems with the individual officers, nor has she alleged that Methuen failed to

take corrective action upon becoming aware of such issues”) (citation to amended complaint

omitted).

The City argues that there are no factual allegations in the complaint to suggest that

supervisors became aware or should have become aware of problems with training, or that

supervisors were put on notice that the dispatchers and responding officers were unfit, yet failed

to take further action. (#31 at 10 & n.4.) Plaintiff essentially argues that training and supervision

deficiencies are obvious from the events of January 21, 2020, alone. (#35 at 5.) Plaintiff has not

cited any case holding that factual allegations like those here, which fall far short for purposes of

the § 1983 municipal and supervisory liability claims, are nevertheless sufficient for purposes of

the negligent training and supervision claim. See Weiss v. Lavallee, #02-cv-40177-FDS, 2005 WL

8176485, at *22 (D. Mass. Oct. 7, 2005) (“the negligence required for recovery under the MTCA

for alleged inadequate police training is similar, if not identical, to the deliberate indifference

required under § 1983 in municipal liability claims”) (citing Parker v. Town of Swansea, 270 F.

Supp. 2d 92, 101-102 (D. Mass. 2003)). Count III is dismissed.20, 21

20 The court does not reach the City’s argument that the negligent training and supervision count,

like the negligence and negligent infliction of emotional distress counts, is barred by Mass. Gen.

Laws ch. 258, § 10(j), the original cause exemption, addressed infra. (#31 at 11.) The issue is

subject to some debate, and the court does not need to weigh in. See LaPierre v. City of Lawrence,

#11-cv-12039-RWZ, 2013 WL 1829120, at *3-4 (D. Mass. May 1, 2013) (disagreeing with cases

in this district holding that § 10(j) bars claims that public employers failed to train or supervise

public employees who then committed intentional torts in part because plain language of § 10(j)

suggests that public employers should be liable for harm caused by “person[s] acting on [their]

behalf”); see also Doe v. Holly, #22-1232, 2023 WL 4542949, at *3 n.4 (1st Cir. July 14, 2023)

(unreported) (in case involving third-party harm, acknowledging, but declining to address, split).

21 So much of the negligent training and supervision and negligence counts that seek to hold the

City vicariously liable for the individual defendants’ putative failure to “properly exercis[e] control

over police officers under their supervision,” see #1 ¶ 47(i), is dismissed because (1) as discussed,

plaintiff has not plausibly alleged that Dupere had notice; and (2) there are no factual allegations

in the complaint from which the court might reasonably infer that the dispatchers and responding

officers had supervisory authority. Except Dupere, the individual defendants are described as

ii. Negligence.

In seeking dismissal of all negligence counts, the City raises three arguments. First, in a

single sentence, the City argues that plaintiff is alleging intentional conduct by the responding

officers when they entered his apartment and beat him, presumably in support of an argument that

the counts are barred by Mass. Gen. Laws ch. 258, § 10(c), the intentional tort exemption.22 (#31

at 10); see id. at 9. Also in a single sentence, the City argues that plaintiff does not plausibly allege

that negligent conduct caused him damages. Id. at 10.

Finally, the City argues that all negligence counts are barred by Mass. Gen. Laws ch. 258,

§ 10(j), the original cause exemption.23 (#31 at 11.)24

For ease of analysis, the court divides into subclaims the alleged conduct which supports

the negligence (and negligent infliction of emotional distress) claim against the City. As set forth

“officer[s] of the FRPD” or “officer[s] and or dispatcher[s]/call taker[s] of the FRPD.” (#1 ¶¶ 6-

17.) The court may not speculate about their responsibilities.

22 That section exempts the City from liability for any claims

arising out of an intentional tort, including assault, battery, false imprisonment,

false arrest, intentional mental distress, malicious prosecution, malicious abuse of

process, libel, slander, misrepresentation, deceit, invasion of privacy, interference

with advantageous relations or interference with contractual relations. . . .

Mass. Gen. Laws ch. 258, § 10(c).

23 That section exempts the City from liability for any claims

based on an act or failure to act to prevent or diminish the harmful consequences of

a condition or situation. . .which is not originally caused by the public employer or

any other person acting on behalf of the public employer.

