United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
Marie Winfield filed this civil rights action for damages
arising from an incident at Lawrence General Hospital. For
the following reasons, the Motion of the Defendants,
Lawrence General Hospital, Michael Fornesi, and Gregory
Henderson, to Dismiss the Plaintiff's Complaint Pursuant
to F.R.C.P. Rule 12(b)(6) [#8] is ALLOWED, and
Defendants Timothy Dube and Robert Dibenedetto's
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
[#25] is ALLOWED IN PART and DENIED IN PART.
defeat a Rule 12(b)(6) motion to dismiss, the plaintiff must
allege sufficient facts “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). While the court
construes pro se complaints liberally, Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 75 (1st Cir. 2014),
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice, ” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Therefore, in passing on a motion to dismiss, the
court first “distinguish[es] the complaint's
factual allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Saldivar v. Racine, 818 F.3d 14,
18 (1st Cir. 2016) (quoting García-Catalán
v. United States, 734 F.3d 100, 103 (1st Cir. 2013)).
Next, the court “determine[s] whether the factual
allegations are sufficient to support the reasonable
inference that the defendant is liable.” Id.
(quoting García-Catalán, 734 F.3d at
attached to the complaint are properly considered part of the
pleading ‘for all purposes, ' including Rule
12(b)(6), ” Trans-Spec Truck Serv., Inc. v.
Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)
(quoting Fed.R.Civ.P. 10(c)). Whether statements contained in
such exhibits are considered as true, however, depends on the
purpose for which they are attached; where the exhibits are
attached for the purpose of contesting their accuracy or
demonstrating their falsity, the court does not accept the
exhibits as true for the purposes of a motion to dismiss.
See Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir.
to the Complaint [#1],  on May 15, 2016, Plaintiff
arrived at the hospital and spoke with the receptionist
stationed at the main entrance. Compl. ¶¶ 8-10.
Shortly thereafter, three hospital security guards, including
Michael Fornesi, and three police officers from the Lawrence
Police Department surrounded Plaintiff. Id. ¶
11. At the time, a separate civil rights action brought by
Plaintiff against Lawrence General Hospital, Fornesi, and a
City of Lawrence police officer was pending. Id.
¶ 7; see also Winfield v. Perocchi, No.
alleges that Fornesi “obviously saw the Plaintiff on
his close circuit monitor
summoned the Lawrence [P]olice.” Id. ¶
12. She alleges that the police officers “brutally
grabbed” her and “proceeded to pull [her] by the
arm, and push and drag her, ” rendering her
unconscious. Id. ¶ 13. She alleges that, when
she came to, the officers were “push[ing] [her]
violently” into her husband's car and thereafter
closed the door on her right foot. Id. ¶¶
the incident, Plaintiff allegedly suffered pain throughout
her body, swelling in her foot, post-traumatic stress, and
complications to her pre-existing spinal conditions.
Id. ¶¶ 15, 26. Plaintiff further alleges
that false reports were made regarding the event, that a
surveillance video was altered, and that her medical records
were improperly accessed. Id. ¶¶ 18, 20,
13, 2016, Plaintiff filed this action against Fornesi,
Lawrence General Hospital, Gregory Henderson (whom she
alleges is the Director of Security of the Lawrence General
Hospital), Lawrence Police Sergeant Robert Dibenedetto, and
Officer Timothy Dube. Count I of the complaint alleges that
Sgt. Dibenedetto and Officer Dube used excessive force in
violation of the Fourth and Fourteenth Amendments to the
United States Constitution and the Massachusetts Civil Rights
Act. Count II alleges that Fornesi, Sgt. Dibenedetto, and
Officer Dube retaliated against Plaintiff for exercising her
rights under the First Amendment. Count III alleges that
Fornesi, Sgt. Dibenedetto, and Officer Dube engaged in
concerted action to violate Plaintiff's rights under the
Equal Protection Clause of the Fourteenth Amendment and the
Civil Rights Act of 1964. Count IV alleges that Henderson and
Lawrence General Hospital are vicariously liable for
claims use of excessive force in violation of the Fourth and
Fourteenth Amendments and the Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, § 11I, by Sgt. Dibenedetto and
Officer Dube (Count I). Defendants Sgt. Dibenedetto and
Officer Dube argue that they are entitled to qualified
immunity on these claims. “‘Qualified immunity
shields government officials from civil damages liability
unless the official violated a statutory or constitutional
right that was clearly established at the time of the
challenged conduct.'” Taylor v. Barkes,
135 S.Ct. 2042, 2044 (2015) (quotation marks and citation
omitted). A qualified immunity analysis is two-fold: the
court must first decide whether the facts, taken in light
most favorable to the plaintiff, “make out a violation
of a constitutional right, ” and then decide
“whether the right at issue was ‘clearly
established' at the time of [the] defendant's alleged
misconduct.” Pearson v. Callahan, 555 U.S.
223, 232 (2009) (citation omitted). The second step of the
analysis involves “consider[ing] both whether the
contours of the ...