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Palumbo v. Testa

United States District Court, D. Massachusetts

May 26, 2015



TIMOTHY S. HILLMAN, District Judge.

Nature of the Case

Plaintiff, Rosalba Palumbo ("Palumbo"), filed suit against individual Defendants, Dustin Testa ("Officer Testa"), Jeanne Van Patten-Steiger ("Officer Van Patten-Steiger") and Thomas J. O'Loughlin ("Chief O'Loughlin"), and the Town of Milford ("Milford") as the result of injuries she alleges she suffered when she was hit with pepper spray during the course of her son's arrest. Plaintiff has alleged claims: under 42 U.S.C. §1983 for violation of her Fourth Amendment Rights (Count I-Officers Testa and Van Patten-Steiger); under the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12, §§11H and 11I ("MCRA")(Count II-Officers Testa and Van Patten-Steiger); for Negligent Injury and Negligent Infliction of Emotional Distress (Count III- Milford); Assault and Battery (Count IV-Officers Testa and Van Patten-Steiger); Intentional Infliction of Emotional Distress (Count V-Officers Testa and Van Patten-Steiger); Conspiracy (Count VI-Officers Testa and Van Patten Steiger); and under 42 U.S.C. § 1983 against Milford and Chief O'Loughlin for violation of her constitutional rights.[1]

This Order addresses Defendants, Dustin Testa, Jeanne M. Van Patten-Steiger, Chief Thomas J. O'Loughlin And Town Of Milford's Motion To Dismiss Plaintiff's Complaint (Docket No. 6). For the reasons set forth below, the motion is allowed, in part, and denied, in part.


Standard of Review

Defendants seek to dismiss Counts I, II, VI and VII of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. On a Rule 12(b)(6) motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007). That is, "[f]actual allegations must be enough 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)." Id. at 555 (internal citations omitted). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original alterations omitted). "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).


On April 16, 2011, Palumbo, then aged 67 years, got a phone call from her son, Steven Palumbo ("Steven"). Steven told his mother that members of the Milford Police Department had just been served him with a restraining order following a conversation he had with one of his friends, Dustin Morris ("Morris"). Shortly after being served with a restraining order Steven called Morris's mother, Beverly Morris ("Mrs. Morris"), to complain about being served with a restraining order. Palumbo told her son that she would drive over to his house. Mrs. Morris called the Milford Police Department to complain about the phone call from Steven.

Officers Testa, Van Patten-Steiger, and Angel Arce ("Officer Arce") were dispatched to Steven's Parkhurst Street to arrest him for alleged violation of the restraining order. When Palumbo arrived at Steven's house, she found Steven and his girlfriend standing outside. After speaking with Steven for a short time, she went to her vehicle and noticed two vehicles drive in front of her son's property. Palumbo saw Officer Testa in one of the vehicles with another officer. Palumbo asked officer Testa: "Can I help you? What happened now?" Officer Testa asked Palumbo if Steven was home. Palumbo saw Steven walking from the garage steps of his house and she heard him say, among other things, "What did I do now?" Palumbo saw Officer Testa walk towards Steven. Palumbo next saw Officer Testa grab Steven's right hand and place it behind the back as he walked Steven towards the cruiser. Palumbo saw Officer Testa push Steven's head down onto the hood of the police cruiser.

Palumbo could hear Steven gasping for air and not being able to speak clearly. She stood about 4 feet away from Officer Testa and Steven and next to the front hood of the police cruiser. At that time Officer Testa had not told Steven he was under arrest, nor did he try to put handcuffs on him or give him any orders. Palumbo heard Officer Testa tell Steven "we're here for Beverly." Palumbo heard her son respond: "who said I can't call Beverly [Morris's mother], I call her all the time." Palumbo then saw Officers Arce and Testa force Steven's head onto the hood of the cruiser while holding up his arms towards his back as he repeatedly stated: "What did I do wrong?"

Palumbo, who was unaware the officers were going to place Steven under arrest, moved to a distance of two feet away from her son and the officers. She then placed a portion of her body on the hood of the cruiser and about 10 inches away from Steven. Palumbo saw Officer Van Patten-Steiger to the right of Officer Testa (on the driver side of the cruiser). Palumbo told Steven "we are going to fix it" and then she heard an officer say: "I'm going to spray." Palumbo had no idea what the officer meant by that statement.

Palumbo remembers that both a male officer and a female officers (Officers Testa and Van Patten-Steiger) were present and said "spray" or "we're going to spray." Just before she was sprayed, she saw the two officers standd a bit back from Steven while holding him. No officer ordered or told Palumbo to move and no one attempted to move her in an effort to prevent her from being sprayed.

Palumbo saw an officer extend a hand holding an object toward her face and when the object was about 15 inches she saw and felt a jet of spray directly into both of her eyes. Palumbo then jerked back from the hood of the car screaming "Steven, my eyes, they're burning, Steven help." Steven immediately yelled "how could you this?" "She's ...

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