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Senna v. Ciccone

United States District Court, D. Massachusetts

February 23, 2015

RICHARD SENNA, Plaintiff,
v.
RICHARD CICCONE, KEVIN SWAIN, KEVIN VIVEIROS, ROBERTO NUNES, TOWN OF FAIRHAVEN, CITY OF NEW BEDFORD and MICHAEL MELLO, Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Plaintiff Richard Senna ("Senna") has filed this lawsuit pursuant to 42 U.S.C. § 1983 against Defendants Richard Ciccone ("Ciccone"), Kevin Swain ("Swain"), Kevin Viveiros ("Viveiros"), Roberto Nunes ("Nunes"), Michael Mello ("Mello"), the town of Fairhaven ("Fairhaven") and the city of New Bedford ("New Bedford"), alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution as to Ciccone, Swain, Viveiros, Mello and/or Nunes (Count I), the town of Fairhaven (Count II) and the city of New Bedford (Count III) as a result of his allegedly unconstitutional arrest. D. 4 (Am. Compl.). Defendants have moved to dismiss. D. 9; D. 11; D. 26. For the reasons stated below, the Court DENIES the motion as to Ciccone, Swain and Viveiros, D. 9, ALLOWS the motion as to Fairhaven, D. 11, and ALLOWS IN PART and DENIES IN PART the motion as to New Bedford, Mello and Nunes, D. 26.

II. Standard of Review

In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court asks whether the complaint offers "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a plausible claim, a complaint need not contain detailed factual allegations, but it must recite facts sufficient to "raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true [even if doubtful in fact]." Twombly, 550 U.S. at 555. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). First, the Court must distinguish between factual and conclusory legal allegations in the complaint. Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012). Second, taking the plaintiff's allegations as true, the Court must draw "the reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). However, "[i]n determining whether a [pleading] crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.'... This context-specific inquiry does not demand a high degree of factual specificity.'" Garciá-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (internal citations omitted).

III. Factual Background

Unless otherwise noted, the facts are as described in Senna's amended complaint, D. 4. On May 1, 2013, Senna was waiting in the lobby of the New Bedford District Courthouse for a hearing in a criminal matter in which he was the defendant. Id . ¶¶ 10-11. Ciccone, Swain and Viveiros, all Fairhaven police officers, were also waiting in the same area to testify against Senna, Ciccone as the alleged victim and Swain and Viveiros as investigating officers. Id . Mello was on duty as the New Bedford Police officer assigned as the court officer for the police department to the courthouse. Id . ¶ 12.

Senna alleges that Ciccone, Swain and/or Viveiros, acting jointly and severally, with the intention of using their status as police officers to influence and instigate Senna's seizure, falsely informed Mello that Senna had taken their pictures with his cell phone while all involved were in the courthouse lobby, in violation of Massachusetts's witness intimidation statute, Mass. Gen. L. c. 268 § 13B. Id . ¶ 13. Senna further alleges that Mello, upon hearing the allegations by Ciccone, Swain and/or Viveiros, informed Senna that he was under arrest. Id . Thereafter, Officer Nunes, also of the New Bedford police department, was dispatched to the courthouse. Id . Nunes spoke with Mello, Ciccone, Swain and Viveiros, and then arrested Senna. Id . ¶ 14-15. Nunes transported Senna to the New Bedford police station, where Senna was booked and then transported to jail. Id . ¶ 15-16. He was held overnight and arraigned the next day on a complaint charging him with a violation of the witness intimidation statute. Id. at 16. The complaint was later dismissed at the request of the Commonwealth. Id.

IV. Procedural History

Senna filed this lawsuit on July 2, 2014, D. 1, and amended his complaint on July 13, 2014, D. 4. The town of Fairhaven and the Fairhaven officers, Ciccone, Swain and Viveiros, moved to dismiss, D. 9; D. 11, followed by a motion to dismiss by the city of New Bedford, Mello and Nunes, D. 26. The Court heard the parties on the pending motions on January 7, 2015 and took these matters under advisement. D. 36.

V. Discussion

A. Claims Against the Fairhaven and New Bedford Police Officers (Count I)[1]

Senna invokes § 1983 to ground his claims. "Section 1983 requires three elements for liability: deprivation of a right, a causal connection between the actor and the deprivation, and state action." Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009). Senna alleges Ciccone, Swain and Viveiros, the Fairhaven police officers, falsely accused him of witness intimidation and that Mello and Nunes, the New Bedford police officers, arrested him based on this false information and absent probable cause, in "violation of the rights of the Plaintiff to be free from unreasonable searches and seizures, as guaranteed to him under the 4th and 14th Amendments." D. 4 ¶ 18. Ciccone, Swain and Viveiros argue that their participation in Senna's arrest was too attenuated for liability to attach given that they did not personally arrest him, D. 10 at 6, and the New Bedford officers argue they had probable cause for the arrest, D. 27 at 7. The Court does not agree that the conduct of the ...


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