Gonzalez v. Lexington Police Department

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

TANIA A. GONZALEZ,

Plaintiff,

v.

LEXINGTON POLICE DEPARTMENT,

CHRISTOPHER BARRY, MICHAEL No. 24-cv-10908-NMG

BARRY, MICHAEL MCGLOIN, DENNAHE

ADLEY, and JOSEPH CIAMPA d/b/a

BEACON POINT DEVELOPMENT, LCC,

JANITSA PARISI,

Defendants.

REPORT AND RECOMMENDATION ON

DEFENDANTS’ MOTIONS TO DISMISS AND

PLAINTIFF’S MOTION TO REMAND

LEVENSON, U.S.M.J.

Judge Gorton has referred to me for Report and Recommendation the following motions:

• Motion to Dismiss for Failure to State a Claim (Docket No. 7), filed by

Defendants Lexington Police Department, Christopher Barry, Michael Barry,

Dennahe Adley, and Michael McGloin.

• Motion to Dismiss for Failure to State a Claim (Docket No. 14), filed by Joseph

Ciampa; Beacon Point Development, LLC; and Janitsa Parisi.

• Motion to Remand (Docket No. 16), filed by Plaintiff Tania A. Gonzalez.

I have considered the motions and the memoranda filed in support. I have also considered

Plaintiff’s various submissions. See Docket Nos. 17, 19, 20 and 23. I treat these as oppositions to

Defendants’ motions and consider them in that light.

For the reasons discussed below, I recommend that the Court deny Plaintiff’s motion to

remand (Docket No. 16) and grant Defendants’ motions to dismiss (Docket Nos. 7, 14).

However, I recommend that the Court dismiss Plaintiff’s Complaint without prejudice to

Plaintiff filing an amended complaint that complies with the requirement for a “short and plain

statement” of Plaintiff’s claim (that is, a concise statement with sufficient factual detail to enable

Defendants—and the Court—to identify what it is that Plaintiff alleges that each Defendant has

done that warrants relief).

I. Background

On March 15, 2024, pro se Plaintiff Tania A. Gonzalez (“Plaintiff”) filed a Complaint in

Middlesex Superior Court, naming as Defendants the Lexington Police Department and several

of its employees, namely Christopher Barry, Michael Barry, Michael McGloin, and Dennahe

Adley (the “Lexington Defendants”). Plaintiff also named as Defendants Joseph Ciampa,

managing partner of Beacon Point Development, LLC (“Beacon Point”), which owns and

manages the property in which Plaintiff lives, and Janitsa Parisi, a secretarial assistant at Beacon

Point (the “Landlord Defendants”).1

On April 9, 2024, the Lexington Defendants removed the case to federal court, noting

that the Complaint alleges violations of the Americans with Disabilities Act (“ADA”) and 42

U.S.C. § 1983. Docket No. 2, ¶ 3.

As best as can be gleaned from the Complaint, Plaintiff alleges that one or more of the

Lexington Defendants:

• “[F]ail[ed] to provide all necessary/repeatedly asked for remedies from the

Community Resource Center” in Lexington; and

1 Accompanying Plaintiff’s Complaint is a handwritten note seeking to add Janitsa Parisi as a

defendant. Docket No. 2-2, at 9.

• “On multiple occasions . . . continue[d] to assume/insinuate that [Plaintiff] was

suicidal, presented with suicidal ideations, threats to self/threats to harm others[.]”

Docket No. 2-2, at 4.

Plaintiff further alleges that Defendant Christopher Barry:

• “On numerous occasions . . . [i]nsisted that [Plaintiff] reach out and go to the

Concord District Court[] and speak to the appointed Court clinician, and work

with Elliot Community Health[]”; and

• Violated “Section 35” by having Plaintiff involuntarily committed, knowing that

she “had no HCP in place, no next of kin, [and] no power of attorney[.]”

Id.

As for the Landlord Defendants, Plaintiff alleges that they:

• Failed to disclose that Lexington Wine & Spirits was leasing or would lease space

in the same complex where Plaintiff rented an apartment; and

• Failed to prevent other tenants from smoking in their units, thereby adversely

affecting Plaintiff’s asthma and compromised immune system.2

Id. at 4–5.

