United States District Court, D. Massachusetts
JOSE A. ALMEIDA, Plaintiff,
POLICE OFFICER JOHN ROSE, Defendant
Jose A. Almeida, Plaintiff, Pro se, South Walpole, MA,.
For Police Officer John Rose, Defendant: Gary P. Howayeck, LEAD ATTORNEY, Fall River, MA.
MEMORANDUM AND ORDER
PATTI B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE.
Plaintiff Jose A. Almeida brings this action in which he alleges that he was wrongfully prosecuted for armed robbery, a charge for which he was ultimately acquitted. He claims that, because he was arrested without probable cause, he was unlawfully detained from his arrest on September 15, 2008 through his eventual acquittal at a second trial in April 2010.
The only claim that remains is one under 42 U.S.C. § 1983 against Fall River Police Officer John Rose for malicious prosecution in violation of the plaintiff's right under the Fourth Amendment not to be arrested without probable cause. See Dec. 9, 2013 Memorandum and Order (docket entry #39, pp. 30-31). Officer Rose has filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons stated below, the Court GRANTS the motion.
II. Factual Background
On August 7, 2008, Officer Rose and other officers of the Fall River Police Department were dispatched to Saxon Street after having received a report of an armed robbery. Officer Rose interviewed the victim, Afif Elbaba, who stated that he had
received a call from his friend Troy Parker. Parker stated that either he or a friend was interested in purchasing some tobacco from Elbaba. Elbaba agreed and arrived at the designated location at the appointed time. He reported that he was then robbed at gunpoint by a black male, who took $9,000 in cash and ran away.
The victim then went to a neighbor's house, where a 911 call was made by the neighbor. During later hearings and trials, Elbaba offered differing testimony as to whether he or the neighbor spoke during this call and what description, if any, of the perpetrator was relayed to the 911 operator. Officer Rose reported that Elbaba described the perpetrator as a black male, possibly in his early twenties, approximately 5'8" tall, medium build, brown eyes, brown bushy hair, and wearing dark clothing. The defendant also wrote in his report that he spoke to three witnesses in the area of the crime. One stated that he had seen a small dark colored Nissan or Japanese make four-door sedan traveling at a high rate of speed. Two others reported that they had seen a black male in his early twenties, with brown hair and possibly dread locks, unshaven, wearing a red hat, dark colored sweat shirt, dark gray sweat pants, and running.
After speaking to Elbaba and the witnesses, the police put out a BOLO (Be On the Look-Out) with a description of the suspect and vehicle. Two other officers discovered that Parker, who was known to the Fall River Police Department, " had an associate by the name of Jose Almeida," who was also known to the Fall River Police Department. According to Officer Rose's report, Almeida drove a 1995 green Subaru Legacy and had been involved with an incident with a firearm. A BOLO was put out for Almeida. Officer Rose and other officers then attempted to locate Parker and Almeida but did not find them at their last known addresses.
Later that evening, Elbaba came to the Fall River police station to view a photo array. At some point prior to the photo array, Elbaba spoke with Officer Rose in the patrol car. Almeida alleges that at this time, Officer Rose told Elbaba that he was going to show him a picture of the man who robbed him. The plaintiff implies that Officer Rose then proceeded to show Elbaba a picture of Almeida on a computer in the police car. See SAC, ¶ ¶ 20, 45. Almeida submitted a page of the transcript of the probable cause hearing in which Elbaba offers testimony about this interaction:
[Elbaba]:. . . this is Troy. I know him. So he said, okay, I'm gonna show - show you the guy who robbed you. You know, [indiscernible at 2:39:24 p.m. -speech of ...