Mass. Gen. Laws ch. 258, § 10(j).

24 In seeking dismissal of the negligence claims, the City has not invoked any exemptions other

than intentional tort, § 10(c), and the original cause, § 10(j), exemptions. See #31 at 10-11.

in the complaint, the City and individual defendants breached duties of care by (1) failing to send

the responding officers to the correct address; (2) failing to inform the responding officers that

they should not go to the wrong address; (3) going to the wrong address; (4) entering plaintiff’s

residence without justification; (5) beating him; (6) arresting or detaining him without justification;

(7) creating an allegedly false police report(s) as a cover-up; (8) failing to ensure that police reports

are truthful; and (9) failing to investigate plaintiff’s claims, apparently after presentment. (#1 ¶¶

28-29, 41, 46-50.)

The seventh and eighth subclaims clearly are not actionable. In alleging the creation of an

allegedly false police report(s) as a cover-up, plaintiff is alleging intentional conduct, barred by

Mass. Gen. Laws ch. 258, § 10(c). Cf. Williams v. City of Boston, #10-cv-10131-PBS, 2012 WL

5829124, *1, 13 (D. Mass. Sept. 21, 2012) (adopting recommendation that summary judgment be

granted for city on negligence claim based on fabrication of evidence). Further, to the extent that

plaintiff is claiming negligent failure to train police on the preparation of truthful reports or

negligent approval of the allegedly false police report(s), there are no factual allegations in the

complaint from which the court might reasonably infer that supervisory officials who were not at

the scene (i.e., Dupere) had notice of problems with training or that the report(s) at issue was false.

There are also no allegations suggesting that supervisory officials who were present at the scene

(if any) had a role in police report training or approval. Although the allegedly false police report(s)

itself might have shed some light, the report(s) is not attached to the complaint.

The City does not specifically address the ninth subclaim. The court therefore does not

dismiss the negligence count (or negligent infliction of emotional distress count) insofar as it is

based on a putative post-presentment failure to investigate. The City is free to develop an argument

at a later stage.

As to the fourth, fifth, and sixth subclaims, assault, battery, false imprisonment, and false

arrest are each intentional torts expressly barred by § 10(c). See Patino, 2014 WL 202760, at *10

(complaint does not state plausible negligence claim by alleging excessive force and false arrest).

The Massachusetts Supreme Judicial Court has, however, recognized that some police conduct

during an arrest could result in a finding of negligence. Gutierrez v. Mass. Bay Transp. Auth., 772

N.E.2d 552, 559 (Mass. 2002) (jury “could have found some form of negligence on either party’s

version of events,” since plaintiff claimed that officer broke her arm by grabbing and pulling it and

officer claimed that he broke her arm by accidentally falling on her as she resisted arrest). At least

two judges in this district have declined to dismiss negligence counts against municipalities to the

extent that the plaintiffs’ claims were based on physical interactions with arresting officers. Firmin

v. City of Boston, #19-cv-12158-ADB, 2021 WL 352376, at *5-6 (D. Mass. Feb. 2, 2021)

(declining to dismiss negligence claim based on, e.g., officers forcing plaintiff to ground and

putting weight on him: “it is too early to determine whether those physical interactions were

tortious and, if so, whether they were negligent, reckless, or intentional”) (adopting Cecchinato v.

Town of Sheffield, #19-cv-30076-KAR, 2021 WL 24580, at *3 (D. Mass. Jan. 4, 2021) (plaintiff

can plead alternative theories but cannot recover on both)). The court therefore will not dismiss

the negligence count (or the negligent infliction of emotional distress count) under § 10(c), to the

extent that plaintiff’s claims are based on physical interactions with the responding officers.

When the fourth, fifth, and sixth subclaims are read in conjunction with the first and second,

as well as plaintiff’s papers, it seems that plaintiff is claiming either an errant dispatch of the

“swatting” call or an errant response to an accurate dispatch. Contrast #35 at 4, 5 (prior to

encounter, dispatchers informed responding officers of correct address and officers “ignored”

them) with #36 at 6 (dispatchers may have failed to make correct address “sufficiently clear” to

responding officers). The City’s § 10(c) argument is not directed at these subclaims, so the court

does not dismiss them.