Along with these minimal factual allegations, the Complaint states a litany of conclusory

allegations, many of which are the names of legal claims or causes of action. These include:

“abuse of authority, abuse of power, biased/racial profiling, discrimination . . . [,] falsely

deducing narratives/unfounded/untrue, [and] refusing to file criminal charges against

2 Specifically, the Complaint states:

Federal and Massachusetts Statutes> failing to provide reasonable accommodations

AND reasonable modifications > violating his own lease “non smoking

community” As a Disabled person under ADA (1990) Asthma > Ciampa, has failed

umpteen times to remove other tenants who are compromising the oxygenated air

I’m struggling to take in . . . .”

Docket No. 2-2, at 5.

individual(s) who inflicted imminent fear/imminent danger/threat to a disabled individual[] . . . .”

Id. at 5. Plaintiff also alleges that the Lexington Defendants “alienated, accosted, disrespected

and punished” her. Id. at 7.

In the same vein, the Complaint recites in conclusory fashion that Defendant “Ciampa is

guilty of IIED,” id. at 5, and lists the following further reasons for bringing suit against him:

“[l]andlord/tenant dispute, discrimination, housing discrimination, violations of G.L.111, Section

127- building code violations, sanitary code violations, under 93A (falsely deducing, failure to

disclose),” id. at 4. There are also mentions of “[n]egligence physical health adversely

compromised” and “[t]ortious interference.” Id. at 7. Here again, there is no description of any

facts or events that would enable Defendants, or the Court, to identify any underlying factual

basis for such claims.

Apart from the Complaint, I note that Plaintiff submitted an “affidavit” dated May 28,

2024. Docket No. 23. The affidavit includes various statements suggestive of wrongdoing or bad

motives, albeit without specifying what particular wrongful acts Plaintiff complains of. See

generally id. Plaintiff asserts, for example, that Lexington is “unwelcoming to minorities being

Hispanic.” Id. at 1. Plaintiff further claims that there is “a pattern of abuse of authority,

ruthlessness, and color of law racial profiling.” Id. The affidavit is not part of the Complaint,

which must—at the motion to dismiss stage—be judged on its own merits. See Autila v. Mass.

Bay Transp. Auth., 342 F.R.D. 23, 30 (D. Mass. 2022) (explaining that if an affidavit were

deemed part of a complaint, it “would severely compromise the ability of defendants and courts

to test the legal viability of complaints at the pleading stage, a right that is integral to federal

procedure” (quoting Smith v. Hogan, 794 F.3d 249, 255 (2d Cir. 2015))).

All Defendants have moved to dismiss.

II. Plaintiff’s Motion to Remand

A civil case may be removed from state to federal court, regardless of the parties’

citizenship, where the federal district court has original jurisdiction (i.e., where the action

“aris[es] under the Constitution, laws, or treaties of the United States”). 28 U.S.C.

§§ 1331, 1441(a). That the “action arise[s] under federal law[]” must be apparent from the face

of the complaint. Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 56 (1st Cir. 2005) (quoting

Penobscot Nation v. Georgia-Pac. Corp., 254 F.3d 317, 321 (1st Cir. 2001)), rev’d on other

grounds, Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006).

Although the factual underpinnings of Plaintiff’s claims are not readily discernable (as

discussed below), it is evident from Plaintiff’s Complaint that her claims include alleged

violations of her constitutional rights and of federal anti-discrimination and/or reasonable

accommodation provisions. See Docket No. 2-2, at 7 (Complaint expressly referencing “[f]ederal

rulings VIOlATIONS,” including the ADA); Docket No. 2-3, at 2 (state court Civil Action

Cover Sheet signed by Plaintiff expressly referencing violations of “Section 1983 of the Civil

Rights Act (42 U.S.C.)”). To be sure, the Complaint includes references to various state statutes

as well, such as “G.L.111” and “93A.” Docket No. 2-2, at 4. But the mere presence of state law

claims does not require remand to state court. See 28 U.S.C. § 1441(c).

For these reasons, I recommend that the Court deny Plaintiff’s motion to remand (Docket

No. 16).

