United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS AND PLAINTIFF'S MOTION TO AMEND THE
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
action arises out of an incident at an AT&T store in
Cambridge, Massachusetts, at the Cambridgeside Galleria.
Plaintiff Richard Strahan, who is proceeding pro se,
alleges that when he went into the AT&T store to pay his
wireless phone bill, an employee called security. Off-duty
Cambridge police officers employed by the Galleria arrested
him for trespass. The state trial court ultimately dismissed
the trespass charge for lack of probable cause. Strahan now
appears to assert a claim against the Galleria under 42
U.S.C. § 1983 for violations of his rights under the
Fourth and Fourteenth Amendments.
Galleria has moved to dismiss the complaint under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim and
Fed.R.Civ.P. 8(a) for failure to provide a short and plain
statement of the claim. Strahan, in turn, has filed a motion
to amend the complaint. For the following reasons, the motion
to dismiss will be granted and the motion to amend will be
following facts are as stated in the first amended complaint.
2012, Richard Strahan had a written contract with AT&T
Mobility LLC for cellphone services. (Am. Compl. ¶ 29).
The contract permitted him to access AT&T stores during
their regular business hours to receive services from
AT&T employees and make payments. (Id.).
8, 2012, Strahan visited the AT&T store at the Galleria
to pay his bill. (Id. at ¶ 30). He alleges that
he attempted to make his payment in cash at an automated
machine toward the rear of the store when Leon Lashley, an
off-duty Cambridge police officer employed as a Galleria
security guard, approached him. (Id. at ¶ 31).
Lashley ordered Strahan to leave the store, and he complied.
(Id.). Strahan contends that neither Lashley nor any
AT&T employee warned him that he would be arrested for
trespass if he returned. (Id. at ¶ 32).
15, 2012, Strahan returned to the Galleria AT&T store to
pay his bill. (Id. at ¶ 1). According to the
complaint, when he entered the store, “[d]isgruntled
AT&T employees refused his peaceful offer to pay his bill
and called the Cambridge Police . . . to physically remove
him from the store.” (Id.). He then left the
store, but was confronted by Thomas Glynn, another off-duty
Cambridge police officer employed as security by the
Galleria. (Id. at ¶ 35). Strahan attempted to
record the encounter with Glynn by video. (Id.).
Eventually, a second security officer, Raymond Pina,
approached him. (Id. at ¶ 36).
was subsequently arrested for trespassing by Glynn and Pina.
(Id. at ¶¶ 2, 8, 38). While handcuffed, he
was forced against the wall by Pina. (Id. at ¶
39). He was then held at the Cambridge police station until
bail was posted. (Id. at ¶ 40). The criminal
trespass charge against him was later dismissed by the
Cambridge District Court for lack of probable cause.
(Id. at ¶¶ 2, 41).
filed the original complaint in this action on June 8, 2015,
asserting claims against Officers Lashley, Glynn, and Pina.
On September 20, 2016, he filed an amended complaint adding
claims against, among others, AT&T and the Galleria. He
subsequently stipulated to the dismissal of his claims
against several defendants on November 2, 2016, leaving only
the Galleria and AT&T. The Galleria has now moved to dismiss
19, 2017, Strahan moved to amend the complaint to clarify his
claims against the Galleria under § 1983, and to add
state-law claims for intentional infliction of emotional
distress, false arrest, and malicious prosecution.
Defendant's Motion to Dismiss Under Rule
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). In other words, the “[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 ...