Saldivar v. Racine

United States Court of Appeals

For the First Circuit

No. 15-1448

ELBA SALDIVAR,

Plaintiff, Appellant,

v.

DANIEL RACINE; THE CITY OF FALL RIVER,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Kayatta, Stahl, and Barron,

Circuit Judges.

Edward J. McCormick, III, with whom McCormick & Maitland was

on brief, for appellant.

Andrew J. Gambaccini, with whom Reardon, Joyce & Akerson,

P.C. was on brief, for appellee Daniel Racine.

Gary P. Howayeck, Office of the Corporation Counsel, City of

Fall River, for appellee the City of Fall River.

March 25, 2016

BARRON, Circuit Judge. Elba Saldivar appeals the

dismissal of her federal civil rights and state law negligence

claims against the City of Fall River, Massachusetts, and Fall

River Police Chief Daniel Racine. The District Court dismissed

those claims pursuant to Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim. We affirm.

I.

The allegations set forth in Saldivar's complaint1 are

very disturbing. As we are reviewing a dismissal for failure to

state a claim, we accept the complaint's factual allegations as

true and draw all reasonable inferences from those facts in favor

of Saldivar. See Gargano v. Liberty Int'l Underwriters, Inc., 572

F.3d 45, 48 (1st Cir. 2009). So read, the complaint offers the

following account.

In early June 2011, Elba Saldivar, a resident of Fall

River, contacted the Fall River Police Department and reported

that her child had been harassed at school. The Police Department

assigned Officer Anthony Pridgen to investigate the incident.

Pridgen arrived at Saldivar's apartment in his marked

police cruiser and in full uniform and told Saldivar he needed to

question her as part of his investigation. Saldivar allowed

Pridgen into her apartment.

1 The operative complaint in this case is the Second Amended

Complaint.

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Upon entering the apartment, Pridgen pulled out his

service handgun and pointed it at Saldivar. He then grabbed

Saldivar and assaulted, battered, and raped her. He told Saldivar

he would kill her and her children if she reported the assault.

Despite Pridgen's threats, Saldivar reported the assault

to the Police Department, and the Department conducted an

investigation. The investigation uncovered security camera

footage at Saldivar's housing complex that showed a police cruiser

parked next to one of the buildings in that complex and Pridgen

entering and leaving that building. A subsequent search of

Pridgen's police locker led to the seizure of various items,

including two condoms and two packages of "Extenze" tablets.

Pridgen resigned from his job as a Fall River police

officer on June 28, 2011. In September of that same year, the

Bristol County, Massachusetts, District Attorney's office informed

Saldivar that it would not prosecute Pridgen.

The complaint also sets forth the following allegations

concerning how Pridgen had been disciplined by the Police

Department on various occasions prior to the alleged assault.2 In

2The operative complaint lists, without elaboration, eleven

disciplinary actions taken against Pridgen. The defendants asked

the District Court to consider the disciplinary record itself, on

the ground that the record is central to Saldivar's claims. The

District Court appears to have done so. Because Saldivar does not

object to the District Court's having considered the disciplinary

record and discusses that record in her brief as if it were a part

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February 2007, he was suspended for thirty days -- a punishment

later reduced to a written warning and training -- for failing to

abide by Department policy in handling a domestic violence call.3

A few months later, in October 2007, Pridgen was suspended for

five days without pay for violating the Department's sick leave

policy. And, according to his disciplinary record, in January

2011, he was suspended for a day for violating the "[r]oll

call/[leave benefit] policy." Pridgen was also reprimanded seven

times between September 2003 and June 2011 for "[f]ailure to log

& submit [e]vidence [f]orm," "attention to duty," "absence from

duty/late," "cruiser accident," "pursuit policy," "tardiness," and

"reports."

Pridgen's final disciplinary action came in June of

2011, shortly after the alleged rape and assault. At that time,

he was suspended for five days without pay for allowing his license

to carry his service handgun to lapse for five years.4

of her complaint, we, too, consider the record as part of the

complaint.

