United States District Court, D. Massachusetts
MARIANNE DIAZ, individually and as mother and next friend of two minor children Jane Doe and Jane Roe, BRYANT ALEQUIN, and JOSHUA MATOS, Plaintiffs,
SGT. JAMES P. DEVLIN, DET. NICHOLAS E. NASON, DET. JEFFREY CARLSON, LT. DET. JOSEPH SCAMPINI, SGT. RICHARD CIPRO, DET. JAMES CARMODY, OFF. ANTHONY LORENTE, DET. TERRENCE GAFFNEY, DET.JOHN MORRISEY, DET. SHAWN BARB ALE, DET.RONALD REMILLARD, OFF. REBECCA AGUILAR, OFF. ELIAS BAEZ, CITY OF WORCESTER, CHIEF GARY J. GEMME, CAPT. PAUL SAUCIER, CITY MANAGER EDWARD M. AUGUSTUS, POLICE INFORMANT CR-1, and OFFS. JOHN DOE 1-4, Defendants.
MEMORANDUM AND ORDER
TIMOTHY S. HILLMAN DISTRICT JUDGE
Marianne Diaz ("Diaz"), individually and as mother
and next friend of two minor children (individually
("Ml" and "M2" and collectively, the
"minor children"), Bryant Alequin
("Alequin") and Joshua Matos ("Matos")
have filed suit against the City of Worcester
("City") and individual Defendants Sergeant James
P. Devlin, Detective Nicholas E. Nason ("Det.
Nason"), Detective Jeffrey Carlson ("Det.
Carlson"), Lieutenant Detective Joseph Scampini,
Sergeant Richard Cipro, Detective James Carmody, Officer
Anthony Lorente, Detective Terrence Gaffney, Detective John
Morrisey, Detective Shawn Barbale, Detective Ronald
Remillard, Officer Rebecca Aguilar, Officer Elias Baez, Chief
Gary J. Gemme, Captain Paul Saucier, City Manager Edward M.
Augustus, Police Informant Cr-1 ("CI"), and Offs.
John Doe 1-4. Plaintiffs allege that their rights were
violated and they suffered personal injuries when state and
local law enforcement agents executed a search warrant at
their apartment. They allege claims against the Defendants
under 42 U.S.C. §1983 for violation of their Fourth,
Fifth and Fourteenth Amendment Rights, corresponding claims
under the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12,
§§111 ("MCRA"), and state law tort claims
for false arrest, conspiracy, assault and battery, assault
with a deadly weapon, intentional infliction of emotional
distress, trespass, and fraud.
Order addresses Defendant Jeffrey Carlson's Motion To
Dismiss (Docket No. 35). For the reasons set forth below, the
motion is granted.
Carlson seeks to dismiss the claims against him 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. BellAtl. 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-Herndndez v.
Fortuno-Burset, 640 F.3d 1, 13 (1st Cir.
Carlson of the Massachusetts State Police ("MSP")
was part of an ongoing joint investigation with the Worcester
Police Department ("WPD") into an individual by the
name of Shane Jackson ("Jackson"), who was a
suspected crack cocaine dealer. Law enforcement had
previously executed a search warrant targeting Jackson at an
apartment located at 17 Hillside Street, Worcester,
Massachusetts, Apartment 3 ("Apartment"); this
search, which took place on September 22, 2014, was conducted
pursuant to a search warrant issued by the a Worcester
District Court magistrate. Jackson had a prior conviction for
drug dealing and the affidavit in support of the search
warrant stated that he had a firearm. The search yielded
digital scales with apparent drug residue, but no gun or
moved out of the Apartment on or about May 1, 2015, and
thereafter, Diaz, her two minor children, Alequin (Diaz's
fiance and the father of M2, Diaz's youngest child) and
Matos moved in. Law enforcement continued to investigate
Jackson. On March 30, 2015, Det. Carlson conducted
surveillance of him at an address on Fox Street in Worcester,
MA. Two days later Jackson was arrested and charged with
narcotics distribution; the charges were later dismissed. On
or about August 5, 2015, a default warrant the Worcester
District Court mailed to Jackson at the Apartment was
returned because he no longer resided there. On August 6,
2015, WPD officers arrested Jackson and charged him with
larceny over $250 for stealing a phone from a convenience
store. When Jackson was arraigned that same day, he did not
list the Apartment as his address. Det. Carlson and other law
enforcement agents investigating Jackson knew that the
owner/landlord of the Apartment was O&R Realty Trust.
