United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Angel Echavarria brings this case pursuant to 42 U.S.C.
§ 1983, Mass. Gen. Laws ch. 12, § 11I, and
Massachusetts state common law, alleging that Defendants,
current and former officers of the Lynn Police Department and
the Massachusetts State Police, and the City of Lynn,
violated his civil rights by engaging in unlawful conduct
during an investigation that led to his wrongful conviction
for murder. Currently pending before the Court are seven
motions to dismiss filed by Defendants John Hollow and the
City of Lynn; Joseph Rowe; Michael Cooney; John Garvin;
Norman Zuk; Russell Gokas, Raymond Guillermo, Charles Luise,
and John Scannell; and J. Michael Roach [ECF Nos. 44, 51, 54,
56, 58, 71, 78]. For the reasons set forth below, the Court
grants the motions in part and denies them in part.
following facts are drawn from the complaint, the allegations
of which are taken as true for purposes of evaluating the
motions to dismiss. See Ruivo v. Wells Fargo Bank,
766 F.3d 87, 90 (1st Cir. 2014).
January 1994, Daniel Rodriguez was shot and killed in an
apartment in Lynn, Massachusetts. Daniel was a drug
dealer, and the apartment where he was killed was known as a
place where people could buy drugs. On the night of the
murder, Daniel and his brother, Isidoro Rodriguez, arrived at
the apartment where they discovered two armed men holding
several people hostage inside the apartment. The men tied
Isidoro up with a phone cord and put him in a bedroom;
Isidoro was not harmed during the incident. The men took
Daniel to the bathroom, where he was shot in the head.
that night, Defendants presented Isidoro with two photo arrays,
and both times, Isidoro identified Mariano Bonifacio as one
of the killers. Plaintiff alleges that Defendants did not
record this identification in their reports and instead
sought to discredit the identification. Plaintiff claims that
Defendants were aware that Bonifacio could have been one of
the perpetrators because, a few weeks before Daniel's
murder, he was arrested for an attempted murder with a
similar modus operandi that occurred within half a
mile of the apartment where Daniel was murdered. Plaintiff
alleges that Defendants withheld information about Bonifacio
from Plaintiff which he could have used in his defense.
than a week after Daniel's murder, Plaintiff was at a
barbershop in Lynn with his friend Juan Rodriguez when
Isidoro approached Plaintiff and asked his name. Plaintiff
did not know Isidoro, but the two exchanged pleasantries, and
Isidoro then left the barbershop. Later that day, Plaintiff
and Rodriguez were eating dinner at a restaurant in Lynn when
they were approached by Defendants, who asked Plaintiff and
Rodriguez to step outside. Once outside, Defendants asked
Plaintiff and Rodriguez if they had been involved in
Daniel's murder. They both denied any involvement in or
knowledge of the crime. Defendants took down Plaintiff and
Rodriguez's personal information and allowed them to
leave. The next morning, Defendants arrested Plaintiff for
Daniel's murder. They informed Plaintiff that Isidoro had
identified him as one of Daniel's killers. Rodriguez was
also accused of the crime.
alleges that Defendants manufactured a false identification
from Isidoro, and that they wrote false police reports
intentionally misrepresenting the identification. Plaintiff
also claims that the photo array and live lineup where
Isidoro identified Plaintiff were unduly suggestive.
Plaintiff asserts that Isidoro had previously provided a
description of the perpetrator that did not match Plaintiff,
and furthermore, that Isidoro had cognitive limitations, a
language barrier, and was intoxicated by drugs. Plaintiff
also claims that Defendants ignored evidence that Plaintiff
was not involved in the crime, including that there was no
evidence found at the crime scene or at Plaintiff's house
that would connect Plaintiff to the murder and that Plaintiff
had an alibi and multiple witnesses could verify that he was
at home with family and friends in Lynn.
after the murder, Defendants visited Gary Sevinor in prison.
