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Correia v. The Town of Westport

United States District Court, D. Massachusetts

September 7, 2017

CARMELIA M. CORREIA, PERSONAL REPRESENTATIVE OF THE ESTATE OF PAUL A. CORREIA, Plaintiff,
v.
THE TOWN OF WESTPORT, WESTPORT POLICE DEPARTMENT, TARA E. SOUZA, JOHN BELL, BARRY BEAULIEU, CHRISTOPHER MELLO, BRYAN MCCARTHY, ANTONIO CESTODIO, and KEITH PELLETIER, Defendants.

          MEMORANDUM AND ORDER ON MOTION TO DISMISS

          ALLISON D. BURROUGHS, U.S. DISTRICT COURT JUDGE.

         Plaintiff Carmela Correia (“Plaintiff”), as the personal representative of the estate of Paul A. Correia (“Mr. Correia”), brings this action, under 42 U.S.C. § 1983 and Massachusetts state law, against seven police officers in their official and individual capacities (the “Defendant Officers”), [1] the Town of Westport (“Westport”), and the Westport Police Department (“WPD”) (collectively, “Defendants”), alleging federal and state constitutional violations, intentional torts, gross negligence, and negligence. [ECF No. 1, Ex. A (“Compl.”)]. In August 2016, Plaintiff filed the complaint in Massachusetts state court. On December 12, 2016, the Defendants filed a notice of removal in federal court. [ECF No. 1].

         Currently before this Court are Defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim as to all Defendants and Rule 12(b)(5) motion for failure to effectuate proper service as to Officer Souza. [ECF No. 7]. Plaintiff opposes the motion. [ECF No. 15]. For the reasons state below, the motion is GRANTED IN PART AND DENIED IN PART pursuant to Federal Rule of Civil Procedure 12(b)(6).[2]

         I. FACTUAL ALLEGATIONS

         On August 20, 2013, Mr. Correia, a forty-five year old mentally disabled man, was the operator of a vehicle traveling northbound on Gifford Road in Westport, Massachusetts. Compl. ¶ 15. Mr. Correia crossed a double yellow line, passing a police cruiser and two other vehicles while proceeding through a stop sign. Id. ¶ 16. Mr. Correia then made a right turn onto a road heading westbound. Id.

         Observing this, Officer Souza turned on her emergency lights and siren and pursued Mr. Correia. Id. ¶ 17. Plaintiff claims that Officer Souza continued her pursuit despite being ordered to cease due to heavy traffic and the time of day. Id. ¶ 18. Mr. Correia subsequently struck at least one vehicle, and eventually came to a stop after striking a guardrail. Id. ¶ 19. Officer Souza joined Officer Bell[3] where Mr. Correia's car came to rest. Id ¶ 20. With firearms drawn, Officers Bell and Souza instructed Mr. Correia to show his hands. Id ¶ 21. Mr. Correia did not respond to any verbal instruction. Id ¶ 22. Officer Beaulieu arrived at the scene, threatened to use his taser on Mr. Correia if he did not step out of the vehicle, and then used his taser on Mr. Correia multiple times. Id ¶ ¶ 23, 24.

         Thereafter, Officers Mello, McCarthy, Cestodio, and Police Chief Pelletier arrived at the scene. Id ¶ 25. The officers[4] physically removed Mr. Correia from his vehicle and he was transported by ambulance to Charlton Memorial Hospital (“Charlton”), where he was found to have suffered a nose fracture and related contusions. Id ¶¶ 26-28. Charlton also noted that Mr. Correia was “hyperverbal, ” with “flight of ideas and grandiose speech.” Id ¶ 29. Mr. Correia was transferred to Westport Police Station for booking and eventually to Bristol County House of Corrections.[5] Id ¶ 30.

         II. CLAIMS FOR RELIEF

         The complaint contains nine claims for relief, and names the Defendant Officers in their individual capacities in Count I and in both their individual and official capacities in the remaining counts. Id ¶¶ 7-13, 32.