3 Pridgen was charged with "fail[ing] to adequately obtain

pertinent information regarding the ongoing domestic situation and

the presence of firearms," "fail[ing] to properly search for and

seize potential firearms to alleviate the threat of serious

violence," "fail[ing] to give the victim . . . adequate notice of

her rights by handing and reading her a copy of the Fall River

Police Department's Domestic Violence Rights form," and

"clear[ing] the call, [k]nowing a domestic violence report was not

completed."

4 Saldivar obtained Pridgen's disciplinary record after she

filed this suit and before she filed the operative complaint, when

the District Court ordered the defendants "to produce forthwith

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Saldivar brought suit against Pridgen, Fall River Chief

of Police Daniel Racine, and the City of Fall River for (1) assault

and battery by Pridgen; (2) violation of the Massachusetts Civil

Rights Act by Pridgen and the City; (3) violation of 42

U.S.C. § 1983 by all defendants, and (4) negligent hiring,

training, and supervision by the City.

Pridgen never entered an appearance in this case, and

the District Court granted default judgment of $600,000 to Saldivar

on her claims against him. Racine and the City then moved to

dismiss all of Saldivar's claims against them for failure to state

a claim. See Fed. R. Civ. P. 12(b)(6). The District Court granted

those motions and dismissed the complaint. See Saldivar v.

Pridgen, 91 F. Supp. 3d 134 (D. Mass. 2015).

Saldivar appeals the dismissal of her § 1983 claim

against Racine, her § 1983 claim against the City, and her

negligent hiring, training, and supervision claim against the

City.5

II.

We review the District Court's dismissal for failure to

state a claim de novo, and we may affirm "on any ground made

manifest by the record." Decotiis v. Whittemore, 635 F.3d 22, 28

the entire disciplinary record of Officer Pridgen to the

Plaintiff."

5 Saldivar does not appeal the dismissal of her claim against

the City for violation of the Massachusetts Civil Rights Act.

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(1st Cir. 2011) (quoting Roman-Cancel v. United States, 613 F.3d

37, 41 (1st Cir. 2010)).

To survive a motion to dismiss, Saldivar's complaint

"must contain sufficient factual matter . . . 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)). In evaluating whether a complaint states a

plausible claim, we "perform [a] two-step analysis." Cardigan

Mtn. Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015). At

the first step, we "distinguish the complaint's factual

allegations (which must be accepted as true) from its conclusory

legal allegations (which need not be credited)." Id. (quoting

García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir.

2013)). At step two, we must "determine whether the factual

allegations are sufficient to support the reasonable inference

that the defendant is liable." Id. (quoting García-Catalán, 734

F.3d at 103) (internal quotation marks omitted).

This standard is "not akin to a 'probability

requirement,' but it asks for more than a sheer possibility that

a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 556). "Applying the plausibility standard is

'a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.'" Decotiis, 635 F.3d

at 29 (quoting Iqbal, 556 U.S. at 679).

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A.

We begin with Saldivar's § 1983 claim against Racine.

Section 1983 provides a cause of action when an individual, acting

under color of state law, deprives a person of constitutional

rights. See 42 U.S.C. § 1983.

Saldivar's complaint does not allege that Racine

directly deprived her of such rights. But Saldivar is correct

that a supervisory official like Racine may be held liable

under § 1983 for the unconstitutional behavior of a subordinate

like Pridgen. Of course, a supervisor is not liable under § 1983

for the actions of a subordinate on a respondeat superior theory.

See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st

Cir. 1994). Rather, the supervisor is liable for the subordinate's

actions if the subordinate's behavior led to a constitutional

violation and if "the supervisor's action or inaction was

affirmatively linked to that behavior in the sense that it could

be characterized as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to deliberate

indifference." Estate of Bennett v. Wainwright, 548 F.3d 155,

176-77 (1st Cir. 2008) (brackets omitted) (quoting Pineda v.