Sevinor was allegedly present in the apartment at the time of
Daniel's murder, but the police reports drafted near the
time of the crime did not identify him as a witness.
Defendants presented Sevinor with a photo array and he
identified Plaintiff as one of Daniel's killers.
Plaintiff alleges that Defendants used unduly suggestive
techniques to convince Sevinor to falsely implicate
Plaintiff. Sevinor's identification was introduced as
evidence in Plaintiff's trial.
1996, Plaintiff was convicted of first-degree murder and
other crimes and sentenced to life in prison; Rodriguez was
acquitted. Plaintiff spent more than 21 years in prison. In
April 2015, a Massachusetts Superior Court ruled that
Plaintiff was entitled to a new trial due to ineffective
assistance of counsel. In June 2015, the Commonwealth of
Massachusetts entered a nolle prosequi, dropping all
charges against Plaintiff.
brings claims under 42 U.S.C. § 1983 for violations of
his right to due process (Count I); malicious prosecution
(Count II); conspiracy to deprive him of his constitutional
rights (Count III); and failure to intervene (Count IV), and
under Massachusetts state common law for malicious
prosecution (Count V); negligence (Count VI); intentional
infliction of emotional distress (Count VII); negligent
infliction of emotional distress (Count VIII); civil
conspiracy (Count X); respondeat superior (Count
XI); and indemnification (Count XII). In addition, he brings
a claim for a violation of Mass. Gen. Laws ch. 12, § 11I
Standard of Review
evaluate a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the Court
must “accept as true all well-pleaded facts alleged in
the complaint and draw all reasonable inferences therefrom in
the pleader's favor.” A.G. ex rel. Maddox v. v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting
Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir.
2011)). The complaint must set forth “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” and should “contain ‘enough
facts to state a claim to relief that is plausible on its
face.'” Id. (quoting Fed.R.Civ.P. 8(a)(2)
and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “To cross the plausibility threshold a claim
does not need to be probable, but it must give rise to more
than a mere possibility of liability.” Grajales v.
P.R. Ports Auth., 682 F.3d 40, 44-45 (1st Cir. 2012)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A determination of plausibility is ‘a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'”
Id. at 44 (quoting Iqbal, 556 U.S. at 679).
“[T]he complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in
isolation, is plausible.” Hernandez-Cuevas v.
Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14
(1st Cir. 2011)).
plausibility standard invites a two-step pavane.”
Maddox, 732 F.3d at 80. First, 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 Puerto Rico, 676 F.3d 220,
224 (1st Cir. 2012)). Secondly, the Court “must
determine whether the remaining factual content allows a
‘reasonable inference that the defendant is liable for
the misconduct alleged.'” Id. (quoting
Morales-Cruz, 676 F.3d at 224).
Sufficiency of the Allegations
individual defendants argue that the complaint is
insufficient because it fails to state which particular
defendant is alleged to have committed which specific act.
Plaintiff concedes that he has not identified the role of
each defendant, but argues that he has sufficiently alleged
the conspiracy as a whole. Further, he contends that
Defendants had an incentive to conceal their misdeeds, that
they are in sole possession of relevant factual information,
and that the complaint adequately puts Defendants on notice
as to what misconduct is alleged.
§ 1983 case, “each Government official, his or her
title notwithstanding, is only liable for his or her own
misconduct.” Iqbal, 556 U.S. at 677; see
also Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.
2011) (“Personal liability ‘under § 1983
must be based on personal involvement in the alleged
constitutional violation.'” (citation omitted)).
“Each defendant must have personally participated in,
encouraged, condoned, or acquiesced in rights-violating
conduct.” Remus-Milan v. Irizarry-Pagan, 81
F.Supp.3d 174, 178 (D.P.R. 2015). While supervisory liability
is available, it “lies only where an ‘affirmative
link between the behavior of a subordinate and the action or
inaction of his supervisor' exists such that ‘the
supervisor's conduct led inexorably to the constitutional
violation.'” Maldonado v. Fontanes, 568
F.3d 263, 275 (1st Cir. 2009) (quoting Pineda v.