Nor is the court persuaded by the City’s § 10(j) argument. The harmful situation was

“originally caused” by the dispatchers or responding officers, “person[s] acting on [the City’s]

behalf.” Mass. Gen. Laws ch. 258, § 10(j); see, e.g., Dudley v. Mass. State Police, 78 N.E.3d 136,

139-140 (Mass. App. Ct. 2017) (§ 10(j) did not bar negligence claim against Massachusetts State

Police where trooper’s releasing K-9 to capture fleeing suspect caused injury to plaintiff-

bystander); Parks v. Town of Leicester, #10-cv-30120-FDS, 2011 WL 864823, at *6 (D. Mass.

Mar. 9, 2011) (§ 10(j) did not bar negligence claim against town where mistake in identifying

plaintiff as assailant named by victim was made during investigation); Serrell v. Franklin Cty.,

713 N.E.2d 389, 392 (Mass. App. Ct. 1999) (§ 10(j) did not bar negligence claim against county

where correctional officers’ subduing inmate in visitor area caused injury to plaintiff-bystander).

iii. Negligent infliction of emotional distress.

To state a claim for negligent infliction of emotional distress, a plaintiff must plausibly

allege (1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by

objective symptomology; and (5) that a reasonable person would have suffered emotional distress

under the circumstances. Doe v. Trustees of Boston College, 892 F.3d 67, 95 (1st Cir. 2018)

(quoting Payton v. Abbott Labs, 437 N.E.2d 171, 181 (Mass. 1982)).

The City argues that plaintiff has not plausibly alleged physical harm manifested by

objective symptomology. (#31 at 10-11.) The court rejects this argument, notwithstanding

plaintiff’s failure to respond. See #35 at 5. When considered in conjunction with the violent nature

of the encounter, the allegations that plaintiff began to lose consciousness and was so terrified that

he soiled himself, see #1 ¶ 25; was severely injured and traumatized, id. ¶ 33; and continues to

suffer physical and emotional distress, id. ¶ 34, are sufficient at the motion to dismiss stage. Cf.

Sullivan v. Boston Gas Co., 605 N.E.2d 805, 810-811 (Mass. 1993) (at summary judgment stage,

plaintiffs presented sufficient objective evidence of physical manifestations of mental distress, e.g.

headaches, muscle tenderness, problems concentrating and reading, sleeplessness, gastrointestinal

distress, and nightmares; nature of incident, i.e. explosion of home, corroborated genuineness of

claim).

2. Intentional torts.

a. The City.25

The intentional infliction of emotional distress count, V, must be dismissed as to the City,

which is exempt from liability for intentional torts, including “intentional mental distress.” Mass.

Gen. Laws ch. 258, § 10(c); see Sullivan v. Town of Walpole, #20-cv-10484-GAO, 2021 WL

3174371, at *1 (D. Mass. June 21, 2021).

b. Dupere.26

To state a claim for intentional infliction of emotional distress, a plaintiff must plausibly

allege that (1) the defendant intended, knew, or should have known that his conduct would cause

emotional distress; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional

distress; and (4) the emotional distress was severe. Penate v. Sullivan, 73 F.4th 10, 23 (1st Cir.

2023) (quoting Polay v. McMahan, 10 N.E.3d 1122, 1128 (Mass. 2014)); see Doyle v. Hasbro,

Inc., 103 F.3d 186, 195 (1st Cir. 1996) (quoting Agis v. Howard Johnson Co., 355 N.E.2d 315,

318-319 (Mass. 1976)); see also Rua v. Glodis, 52 F. Supp. 3d 84, 100 (D. Mass. 2014); Henriquez,

25 The complaint only raises the claim of intentional infliction of emotional distress against the

City, not the claim of assault and battery. See #1 at 6, 9.

26 The complaint only raises the claim of intentional infliction of emotional distress against Dupere,

not the claim of assault and battery. See #1 at 6, 9.