Toomey, 533 F.3d 50, 54 (1st Cir. 2008)).

The District Court dismissed Saldivar's claim against

Racine on the ground that Saldivar had failed to plausibly allege

that Racine was deliberately indifferent. The District Court

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explained that it reached that conclusion because the complaint

failed to allege facts that would plausibly show that Racine had

the requisite notice of the risk that Pridgen would assault

Saldivar. See Saldivar, 91 F. Supp. 3d at 137-38.

Our precedent requires that same conclusion. In order

for a police supervisor to be deemed "deliberately indifferent,"

the supervisor must have "actual or constructive knowledge" of a

"grave risk of harm" posed by the subordinate and fail to take

"easily available measures to address the risk." Camilo-Robles v.

Hoyos, 151 F.3d 1, 6-7 (1st Cir. 1998). The complaint does allege

that Pridgen had a number of disciplinary violations prior to the

alleged assault and rape. Those violations do not, however,

include any that would indicate that Pridgen had any propensity

for violence or for any other sufficiently related conduct. This

absence renders speculative any inference that one might otherwise

arguably draw that any officer who would commit such an offense

likely had a record that would suffice to give such an indication.

Nor does Saldivar contend otherwise. The significance

she attributes to the lengthy record of violations appears to be

that they indicate that Pridgen "had a propensity for not following

police regulations" and thus might not follow police regulations

in the future. But, under our precedents, being alert to that

possibility is not sufficient to make the supervisor liable for

the harm caused by Pridgen on which Saldivar's § 1983 claim is

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based.6 Thus, the complaint's recitation of Pridgen's past

disciplinary violations does not show that it was plausible that

Racine had notice that Pridgen posed a grave risk of harm.

Saldivar does contend that the fact that Pridgen did not

have an active firearm license was sufficient -- at least given

his past violations -- to put Racine on the requisite notice. "As

it is a crime in Massachusetts to carry a firearm without a

license," Saldivar argues, "it is . . . foreseeable that an

individual who carries a handgun without a license, will use it in

the commission of a crime." But, based on the precedents that we

have cited, we cannot say that the fact that Pridgen did not have

a license for his gun makes it plausible that Racine was on notice

6 See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 93

(1st Cir. 1994) (concluding, on a motion for summary judgment,

that five complaints levied against a police officer did not

provide a superior officer with "the requisite notice" to support

a claim of deliberate indifference for the assault of an arrestee

where "[t]he five previous complaints stemmed from incidents

completely unrelated to the present one" and thus "could not have

alerted [the supervisor] to the fact that [the officer] had a

propensity to assault citizens"); see also Ramírez-Lluveras v.

Rivera-Merced, 759 F.3d 10, 21 (1st Cir. 2014) (holding, on a

motion for summary judgment, that an officer's seven instances of

misconduct over a nearly fourteen-year period, including a

complaint of assault on a motorcyclist in 2004, were "not

sufficient to put supervisors on notice that he presented

a . . . 'grave risk' of shooting an arrestee"); cf. Gutierrez-

Rodriguez v. Cartagena, 882 F.2d 553, 563-64 (1st Cir. 1989)

(upholding a jury verdict finding a supervisor liable under § 1983

for a policeman's shooting car passengers while on duty where that

supervisor had knowledge, due to thirteen citizen complaints, of

the policeman's frequently brutal behavior, and yet took no action

concerning those complaints).

