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Cardoso v. City of Brockton

United States District Court, D. Massachusetts

November 26, 2014


Argued: November 25, 2014.

Page 180

Aristides Cardoso, Plaintiff, Pro se, Brockton, MA.

For City of Brockton, Linda M. Balzotti, City of Brockton, Emanuel Gomes, BPD Chief of Police, Robert E. Grayson, Brockton Police Officer, Christopher LaFrance, Lieutenant, Defendants: Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, Boston, MA.

Page 181



Aristides Cardoso, proceeding pro se, filed this blunderbuss 82-page, 16-count Amended Complaint against the City of Brockton, its Mayor, its Chief of Police, and a patrol officer claiming that a municipal custom of " engag[ing] in a pattern or practice of subjecting Cape Verdeans and African Americans to excessive force, false charges or arrest, and improper searches and seizures" caused his false arrest by defendant Robert Grayson incident to a traffic stop on March 1, 2010.[1] Compl. ¶ 1; Pl. Mem. at 1-2. More specifically, Cardoso (who is of Cape Verdean descent) alleges that Grayson arrested him in retaliation for his filing a similar complaint against another Brockton police officer.[2] As

Page 182

against Grayson in his personal capacity,[3] the Amended Complaint alleges: violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments, 42 U.S.C. § 1983 (Count II); violations of the State Civil Rights Act, Mass. Gen. Laws ch. 12, § § 11H and 11I, by way of threats, intimidation and coercion violative of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments (Count VI); conspiring to violate the State Civil Rights Act (Count VII); negligent infliction of emotional distress (Count VIII); intentional infliction of emotional distress (Count IX ); malicious prosecution (Count XII); abuse of process (Count XIII); retaliation (Count XIV); defamation, slander, libel, and injurious falsehood (Count XV); negligence (Count XVI).[4]

Discovery deadlines have expired and Grayson and Cardoso now cross move for summary judgment on all counts of the Amended Complaint.


The facts, as best the court can discern them, are as follows.[5] On March 1, 2010, while driving in Brockton, Cardoso was observed by Officer Grayson to fail to heed a stop sign at the corner of Spring and Ash streets. Grayson also noted a broken brake light on Cardoso's vehicle.[6] Grayson signaled for Cardoso to stop intending to issue him a citation for the failure to stop and to inform him of the malfunctioning brake light. According to Grayson, as he was writing the citation, Cardoso became belligerent, accusing him of being a racist with an animus towards Cape Verdeans.

Page 183

Grayson states that Cardoso's increasingly obstreperous behavior was attracting the attention of passing motorists, thus impeding the flow of traffic. Grayson ultimately arrested Cardoso for disorderly conduct. Lieutenant LaFrance was the " Approving Officer" who read Cardoso his Miranda rights at the Brockton police station. Compl. - Ex. A at 4.

Cardoso's version of the arrest differs dramatically. Cardoso states that he " did not run the stop sign" and that " [w]hen Officer Grayson returned from the police cruiser [he] told [Cardoso] to get out of the car" and arrested him immediately. Cardoso Aff. ¶ ¶ 19-22. According to Cardoso, Grayson informed him " that he was under arrest because [he had] filed a Complaint against Officer Stanley David." Id. ¶ 20. Cardoso states that he was booked at 12:44 p.m. and " held at the police station for more than six hours." Id. ¶ ¶ 28-29. Cardoso afterwards moved from Brockton because " he is frightened that [he] will be shot and killed by [the] Brockton Police . . . ." Id. ¶ ¶ 32-33. He claims to suffer " post-traumatic stress" as a result of the arrest, manifested by " anxiety and depression, nightmares, headaches, and nausea." Id. ¶ 37.


Summary judgment is warranted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. " A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." Id., quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (internal quotation marks omitted). " A fact is material if it has the potential of determining the outcome of the litigation." Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008). To defeat a motion for summary judgment, evidence offered by the non-movant " must be significantly probative of specific facts." Perez v. Volvo Car Corp., 247 F.3d 303, 317 (1st Cir. 2001), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).[7] Under Local Rule 56.1, " [m]otions for summary judgment shall include a concise statement of the material facts of record as to which the moving party contends that there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation." [8]

Let me turn first to Count II, which alleges violations of the Federal Civil Rights Act. State and local police officers who commit constitutional torts while acting " under color of state law" may be sued for money damages under 42 U.S.C. § 1983. The only plausible allegation of a constitutional violation set out in the Amended Complaint, as supplemented by Cardoso's Statement of Facts, is his arrest by Grayson allegedly without probable cause in violation of the Fourth Amendment.[9] Street v. Surdyka, 492 F.2d 368, 372-373

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(4th Cir. 1974) (" There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause." ). A probable cause analysis entails " 'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-471, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). " When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would 'warrant a man of reasonable caution in the belief' that an offense has been committed." Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), quoting Carroll v. U.S., 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925). " The only relevant facts are those known [or imputed] to the officer. When these facts are in reasonable dispute, the fact-finder must resolve the dispute. . . . However, when the underlying facts claimed to support probable cause are not in dispute, whether those 'raw facts' constitute probable cause is an issue of law . . . ." Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (internal citation omitted); see also Ornelas v. United States, 517 U.S. 690, 696-697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Here, because the underlying facts surrounding the arrest are in dispute, the resolution of the issue must be submitted in the first instance to the jury as the finder-of-fact.[10]

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The State Civil Rights Act claim (Count VII) stands, however, on a different footing than the Federal Act as it contains two additional elements: (1) " by means of threats, intimidation, or coercion," and (2) (because it is plead as a conspiracy) a tortious agreement. The only coercive act plead is the arrest itself, which, even if mistaken in its premise, is a privileged act on the part of a commissioned police officer, and by definition cannot by itself constitute a civil rights violation. Cf. Commonwealth v. Moreira, 388 Mass. 596, 601, 447 N.E.2d 1224 (1983). A conspiratorial agreement also by definition requires an undertaking among two or more persons. See Kurker v. Hill, 44 Mass.App. Ct., 184, 188, 689 N.E.2d 833 (1998). Nowhere in the pleadings is it plausibly alleged that Grayson in arresting Cardos0 was acting in concert with any other named individual. Consequently, this Count will be dismissed.

The remaining claim (Count XV) alleges that Grayson " defam[ed], slander[ed] and libel[ed]" Cardoso. To prove defamation Cardoso must establish that " the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either caused economic loss or is actionable without proof of economic loss." White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034 (2004). Here there is no allegation of an actual " statement" involving Cardoso's reputation that was published in any context other than the words used by Grayson to inform Cardoso that he was being placed under arrest.[11] Consequently, this Count will be dismissed as well.


For the foregoing reasons, all claims brought against the City of Brockton, the former Mayor, and the Chief of Police of the City of Brockton are BIFURCATED and STAYED. All claims against Christopher LaFrance are DISMISSED with prejudice. The court further dismisses the following Counts brought against Robert Grayson with prejudice: Counts II (as to claims brought under the First, Second, Fifth, Eighth, and Fourteenth Amendments to the Constitution), VI, VII, VII, IX, XIII, XIV, XV, and XVI. The section 1983 false arrest claim (Count II based on the Fourth Amendment) and the malicious prosecution claim (Count XII) will be set for trial before a jury.


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