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Milcent v. City of Boston

United States District Court, D. Massachusetts

February 12, 2016

CITY OF BOSTON; SGT. DAVID GAVIN, individually and in his official capacity as an employee, agent, and/or officer of the BOSTON POLICE DEPARTMENT, Defendants.

02/29/2016. Judge George A. OToole, Jr: ELECTRONIC ORDER entered. There are no objections to the Report and Recommendation filed by the magistrate judge. After reviewing the relevant papers, I ADOPT the R&R 63 in its entirety. The City of Boston's Motion to Dismiss 27 is GRANTED, and the City is dismissed from the case. (Entered: 03/02/2016)



Boston Police Department (BPD) officers conducting a car stop allegedly assaulted one of the occupants, a man named Shongi Fernandes (Fernandes). Fernandes brought suit but then passed away, and Maria Milcent was substituted as plaintiff as the representative of his estate. The complaint alleges three causes of action against BPD Sergeant David Gavin for assault and battery and violation of the pertinent state and federal civil rights statutes, and one claim against the city of Boston (the City). The City now moves to dismiss that one count, a negligence claim brought pursuant to the Massachusetts Tort Claims Act, M.G.L. c. 258 § 1, et seq.. (Dkt. No. 27). The plaintiff opposes the motion. (Dkt. No. 31). For the reasons stated below, the Court recommends that the motion to dismiss be allowed.


The facts taken in a light most favorable to the plaintiff are as follows. On December 7, 2012, BPD officers pulled over a vehicle in which Fernandes was an occupant. Officers also pulled over a second vehicle at about the same time. Fernandes and the occupants of the second vehicle were Cape Verdean. A firearm was found in the second vehicle and the officers, assuming the two groups were affiliated, ordered Fernandes out of the car. Sgt. Gavin and other officers then forcibly removed Fernandes before he could exit on his own and assaulted him, causing injury to his face. A search of the car yielded no weapons. Fernandes was not arrested or charged with any crime.

On February 15, 2013, the plaintiff’s counsel made a presentment of claims to the city of Boston. On June 25, 2014, the plaintiff initiated an action in the state superior court. On August 14, 2014, the City removed the complaint to federal court. As noted, the complaint advances one claim of negligence against the City (Count V). The City moves to dismiss on two grounds. It argues that the plaintiff failed to make a proper presentment of his claim pursuant to M.G.L. c. 258, § 4, and argues that the complaint fails in any event to state a negligence claim against the City.


The presentment letter read as follows.[1]

I represent Mr. Shongi Fernandes relative to claim against the City of Boston and both Sgt. Gavin and Officer Delahanty of the Youth Violence Strike Force, as well as unidentified others, of the Boston Police Department, arising out of actions and/or omissions of the Boston Police Department and its agents on December 7, 2012. These actions and omissions were negligent and/or intentional and violated my client’s civil rights.
Mr. Fernandes was brutally assaulted by the above-named officers, and he believes others, after a motor vehicle stop, where the police allege that the vehicle in which Mr. Fernandes was traveling and/or was a passenger was speeding. Mr. Fernandes adamantly denies that the car was going at an excessive rate of speed. Actually, and Mr. Fernandes did not know it at the time, but it turns out that the officers were out investigating “cape-verdean” gangs, and it turns out that Mr. Fernandes is Cape-Verdean, suggesting the stop was pre-textual in nature.
At any rate, Mr. Fernandes was ordered out of the car at gun point, whereupon multiple officers descended upon him, stating “that’s the guy”, whereupon they proceeded to beat him. Mr. Fernandes’ face was pummeled and/or rubbed into the concrete pavement causing severe abrasions and damage, including permanent scarring. He had to be taken to the hospital by ambulance from the scene for his injuries, where he was treated and released. Of particular note is that Mr. Fernandes was never charged with a crime, nor suspected of any criminal activity - just an unfounded conclusion that there may have been a gun in the car due to his national and ethnic background.
This type of excessive force committed by the Boston Police Officers upon the public must cease. Mr. Fernandes has suffered bodily injury and emotional distress as a result of the negligent and intentional tortuous acts committed upon them by the Boston Police Department, in violation of Massachusetts General Laws chapter 12, section 11I and Title 42, United States Code, sections 1981 and 1983. My client demands compensation for the damages caused by the negligent and wrongful acts and omissions of the City of Boston and the Boston Police Department, its officers, agents, and/or employees.
Pursuant to the provisions of the General Laws, chapter 258, section 4, you have six months to accept or deny the claims of my ...

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