United States District Court, District of Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Plaintiff James Sanders (“Sanders”) alleges that on the night of June 9, 2011, he was shot in the back by Boston police officer Stanley Demesmin (“Demesmin”). Sanders contends that the shooting was unjustified and brings a variety of claims against Demesmin and the City of Boston (“the City”), the Boston Police Department (“BPD”) and former Boston Police Commissioner Edward F. Davis, III (“Commissioner Davis”) (collectively, “the municipal defendants”). Pending before the Court is a motion to dismiss some but not all of the claims against the municipal defendants.
According to the amended complaint, on June 9, 2011, Officer Demesmin observed what he believed was an illegal drug transaction involving Sanders, after which he pursued Sanders on foot. Demesmin was in plain clothes and Sanders alleges that he did not identify himself as a police officer. After running for approximately one city block, Sanders was struck by a motor vehicle and fell to the ground. Thereafter, Demesmin attempted to subdue Sanders without holstering his service weapon and shot Sanders in the back during the physical struggle.
Sanders alleges that: Demesmin violated his right to be free from excessive force under 42 U.S.C. § 1983 (Count I); the City, BPD and Commissioner Davis violated his right to be free from excessive force under 42 U.S.C. § 1983 by failing properly to train and supervise Officer Demesmin (Count II); Demesmin, the City and BPD committed assault and battery (Count III); Demesmin, the City and BPD committed intentional infliction of emotional distress (Count IV); Demesmin, the City and BPD were negligent (Count V); and Demesmin, the City and BPD are liable for negligent infliction of emotional distress (Count VI).
Sanders filed his initial complaint in the Massachusetts Superior Court for Suffolk County on November, 15, 2013, after which it was removed by defendants to this Court. After Demesmin’s initial answer and a motion to dismiss by the City, the Court allowed Sanders’ motion for leave to file an amended complaint which he did on May 5, 2014.
Defendant Demesmin answered the amended complaint by denying all substantive allegations. In June, 2014, the municipal defendants filed a motion to dismiss all counts against BPD and Commissioner Davis and Counts II, III, IV and VI against the City. The municipal defendants argue that (1) BPD is a subsidiary of the City and is thus an improper defendant, (2) a suit against Commissioner Davis in his official capacity is the functional equivalent to a suit against the City and (3) plaintiff Sanders has failed to state a claim upon which relief can be granted on the remaining counts. The municipal defendants have not moved to dismiss Count V (negligence). At the same time, the City filed a partial answer to the amended complaint and denied all substantive allegations related to Count V (negligence).
Plaintiff Sanders has filed an opposition to the motion to dismiss with respect to Count II (§ 1983 claim against the municipal defendants) and Count VI (negligent infliction of emotional distress). Plaintiff does not contest those portions of the motion to dismiss which relate to the other counts.
On July 30, 2014, the Court held a hearing on the motion to dismiss, after which it took the motion under advisement.
II. Motion to Dismiss by Defendants City of Boston, Boston Police Department and Commissioner Edward F. Davis, III
In his response to the municipal defendants’ motion to dismiss, Sanders agrees that (1) BPD is not an entity that can be the target of a lawsuit because it is part of the City of Boston and (2) the claim against Commissioner Davis in his official capacity is the functional equivalent of a claim against the City. In addition, Sanders concedes that the City cannot be held liable for intentional torts under Massachusetts state law.
The Court will therefore dismiss all counts against BPD, all counts against Commissioner Davis and Counts III and IV against the City. Accordingly, the only counts in dispute at this juncture are plaintiff’s claims against the City under § 1983 (Count II) and for negligent infliction of emotional distress (Count VI).
A. Count II: § 1983 Claim against the City of Boston for Failure to Train or Supervise
To establish municipal liability for a constitutional violation by one of its officers, “a plaintiff must show that a policy or custom of the city led to the constitutional deprivation alleged.” Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir. 1989) (citing Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978)). In the First Circuit, a plaintiff must demonstrate “first, that plaintiff’s harm was caused by a constitutional violation, and ...