Motor vehicle records, probation records and electric company
records indicated that Plaintiff lived at the Apartment in
readily available information indicating Jackson had moved
and that Plaintiffs now resided in the Apartment, on August
17, 2015, Det. Nason, who worked with Det. Carlson on the
Jackson investigation, applied to the District Court for a
no-knock search warrant targeting Jackson at the Apartment.
The only information supporting the warrant was gathered from
the CI. According to the affidavit, Jackson was staying at
the Apartment and had guns in his possession. More
specifically, the CI, who was described as a reliable
informant and drug user, told Det. Nason that Jackson was
staying at the Apartment and the CI had been in the Apartment
within the previous 72 hours and saw two guns (a 9mm pistol
and a .22 pistol). This information was false. Law
enforcement agents did not conduct surveillance of the area
(to see if Jackson resided there) before executing the
no-knock search warrant on August 19, 2015. They did not
check the mailbox to see who was listed as residents of the
apartment and did not contact the landlord to confirm who was
living there prior to conducting the raid. The CI claimed
that Jackson was working with a female accomplice, but law
enforcement officers did not show the CI a picture of Diaz to
determine whether she was the female that s/he had observed
executed the warrant shortly after 5:00 AM on August 19,
2015. Det. Carlson was involved in planning and approving the
raid. Armed SWAT officers entered a bedroom where Diaz -
naked due to the warm weather - was sleeping with her
children, shouting obscenities at her. The officers would not
allow Diaz to move or cover herself until they had searched
the room. Eventually she was allowed to cover herself with a
bathrobe and a female police officer performed a pat frisk on
her, reaching under the bathrobe to do so. Matos had been
sleeping on a couch in the living room when the raid began.
Officers ran at him, pointed weapons at him, and shouted
obscenities at him. Matos complied with requests to drop to
the floor, but when he told the officers that he had an
injured wrist and a fracture from a recent accident, they
ignored him and one officer stepped on his hand. Alequin had
been in the bathroom preparing for work when the raid began.
An officer kicked the door in and Alequin fell back. Officers
seized him, twisted his arm behind his back, and aimed a
sub-machine gun at him. When he asked why the officers were
raiding his home, they ignored his question as they
handcuffed him. Officers searched the apartment. Ultimately,
they found nothing of interest. When officers produced
photographs of Jackson and an alleged accomplice, Plaintiffs
insisted they did not know them. The police then left.
the raid, Ml, the older of the minor children refuses to
sleep alone and has been treated for anxiety. Her younger
sister, M2, was treated for sleep disruption and still
awakens some nights in terror. Alequin sought help and was
diagnosed as needing psychiatric treatment. A broken bone in
Matos's hand was re-fractured, and he has sought
treatment for debilitating anxiety and depression. Diaz says
she suffers stress and anxiety over the impact of the raid on
her children and fiance, but it is unclear if she has sought
medical help for these issues.
Plaintiffs have stated a Plausible Claim against Pet.
Carlson asserts that Plaintiffs' allegations in the
Complaint are insufficient to state a claim against him in
relation to the planning and execution stages of the raid.
Plaintiffs, in response, concede that they do not catalogue
every aspect of Det. Carlson's involvement with the
investigation and raid, but they argue the complaint and the
reasonable inferences therefrom make out a plausible claim.
In particular, Plaintiffs argue that there are sufficient
facts asserted to ...