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that there was a "grave risk" that the Officer would use the weapon

to commit a violent crime -- or would otherwise engage in violent

conduct -- while on duty.7

We recognize that we are reviewing a dismissal of a

complaint and thus that the plaintiff need not prove her

allegations. At this early stage in the litigation, she need only

make the kind of allegations that would suffice under the standard

set forth in Iqbal, 556 U.S. 662. Indeed, as we have noted,

seemingly all of our analogous § 1983 supervisory liability cases

have been resolved at summary judgment, or at other later stages

of the litigation. Nonetheless, under the Iqbal standard, the

complaint must set forth facts that make the § 1983 claim

plausible. Id. at 678. And, here, we do not believe the facts

that have been set forth suffice to make it plausible that the

supervisor -- Racine -- is liable under § 1983 for the horrific

conduct by Officer Pridgen that is alleged.

7 In connection with her negligence claim, Saldivar does make

an argument regarding the Massachusetts gun licensing process. We

address that argument below, in discussing Saldivar's negligence

claim. Although Saldivar does not make this argument in support

of her § 1983 claim, were we to consider the argument in evaluating

that claim, our decision would not change. Similarly, in

connection with her negligence claim, Saldivar references the

complaint's allegations regarding the condoms and Extenze tablets

found in Pridgen's locker and argues that those allegations make

that claim plausible. She does not, however, make any argument

that those allegations make her § 1983 claims plausible, and we

conclude that those allegations also would not change our

conclusion.

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B.

Saldivar also appeals the dismissal of her § 1983 claim

against the City for the harm she suffered from the assault by

Officer Pridgen. She relies for this claim on Monell v. Dep't of

Soc. Servs., 436 U.S. 658 (1978).

Monell held that although a municipality may not be held

liable under a theory of respondeat superior for an employee's

constitutional violation, it may be held liable when "execution of

[the municipality's] policy or custom . . . inflicts the injury"

and is the "moving force" behind the employee's constitutional

violation. Id. at 694. "Official municipal policy includes,"

among other things, "the acts of [the municipality's] policymaking

officials." Connick v. Thompson, 563 U.S. 51, 61 (2011); see also

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (holding

that government policy or custom may be established by "a single

decision by municipal policymakers under appropriate

circumstances").

Saldivar argues that she has stated a plausible Monell

claim because her complaint alleges that Racine was acting as a

final policymaker for the City when he made decisions regarding

Pridgen's retention, supervision, and training in response to

Pridgen's disciplinary violations. But even assuming that the

allegation that Racine is a final policymaker is plausible, that

allegation is not enough. A City is liable under Monell for the

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acts of a final policymaker only if those acts constitute

deliberate indifference. See Connick, 563 U.S. at 61; Young v.

City of Providence, 404 F.3d 4, 26 (1st Cir. 2005). And so here,

too, Saldivar's § 1983 claim may survive the motion to dismiss

only if the complaint plausibly alleges that Racine was

deliberately indifferent to the grave risk of harm that Pridgen

posed. But that claim is not plausible for the reasons we have

just given regarding the limited allegations contained in the

complaint. And thus here, too, we agree with the District Court

that the claim cannot go forward.8

C.

Finally, Saldivar appeals the dismissal of her

negligence claim against the City, which is brought under the

Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258. See id.

§ 2 ("Public employers shall be liable for injury or loss of

property or personal injury or death 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 . . . ."). To state a negligence claim under

Massachusetts law, a plaintiff must allege that (1) the defendant

8

Because we conclude that Saldivar's § 1983 claims are not

plausible as alleged, we need not address the defendants' arguments

that Racine is entitled to qualified immunity or that Pridgen was

not acting under color of state law when he assaulted Saldivar.

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owed the plaintiff a duty of reasonable care; (2) the defendant

breached that duty; (3) damage resulted; and (4) the defendant's

breach caused that damage. See Jupin v. Kask, 849 N.E.2d 829,

834-35 (Mass. 2006). In addition, under Massachusetts law, a

determination "[w]hether negligent conduct is the proximate cause

of an injury depends . . . on whether the injury to the plaintiff

was a foreseeable result of the defendant's negligent conduct."

Kent v. Commonwealth, 771 N.E.2d 770, 777 (Mass. 2002).