Toomey, 533 F.3d 50, 54 (1st Cir. 2008)).
case, Plaintiff is not attempting to claim that all
Defendants are liable for the actions of a few; rather,
Plaintiff asserts he is unable to know, without further
discovery, which Defendant committed or participated in which
particular act. In similar circumstances, other courts have
allowed comparable allegations to proceed to discovery.
See Cuadrado v. Wall, No. CA 08-305 ML, 2010 WL
1499589, at *2 (D.R.I. Mar. 9, 2010) (holding that although
“it is not clear from the Complaint which two officers
allegedly gouged plaintiff's eyes . . . or which officers
were included in the ‘they' in plaintiff's
allegation” that the officers kicked him, “such
level of specificity is not required to show that the pleader
is entitled to relief or to provide Defendants fair notice of
the claims against them”), report and
recommendation adopted, No. CA 08-305 ML, 2010 WL
1372700 (D.R.I. Apr. 5, 2010); Mitchell v. Rappahannock
Reg'l Jail Auth., 703 F.Supp.2d 549, 559 (E.D. Va.
2010) (denying motion to dismiss even though complaint
referred to “all defendants” and did not specify
which defendants were responsible for specific incidents);
Carter v. Newland, 441 F.Supp.2d 208, 213-14 (D.
Mass. 2006) (allowing complaint that described
“collective actions or omissions” of defendants
to go forward, “although thin on detail, ”
because it provided sufficient notice to defendants).
courts often permit claims against John Doe defendants to
proceed to discovery. See Billman v. Indiana Dep't of
Corr., 56 F.3d 785, 789 (7th Cir. 1995) (holding that
“[i]f a prisoner makes allegations that if true
indicate a significant likelihood that someone employed by
the prison system has inflicted cruel and unusual punishment
on him, and if the circumstances are such as to make it
infeasible for the prisoner to identify that someone before
filing his complaint, his suit should not be dismissed as
frivolous, ” and explaining that the principle applies
“to any case in which, usually because the plaintiff
has been injured as the consequence of the actions of an
unknown member of a collective body, identification of the
responsible party may be impossible without pretrial
discovery”). In addition, where a plaintiff's
inability to identify which defendants committed which
specific acts is due in part to defendants' alleged
misconduct, courts tend to read the complaint more
generously. See Saldivar v. Racine, 818 F.3d 14, 23
(1st Cir. 2016) (“[I]n cases in which a material part
of the information needed is likely to be within the
defendant's control, some latitude may be appropriate in
applying the plausibility standard.” (citation
omitted)); Burley v. Gagacki, 729 F.3d 610, 622 (6th
Cir. 2013) (upholding finding of liability even though
plaintiffs were unable to identify which officers entered
their home, because defendants' “intent to conceal
[their identities] contributed to plaintiffs' impaired
ability to identify them”).
Plaintiff is faced with the daunting prospect of obtaining
evidence concerning events that occurred more than twenty
years ago. Furthermore, if Plaintiff is correct that
Defendants fabricated and concealed evidence, such actions by
Defendants would add to Plaintiff's difficulty in
acquiring the evidence necessary to prove his claims. In
addition, it appears Plaintiff is correct that much of the
information he seeks is in the sole possession of Defendants.
Plaintiff has identified a discrete group of Defendants that
he reasonably believes participated in the conduct that forms
the basis of his claims. While he could have listed each
Defendant by name in each claim, rather than referring to
Defendants collectively, this is not enough to render his
claims implausible. Further, as Plaintiff points out, notice
is not a significant issue where Defendants are aware of
their job responsibilities during the time in question and
their individual actions as they relate to the investigation
and prosecution of Plaintiff. In sum, given the facts of this
case, the time that has elapsed, and the alleged misconduct
by Defendants, the Court concludes that the complaint
contains sufficient factual detail to indicate a plausible
claim for relief and to put Defendants on notice of the
claims being made against them.