• Count I alleges a violation of § 11I of the Massachusetts Civil Rights Act (“MCRA”) against the Defendant Officers. Id ¶¶ 31-33.
• Counts II, III, and IV allege intentional torts (assault, battery, and intentional infliction of emotional distress, respectively) against the Defendant Officers. Id ¶¶ 34-49.
• Counts V through VIII allege negligence and gross negligence against all Defendants. Id. ¶¶ 50-65.
• The final count, which is unnumbered, alleges a violation of the Eighth and Fourteenth Amendments by the Defendant Officers pursuant to 42 U.S.C. § 1983. Id ¶¶ 66-67.
• Plaintiff seeks compensatory and punitive monetary damages, interest, costs, and attorneys' fees.

         III. LEGAL STANDARD

         On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most hospitable to the plaintiff's theory, and draw all reasonable inferences from those facts in favor of the plaintiff. U.S. ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011). Although detailed factual allegations are not required, a pleading must set forth “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action” is not enough. Id. To avoid dismissal, a complaint must 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) (internal quotations and citation omitted). Further, the facts alleged, when taken together, must be sufficient to “state a claim to relief that is plausible on its face.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 570).

         The First Circuit has noted that “[t]he plausibility standard invites a two-step pavane.” Id. “At the first step, the court ‘must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). “At the second step, the court must determine whether the remaining factual content allows a reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal quotations and citation omitted). “The make-or-break standard . . . is that the combined allegations, taken as true, must state a plausible, not a merely conceivable, case for relief.” Sepulveda-Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25, 29 (1st Cir. 2010). “Although evaluating the plausibility of a legal claim requires the reviewing court to draw on its judicial experience and common sense, the court may not disregard properly pled factual allegations, even if it strikes a savvy judge that actual proof of those facts is improbable.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (internal quotations and citation omitted).

         IV. DISCUSSION

         A. The § 1983 Claim

         i. The § 1983 Claim Against the Defendant Officers In Their Individual Capacities

         Section 1983 provides a cause of action for violations of the U.S. Constitution and federal law. See 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 394 (1989). Section 1983 states, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity . . . .

42 U.S.C. § 1983. To succeed under § 1983, a plaintiff must show that “the challenged conduct [is] attributable to a person acting under color of state law” and that “the conduct . . . worked a denial of rights secured by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). With respect to the first prong, Defendants do not contest that Plaintiff adequately alleged state action, and the Court thus turns to the second prong.

         With respect to the second prong, Plaintiff asserts that the Defendant Officers violated Mr. Correia's Eighth and Fourteenth Amendment rights by using excessive force. Compl. ¶ 67. Because Mr. Correia alleges harm during an investigatory stop and arrest, however, his excessive force claim is properly analyzed under the Fourth Amendment standard, rather than the Eighth or Fourteenth. Graham, 490 U.S. at 394 (“Where . . . 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 guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures' of the person.” (quoting U.S. Const. amend IV)); Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 71 (1st Cir. 2016) (applying Fourth Amendment standard, rather than Fourteenth Amendment, where excessive force allegedly occurred while plaintiff was transported to a police station and then a jail cell). Reviewing the claim under the Fourth Amendment, the § 1983 excessive force claim must be dismissed as against all the Defendant Officers except Officer Beaulieu. See Johnson v. City of Shelby, Miss., 135 S.Ct. 346, 346 (2014) (“Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” (quoting Fed. Rule Civ. Proc. 8(a)(2)).

         To prevail on an excessive force claim under the Fourth Amendment, a Plaintiff must show that “the defendant employed force that was unreasonable under all the circumstances.” Correia v. Feeney, 620 F.3d 9, 12 (1st Cir. 2010) (quoting Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009)). This standard requires an inquiry into the circumstances of the particular case to determine if a reasonable officer would have thought the particular use of force was reasonable, including (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 387, 396. It has long been recognized that police officers have a right to use some degree of physical coercion or threat of such coercion to make an arrest. Graham, 490 U.S. at 396; Terry v. Ohio, 392 U.S. 1, 22-27 (1968). Courts apply an objective reasonableness standard to ...


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