Saldivar argues that Racine breached a duty to her by

not properly training Pridgen, not requiring him to be directly

supervised, and by not terminating his employment, notwithstanding

his lengthy record of disciplinary violations. Assuming the

complaint plausibly alleges that Racine was negligent in his

response to those violations, the question remains whether that

negligence was a proximate cause of the harm to Saldivar.

Massachusetts law is admittedly sparse with respect to

what constitutes a foreseeable result in circumstances directly

analogous to those present here. But, as a general matter, the

Massachusetts Supreme Judicial Court has held that where the kind

of harm alleged is violent, the violent nature of that harm must

be a reasonably foreseeable result of the defendant's negligence

in order for that defendant to be liable for that harm.9 Moreover,

9 See Carey v. New Yorker of Worcester, Inc., 245 N.E.2d 420,

454 (Mass. 1969) ("The specific kind of harm need not be

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in cases in which a plaintiff alleges that an employer is liable

under a theory of negligent supervision for the intentional tort

of an employee, Massachusetts courts have required that the

employer have known, or at least should have known, that the

employee might harm someone in the same general manner in which

the employee is alleged to have harmed the plaintiff.10

foreseeable as long as it was foreseeable that there would be harm

from the act which constituted the negligence, provided it was

foreseeable that there would be violence toward others."); see

also Flood v. Southland Corp., 616 N.E.2d 1068, 1075-76 (Mass.

1993) ("A jury would be warranted in such circumstances in

determining that a risk of harm, the stabbing of someone, was

reasonably foreseeable. The way in which the stabbing occurred

and the fact that the plaintiff might be the one to be harmed need

not have been reasonably foreseeable." (citation omitted)).

10 See, e.g., Foley v. Bos. Hous. Auth., 555 N.E.2d 234, 236-

37 (Mass. 1990) (holding that a jury could not find that it was

foreseeable to the employer that an employee might attack the

plaintiff (a fellow employee) where "[t]here [was] no showing in

the record of threats by employees, or a pattern of incidents

involving employees, that reasonably would put the [employer] on

notice that [the plaintiff] could be the target of an attack by a[

fellow] employee"); Foster v. The Loft, Inc., 526 N.E.2d 1309,

1311-13 (Mass. App. Ct. 1988) (holding that a jury could find that

the assault was foreseeable where a customer alleged that he had

been assaulted by the defendant's employee and that the defendant

knew that the employee had a criminal record but did not take

further action to determine whether that record would compromise

the safety of customers and where the environment in which the

employee worked posed a high potential for violence); Beal v.

Broadard, 19 Mass. L. Rptr. 114, 2005 WL 1009632, at *4-5 (Mass.

Sup. Ct. 2005) (holding that a jury could find that an alleged

sexual assault perpetrated by a church's "ministerial servant" was

foreseeable to an elder of that church, where that elder had

knowledge of the perpetrator's "prior incidents of sexual

dangerousness," but that a jury could not find that the assault

was foreseeable to the church's state chapter, where "[t]he record

contain[ed] not a scintilla of evidence that anyone ever informed

[that defendant] of [the perpetrator's] purported sexual

dangerousness prior to the alleged instances of abuse").

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Given the state of Massachusetts law, Saldivar's

allegations regarding Pridgen's past disciplinary violations are

not enough to plausibly allege that the harm in this case was

reasonably foreseeable to Racine. As we have explained, none of

those violations appears to have involved violent behavior, nor

does Saldivar allege that they reflect violent incidents. And so

we conclude that the City is right that Pridgen's prior

disciplinary violations are not sufficient to make out a plausible

claim that Racine reasonably foresaw that the limited nature of

his response to those violations would cause "the same general

kind of harm" alleged here. See Jupin, 849 N.E.2d at 837 n.8.

