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Deluca v. Merner

United States District Court, D. Massachusetts

January 11, 2016




Michael and Dawn Deluca (Plaintiffs) brought this lawsuit against several Boston police officers after an unpleasant encounter following a Bruins game. One of the officers, Robert Merner (Defendant), moves to dismiss all claims against him. For the reasons set forth below, Defendant’s motion is granted as to Counts I, III, and V, and denied as to Count IV. Count I is dismissed in its entirety, and Counts III and V are dismissed as to Robert Merner.


The following facts are taken from Plaintiffs’ complaint and assumed true for the purposes of this motion. Michael Deluca is employed as a police officer by the City of Leominster Police Department. Dawn Deluca is Michael Deluca’s wife.[1] On the date relevant to this case, Defendant was employed as a Boston police officer.[2] On June 7, 2013, Plaintiffs attended a Bruins game in Boston. After the game, at around 10:40 p.m., they exited the venue with two friends. It was raining. The four began walking down the sidewalk toward Ace Tickets, where a live broadcast was taking place. Mr. Deluca was holding a “professionally-made” Bruins sign. He intended to hold up the sign and have it filmed on the broadcast.

Before arriving at Ace Tickets, Mr. Deluca was approached by an unidentified police officer (John Doe I) who had been walking in the street with a group of four or five other officers. John Doe I yelled at Mr. Deluca, “Get the fuck out of here!” Mr. Deluca asked what he had done wrong, and John Doe I said, “I told you to get the fuck out of here.” Mr. Deluca said he was an off-duty police officer, and John Doe I asked for his identification. As Mr. Deluca was reaching into his pocket, Defendant ran up to him from the group of officers and screamed in his face, “Didn’t you hear what he said? Get the fuck out of here, asshole!” Defendant was standing close to Mr. Deluca and began poking him in the chest with his finger. Then, Defendant “violently shoved” Mr. Deluca in the chest, causing him to stumble backwards but not fall. Defendant also grabbed Mr. Deluca’s shoulders. Mr. Deluca told Defendant that he (Deluca) was “on the job, ” a phrase used by police officers to indicate to one another that they are police officers. Defendant said, “I don’t care if you ‘are on the job, ’ get the fuck out of here before I arrest you.” Defendant then “violently stole” the Bruins sign out of Mr. Deluca’s hands and threw it into the street.

Meanwhile, another officer was trying to calm Defendant, saying “hey, hey, hey, he’s a cop.” One of the other officers from the group said, “Esposito, you’re a fag, ” a comment directed at Mr. Deluca, who was wearing a Phil Esposito jersey. Another officer from the group (John Doe II) approached Mrs. Deluca and pushed her with both hands, while yelling “Get the fuck out of here.” Mrs. Deluca stumbled backwards and said, “Don’t put your hands on me, I’m a professional, I’m a nurse, why are you doing this to us?” The response was a loud “get the fuck out of here.” Another officer from the group (John Doe III) then got close to Mrs. Deluca’s face and yelled “didn’t you hear him? Get the fuck out of here.” John Doe II also told Mrs. Deluca that she would be arrested if she did not leave the area immediately. Ultimately, Plaintiffs terminated the encounter by complying with the officers’ demands and leaving the area.

Plaintiffs brought suit in Worcester Superior Court on May 15, 2015, alleging the following counts: “assault and battery / use of excessive force” on Mr. Deluca by Merner (count I); “assault and battery / use of excessive force” on Mrs. Deluca by John Doe II (count II); intentional infliction of emotional distress by all Defendants (count III); violation of Mass. Gen. Laws ch. 12, §§ 11H, 11I, by all Defendants (count IV); and conspiracy to deprive Plaintiffs of civil rights by all Defendants (count V). Defendant removed the case to this Court and then moved to dismiss all counts against him (counts I, III, IV, and V).

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. “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-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a “context-specific task” to determine “whether a complaint states a plausible claim for relief, ” one that “requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court may not disregard properly pled factual allegations, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556.


A. Count I: Assault and Battery / Excessive Force

Plaintiffs’ complaint appears to allege that Defendant committed common-law assault and battery. However, based on the parties’ memoranda and the statements of Plaintiffs’ counsel at oral argument, Plaintiffs view this claim as one for excessive force in the constitutional context. Accordingly, this Court will analyze it as such.

“In addressing an excessive force claim brought under [42 U.S.C.] § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). “The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right . . . .” Id. When “the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, ” which protects against unreasonable searches and seizures of the person. Id. If no specific constitutional provision is applicable, then the more general “substantive due process” ...

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