United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO
Dennis Saylor IV United States District Judge
a pro se civil rights action. Plaintiff Omar
Franklin, Sr., has brought suit against the City of Boston
and police officers Ryan Mason and Eric Merner. The complaint
alleges that Mason failed to protect Franklin and the public
by not arresting and detaining a person suspected of firing
gunshots at his home. The complaint also alleges that Merner
destroyed property while executing a search warrant at
Franklin's home. According to the complaint, the actions
of Mason and Merner demonstrate a pattern of harassment,
intimidation, and retaliation by the Boston Police Department
in the African-American community in Boston.
the complaint does not assert a specific cause of action,
liberally construed, it appears to allege claims under 42
U.S.C. § 1983. Mason and the City have moved to dismiss
the claims against them under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be
granted. Even under a liberal construction, the
complaint's allegations against Mason and the City fail
to state a claim. Accordingly, and for the reasons set forth
below, the motions to dismiss will be granted.
following facts are accepted as true and stated as alleged in
the pro se complaint, with clarification concerning
certain allegations provided by plaintiff during the motion
unspecified date, an unidentified individual fired several
gunshots into the home of Omar Franklin, Sr., in Boston.
(Compl. ¶ 2). Apparently, Franklin reported the incident
to the Boston Police Department, and Detective Ryan Mason
began to investigate. After Mason texted Franklin a photo of
a suspect, Franklin confirmed that the photographed
individual was indeed the shooter. (Id.). The
complaint alleges that Franklin “never heard back from
[Mason] and when [he] did make inquiries, [he] was
threat[ened] like [his] life and those around [him] did not
matter.” (Id.). It is unclear who threatened
him. The complaint alleges that Mason was
“der[e]l[i]ct” and “failed to do his
duty” by “allowing a dangerous individual to roam
the community.” (Id.).
February 2015, the Boston Police Department obtained a
warrant to search Franklin's home. (Id. ¶
3). The complaint alleges that the warrant was in some way
connected to a guest staying with him. (Id.). During
the search, Detective Eric Merner, “a partner of
[Mason], ” led a SWAT team in conducting a
“military-type assault” on the home.
(Id. ¶ 4). The complaint alleges that police
arrested “a couple” individuals in the home
during the search, including a young man who was carrying a
weapon. (Id. ¶ 6). After the SWAT team left
Franklin's home, Merner and his partners
“ransacked” it, destroying Franklin's music
and computer equipment. (Id. ¶ 7). Although it
is not clear from the complaint, Franklin clarified during
the motion hearing that Mason was not a part of the police
team that conducted the search.
complaint alleges that, at some point, “the Boston
Police or one of their [confidential informants] came and put
a dead rat right by [Franklin's] car door, ” and
that he “is afraid for [his] safety because of the
Boston Police Department, [and] what [Mason] and [Merner]
did.” (Id. ¶ 11). It also alleges that
defendants violated Franklin's “civil right to
equal protection under the law” and that they have a
“policy” of harassment, intimidation, and
retaliation in the African-American community in Boston.
(Id. ¶ 1).
filed the complaint on March 8, 2016. Mason and the City have
each moved to dismiss the claims against them pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted.
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
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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 (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 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the complaint fails to set forth
“factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (quoting Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
document filed by a pro se party “is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation
marks omitted); see also Fed. R. Civ. P. 8(e)
(“Pleadings must be construed so as to do
justice.”). However, while pro se complaints
are accorded an “extra degree of solicitude”,
Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991),
they still must “set forth factual allegations, either
direct or ...