The complaint does include other facts that, in

conjunction with the disciplinary record, Saldivar argues put

Racine on notice of the risk that Saldivar would engage in conduct

that would cause the same general kind of harm alleged in this

case. The complaint alleges that Pridgen had two condoms and two

packages of Extenze tablets in his police locker and that Pridgen

had let his firearm license lapse for five years. The condoms and

Extenze tablets, Saldivar argues in her brief, raise the question

whether the Police Department knew that Pridgen had those items in

his locker and whether there was any Department prohibition on

those items being at the station. As for the gun, Saldivar argues

that it is reasonably foreseeable that someone with an unregistered

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gun would "use it in the commission of a crime," as Pridgen did

here.

But the complaint does not allege that Racine knew that

Pridgen had condoms and Extenze tablets in his locker or that he

was prohibited by Department policy from having them there. And

we do not believe that the allegations in the complaint regarding

the mere presence of those items -- absent any other facts that

might illuminate their significance -- suffice to make it plausible

that it was reasonably foreseeable to Racine that Pridgen would

engage in violent conduct. That is true even if we consider them

in connection with the complaint's other allegations, as the

disciplinary record does not reveal violations for conduct of the

"same general kind of harm" alleged here. See id. at 837 n.8.

Nor, for reasons we have explained in addressing Saldivar's § 1983

claims, is it plausible that Racine's constructive knowledge of

Pridgen's failure to keep his gun license up-to-date made it

reasonably foreseeable that Pridgen would engage in such conduct.

Saldivar does make the additional contention in her

brief that "license to carry in Massachusetts is discretionary and

is issued only to those citizens deemed not to be a threat to

society or who might use it in the commission of a crime." The

suggestion -- though Saldivar does not develop the argument --

appears to be that Racine should have known of Pridgen's violent

tendencies, as those violent tendencies would have been identified

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had Racine made sure that Pridgen's gun license was up-to-date.

But Saldivar did not include in her complaint the facts she now

wants us to "note[]" regarding the workings of the Massachusetts

licensing process for firearms.11 And because the complaint we

have before us does not state any facts about how the licensing

process works, the complaint necessarily fails to state facts that

would suggest that the process would have identified, in

particular, Pridgen's violent tendencies. For these reasons, we

conclude that Saldivar's negligence claim, as pled, is too

speculative to survive a motion to dismiss.

III.

We end by emphasizing that to survive a motion to dismiss

a claim must merely be "plausible on its face." Iqbal, 556 U.S.

at 678. Moreover, we have said that in cases "in which a material

part of the information needed is likely to be within the

defendant's control," "'some latitude may be appropriate' in

applying the plausibility standard." García-Catalán, 734 F.3d at

104 (quoting Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st

Cir. 2012)). In such cases, we have said that "it is reasonable

to expect that 'modest discovery may provide the missing link'

11

The defendants, for their part, contend without citation

that the "licensure . . . would amount to nothing more than the

ministerial task of a renewal application."

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that will allow the appellant to go to trial on her claim." Id.

(quoting Menard, 698 F.3d at 45).

But the missing link that is common to the claims at

issue in the case before us has not been alleged "upon information

and belief," as it was in Menard, see 698 F.3d at 44 & n.5, and is

not plausible simply by appeal to common sense, as in García-

Catalán, see 734 F.3d at 103. Here, the gap between the

allegations in the complaint and a plausible claim is wider than

it was in those cases. Importantly, Saldivar was allowed modest

discovery before she filed her amended complaint, namely access to

Pridgen's disciplinary record, upon which Saldivar's allegations

are based. There is no indication from that record, however, that

any of the violations involved violent conduct.

Simply put, the complaint alleges conduct by a member of

the City police force that is shocking. But the complaint seeks

to hold the officer's supervisor and the City liable. Absent more

facts than the complaint contains, we cannot discern a plausible

claim for doing so under § 1983 or under the law of negligence in

Massachusetts. Accordingly, the decision of the District Court

dismissing Saldivar's complaint is affirmed.

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