III. Defendants’ Motions to Dismiss

A. Standard of Review

Under Federal Rule of Civil Procedure 8, a pleading must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As

the Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Rule 8

“does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 555). In other words, a complaint that merely “tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Id. (alteration in original)

(quoting Twombly, 550 U.S. at 557).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,

550 U.S. at 570). “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.; see Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007)

(explaining that district courts “must assume the truth of all well-plead[ed] facts and give the

plaintiff the benefit of all reasonable inferences therefrom”).

“‘[A] pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). That said, pro se litigants are not

free to ignore the Federal Rules of Civil Procedure, including the pleading requirements set forth

therein. See FDIC v. Anchor Props., 13 F.3d 27, 31 (1st Cir. 1994) (“We have consistently held

that a litigant’s ‘pro se status [does not] absolve him from compliance with the Federal Rules of

Civil Procedure.’” (alteration in original) (quoting United States v. Heller, 957 F.2d 26, 31 (1st

Cir. 1992))); Falk v. Wells Fargo Bank, N.A., 600 F. Supp. 3d 115, 118 (D. Mass. 2022) (“[P]ro

se plaintiffs are not insulated ‘from complying with procedural and substantive law.’” (quoting

Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997))). All plaintiffs, including pro se

plaintiffs, must “set forth factual allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal theory.” Wright v. Town of

Southbridge, No. 07-40305-FDS, 2009 WL 415506, at *2 (D. Mass. Jan. 15, 2009) (quoting

Adams v. Stephenson, No. 96-2266, 1997 WL 351633, at *1 (1st Cir. June 23, 1997)).

Without a minimally sufficient complaint, the defendant does not have “fair notice of

what the plaintiff’s claim is and the grounds upon which it rests.” Harihar v. Jeanne D’Arc

Credit Union, No. 20-12293-IT, 2021 WL 1617187, at *2 (D. Mass. Apr. 26, 2021) (quoting

Calvi v. Knox Cnty., 470 F.3d 422, 430 (1st Cir. 2006)).

B. Analysis

1. Claims Against the Lexington Defendants

On its face, the Complaint fails to provide a minimally sufficient factual basis for a claim

against the Lexington Police Department or any individual officers. To the extent that there is

any reference to particular acts or omissions, the Complaint does not provide sufficient

information or context to support a discernable claim.

“To assert a viable claim under 42 U.S.C. § 1983, a plaintiff must show: (1) that the

conduct complained of was committed by a person acting under color of state law; and (2) that

the conduct deprived the plaintiff of clearly established rights, privileges or immunities

guaranteed by the federal Constitution or laws of the United States.” Nollet v. Justices of the

Trial Ct. of Mass., 83 F. Supp. 2d 204, 210 (D. Mass. 2000). As the Supreme Court has noted:

An official sued under § 1983 is entitled to qualified immunity unless it is shown

that the official violated a statutory or constitutional right that was “clearly

established” at the time of the challenged conduct. And a defendant cannot be said

to have violated a clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in the defendant’s shoes would

have understood that he was violating it. In other words, “existing precedent must

have placed the statutory or constitutional question” confronted by the official

“beyond debate.”

Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014) (citations omitted) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)).

Plaintiff adequately alleges that the individuals she has named as Defendants were police

officers employed by the Lexington Police Department, which suffices to meet the first element

of a § 1983 claim. But nothing in the Complaint indicates that the officers acted in a way that

violated a clearly established constitutional or statutory right. Indeed, it is unclear what actions,

if any, Plaintiff alleges that the officers took, let alone that such actions violated a particular

clearly established right. Accordingly, the Complaint is subject to dismissal for failure to state a

claim.

2. Claims Against the Landlord Defendants

Plaintiff’s allegations regarding smoking by other tenants can, when read generously, be

understood as alleging a failure to accommodate a disability in violation of the reasonable

accommodation provisions of the ADA, 42 U.S.C. §§ 12101–12213, and the Fair Housing Act,

42 U.S.C. §§ 3601–3631, as amended by the Fair Housing Amendments Act (“FHAA”).

The FHAA defines discrimination to include “a refusal to make reasonable

accommodations in rules, policies, practices, or services, when such accommodations may be

necessary to afford [a handicapped individual] equal opportunity to use and enjoy a dwelling.”