City of Lynn
City of Lynn claims that Plaintiff has not sufficiently
alleged that there is a direct causal link between the
alleged policies and customs of the City of Lynn and the
alleged deprivation of Plaintiff's constitutional rights.
Although “a municipality cannot be held liable under
§ 1983 on a respondeat superior theory, ”
§ 1983 does impose “liability on a government
that, under color of some official policy, ‘causes'
an employee to violate another's constitutional
rights.” Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658, 691-92 (1978). “[A]
plaintiff must show that the violation occurred as a result
of the municipality's ‘policy or
custom.'” Freeman v. Town of Hudson, 714
F.3d 29, 38 (1st Cir. 2013) (quoting Monell, 436
U.S. at 694).
complaint in this case alleges that the deprivations of
Plaintiff's constitutional rights were caused by the
official policies, practices, and customs of the City of Lynn
and the Lynn Police Department, as well as by the actions of
the final policymaking officials for the city and its police
department [ECF No. 1 ¶ 75] (“Compl.”), and
further, that the city promulgated rules, regulations,
policies, and procedures related to police investigations
that were implemented by its employees and agents, including
the individual defendants. Id. ¶¶ 76-77.
In addition, Plaintiff claims that the city had notice of
widespread practices by its officers and agents under which
individuals suspected of criminal activity were deprived of
exculpatory evidence and were falsely implicated in crimes,
including through the fabrication of evidence; that these
practices were so pervasive that they constituted the de
facto policy of the city; and that municipal policymakers
“exhibited deliberate indifference to the problem,
thereby effectively ratifying it.” Id.
¶¶ 78-80. Lastly, the complaint alleges that the
policies, practices, and customs were the “moving
force” behind the violations of Plaintiff's
constitutional rights. Id. ¶¶ 81-83.
allegations above are sufficient to survive the motion to
dismiss. As Plaintiff points out, similar allegations were
found to be sufficient in Haley v. City of Boston,
657 F.3d 39, 51- 53 (1st Cir. 2011). In that case, the
plaintiff claimed the Boston police had a standing policy
“under which Boston police officers regularly kept
helpful evidence from criminal defendants, ” an
assertion that the defendant vigorously disputed.
Id. at 52. The court allowed the claim to proceed to
discovery, because the motion to dismiss stage “is
neither the time nor the place to resolve the factual
disputes between the parties, ” and whether the
plaintiff could “prove what he has alleged is not the
city argues that because the Massachusetts superior court
granted Plaintiff's motion for a new trial due to
ineffective assistance of counsel, and not for a failure to
produce exculpatory evidence or for a due process violation,
see Commonwealth v. Echavarria, No. 1994-2407, 2015
WL 1947741, at *5 (Mass. Super. Apr. 30, 2015), it is not
reasonable to infer a causal link between any policy or
practice of the City of Lynn and the alleged deprivations of
Plaintiff's constitutional rights. Although the court did
not grant Plaintiff a new trial based on due process
violations or wrongful suppression of evidence grounds, this
does not prove that these errors did not occur. Furthermore,
the opinion makes it clear that the court had serious doubts
about Plaintiff's conviction, describing the evidence
against him as “weak, ” stating that
Isidoro's testimony was “problematic in more ways
than one, ” and noting that there were
“significant weaknesses” in Sevinor's
identification. Id. at *12.
city also argues that in Massachusetts, district attorneys
control the investigation of homicides and bear the burden of
producing exculpatory evidence, and it is thus not possible
to infer a causal link between the city's policies and
practices and any constitutional deprivations suffered by
Plaintiff. At the motion to dismiss stage, however, the Court
is required to take Plaintiff's factual allegations as
true, and here, Plaintiff has alleged that Lynn police
officers participated in the investigation and that policy
makers acting on behalf of the city implemented rules and
procedures concerning criminal investigations that resulted
in the deprivation of Plaintiff's constitutional rights.
Furthermore, even if it is true that the prosecution