2015 WL 3913449, at *5. The Massachusetts Supreme Judicial Court has set the bar “very high”

for intentional infliction of emotional distress claims. Penate, 73 F.4th at 23 (quoting Doyle, 103

F.3d at 195); see Agis, 355 N.E. 2d at 318-319. Conduct must have been “targeted” at the plaintiff.

Diaz v. Devlin, 229 F. Supp. 3d 101, 113 (D. Mass. 2017) (quoting Rua, 52 F. Supp. 3d at 100).

Moreover, conduct is “extreme and outrageous” only if it “goes beyond all possible bounds of

decency and is regarded as atrocious, and utterly intolerable in a civilized society.” Penate, 73

F.4th at 23 (cleaned up) (quoting Polay, 10 N.E.3d at 1128); see, e.g., id. (officers’ entry into home

believed to contain armed and violent suspect to execute search warrant, even without knocking

and with firearms drawn, was not extreme and outrageous conduct).

Plaintiff does not allege that Dupere was present on January 21, 2020, or that he had any

role in the encounter or putative cover-up. Judges in this district have dismissed intentional

infliction of emotional distress claims in these circumstances. See, e.g., Diaz, 229 F. Supp. 3d at

113 (no allegation that detective was present or acted intentionally); Henriquez, 2015 WL

3913449, at *5 (no allegation that police chief was present or knew plaintiff needed medical care);

cf. Rua, 52 F. Supp. 3d at 100 & n.11 (in entering summary judgment, noting undisputed contention

that, prior to suit, sheriff had no knowledge of plaintiff).

Plaintiff makes two arguments in opposition to dismissal of the intentional infliction of

emotional distress count as to Dupere: (1) the failure to train is sufficient if the alleged events are

conscience-shocking and (2) public policy requires that the very high bar be lowered given the

increase of police misconduct incidents nationwide. (#25 at 4.) Plaintiff does not any cite case law

for either argument. The first is clearly refuted by the case law above. The second has been made

in the wrong forum; this court cannot alter Massachusetts common law. Count V is dismissed as

to Dupere.

c. The dispatchers.27

The court already found, for purposes of the § 1983 failure to intervene claim, that plaintiff

has not plausibly alleged the dispatchers knew or should have known that the responding officers

went to the wrong address or used excessive force. See Part A.1.c. Given the scienter requirement,

this finding also defeats the intentional infliction of emotional distress claim. Count V is dismissed

as to the dispatchers.

d. The responding officers.

The responding officers argue that the intentional infliction of emotional distress count and

the assault and battery count, I, must be dismissed because the complaint fails to specify who did

what. (#33 at 7, 8-9.) The court already rejected the “shotgun” complaint argument. See Part A.1.c.

V. Conclusion.

The complaint fails to state any plausible claims as to Dupere, who is dismissed from this

action. The complaint also fails to state any plausible claims as to the dispatchers, Goff, Souliere,

Boyer, and Lopes, who are dismissed from this action.28

Count VII (42 U.S.C. § 1983) is dismissed as to the City but may proceed against the

responding officers, Camara, Rezendes, Fournier, Furtado, Parousis, Kimball, and Soule, in

accordance with the discussion above. Count VI (MCRA) is dismissed. Count III (negligent

training and supervision) is dismissed. Count II (negligence) and Count IV (negligent infliction of

emotional distress) are dismissed as to the responding officers but may proceed against the City in

27 The complaint only raises the claim of intentional infliction of emotional distress against the

dispatchers, not the claim of assault and battery. See #1 at 6, 9.

28 Given the confusion concerning his role, if Lopes was in fact a responding officer and not merely

a dispatcher, then plaintiff may file a motion to amend the complaint, within 21 days of this

memorandum and order.

accordance with the discussion above. Count V (intentional infliction of emotional distress) is

dismissed as to the City. That count and Count I (assault and battery) may proceed against the

responding officers.

Stated another way, the negligence count, II, and the negligent infliction of emotional

distress count, III, survive as to the City only, while the assault and battery count, I; the intentional

infliction of emotional distress count, V; and the 42 U.S.C. § 1983 count, VII, survive as to the

responding officers only. In all other respects, the Rule 12(b)(6) motions are granted.

/s/ M. PAGE KELLEY

November 20, 2023 M. Page Kelley

United States Magistrate Judge