42 U.S.C. § 3604(f)(3)(B). The First Circuit has outlined the elements of such a claim as follows:

To prevail on such a reasonable accommodation claim, a plaintiff must show [1] a

qualifying handicap, [2] the defendant’s actual or constructive knowledge of that

handicap, [3] a request for a specific accommodation that is both reasonable and

necessary to allow the handicapped individual an equal opportunity to use and

enjoy the particular housing, and [4] the defendant’s refusal to make the requested

accommodation.

Summers v. City of Fitchburg, 940 F.3d 133, 139 (1st Cir. 2019) (citing Astralis Condo. Ass’n v.

Sec’y, U.S. Dep’t of Hous. & Urban Dev., 620 F.3d 62, 67 (1st Cir. 2010)).

The Complaint fails to set forth particulars sufficient to support an FHAA claim.3 There

is an allegation of handicap (e.g., “asthma,” “Barrette’s esophagus”), of which Defendant

Ciampa was apparently aware (“Knowing that I have extreme sensitivities to all environmental

allergens[] . . .”), but it is unclear what accommodation Plaintiff requested, whether that request

was reasonable, or what accommodation (if any) was provided. See Docket No. 2-2, at 5.

Although Plaintiff does allege that Defendant Ciampa failed to “remove other tenants who are

compromising the oxygenated air [Plaintiff is] struggling to take in,” the Complaint does not

state whether Plaintiff requested such removal as an accommodation. See id.

With respect to Plaintiff’s claim that the Landlord Defendants failed to disclose that

Lexington Wine & Spirits was leasing, or would lease, space in the same complex in which

Plaintiff rented her apartment, Plaintiff fails to allege that the Landlord Defendants had a duty to

make any such disclosure. Nor does the Complaint suggest what might be the source of such a

duty.

IV. My Recommendation

For the reasons explained above, I recommend that the Court grant Defendants’ motions

to dismiss. However, given that Plaintiff is proceeding pro se, I recommend that the Court

dismiss Plaintiff’s Complaint without prejudice. I recommend that Plaintiff be permitted to file,

within thirty days of dismissal, an amended complaint that complies with Rule 8 of the Federal

Rules of Civil Procedure.

3 “For present purposes, the elements of reasonable accommodation claims under the FHAA and

the ADA do not differ in any meaningful respect.” Summers, 940 F.3d at 139. As such, for the

reasons stated above, the Complaint also fails to set forth particulars sufficient to support an

ADA claim.

I briefly review some of the requirements for filing an amended complaint, with which

Plaintiff must comply:

First, an amended complaint completely supersedes an original complaint. Brait Builders

Corp. v. Mass., Div. of Cap. Asset Mgmt., 644 F.3d 5, 9 (1st Cir. 2011). Accordingly, if Plaintiff

chooses to file an amended complaint, she must repeat anything from the original complaint that

she intends to include as part of the new, operative complaint. Similarly, the amended complaint

must be a standalone document; the Court will not consider factual allegations found elsewhere

in the record (e.g., in a cover sheet, affidavit, or letter).

Second, any amended complaint must comply with Federal Rule of Civil Procedure 8.

That is, it must include a “short and plain statement of the claim(s).” Fed. R. Civ. P. 8(a)(2).

Accordingly, the amended complaint “should at least set forth minimal facts as to who did what

to whom, when, where, and why—although why, when why means the actor’s state of mind, can

be averred generally.” Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68

(1st Cir. 2004). Those facts should be set forth in separately numbered paragraphs.4

/s/ Paul G. Levenson

Paul G. Levenson

Dated: November 1, 2024 U.S. MAGISTRATE JUDGE

4 The parties are advised that under the provisions of Federal Rule of Civil Procedure 72(b), any

party who objects to this recommendation must file specific written objections thereto with the

Clerk of this Court within 14 days of the party’s receipt of this Report and Recommendation.

The written objections must specifically identify the portion of the proposed findings,

recommendations, or report to which objection is made and the basis for such objections. The

parties are further advised that the United States Court of Appeals for this Circuit has repeatedly

indicated that failure to comply with Rule 72(b) will preclude further appellate review of the

District Court’s order based on this Report and Recommendation. See Keating v. Secretary of

Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Valencia-Copete, 792

F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega,

678 F.2d 376, 378–79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603

(1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).