United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
TO AMEND THE COMPLAINT (DKT. NO. 45
L. CABELL, U.S.M.J.
a police stop he contends was unlawful, the plaintiff brought
suit against various Boston Police Department officers and
the City of Boston (the “City”). The presiding
District Judge agreed with this court that the original
complaint as framed failed to plead viable claims against the
City and one of the officers, Sergeant Keane, and granted
their motion to dismiss. (Dkt. No. 43). The plaintiff now seeks
leave to amend the complaint to cure the noted deficiencies,
and to add the present Boston mayor and police commissioner
as defendants. The defendants oppose the
motion. (Dkt. No. 45-1, 49). The matter has been
referred to this court for consideration. For the reasons
explained below, I find that the proposed amended complaint
fails to state a valid claim for relief against the present
or prospective defendants, and recommend therefore that the
motion for leave to amend be denied.
The Original Complaint
original complaint alleged that BPD Officers Zanoli and Colby
seized, searched, and arrested the plaintiff without probable
cause because he is African-American. (Compl. ¶¶ 5,
7-8). The complaint asserted claims against those two
officers as well as the moving defendants, Sergeant Keane and
respect to the moving defendants, this court construed the
complaint as alleging a section 1983 claim against Sergeant
Keane for approving a police report knowing it to reflect
unconstitutional conduct on the part of Officers Zanoli and
Colby. The District Judge agreed that the complaint failed to
assert a viable claim against Sergeant Keane because no facts
were alleged to suggest that he encouraged his subordinates
to file improper incident reports or that he knew or should
have known that the incident report filed was deficient in
any respect. (Dkt. No. 43).
respect to the City, the court construed the complaint as
alleging four claims. First, it alleged a claim of a policy
of racial profiling in violation of 42 U.S.C. § 1983.
The District Judge agreed that this claim failed because
there were no “non-conclusory” facts alleged to
show the City had a policy or custom of racial profiling.
(Id.). The complaint also alleged common law
negligence, a violation of the Massachusetts Civil Rights
Act, and arguably a claim for civil conspiracy, but the
District Judge agreed that each of these claims failed easily
for various reasons.
The Proposed Amended Complaint
proposed amended complaint abandons the state statutory and
common law claims and focuses on asserting claims under
section 1983. At core, the plaintiff seeks to resurrect his
contention that he was stopped pursuant to a City policy or
practice of racial profiling, and on that basis raises
various 1983 based claims against the original defendants and
two new defendants, including Martin Walsh in his capacity as
the Mayor of Boston, and William Evans in his capacity as the
Boston Police Commissioner. (Am. Compl. ¶¶ 6-10).
As with the original complaint, the proposed complaint is not
always a model of clarity and it is not always clear whether
a particular paragraph is meant to serve as narrative or
articulate a specific cause of action.
the proposed complaint raises three specific claims. It
asserts a “CLAIM FOR RELIEF” followed by
“COUNT 2” and “COUNT 3, ” but the
first so-called claim consists of a 60-paragraph narrative
that does not really ever articulate a specific claim, and
instead makes varied allegations of unlawful conduct by
Officers Zanoli and Colby, Sergeant Keane, Mayor Walsh,
Commissioner Evans, and the City of Boston. Making best
efforts to identify the most plausible claims in light of the
specific wording used and the nature of the narrative, the
court construes the proposed amended complaint as follows.
within the “Claim for Relief” section, the
complaint arguably alleges: (a) a section 1983 claim against
Officers Zanoli and Colby arising from their stop of the
plaintiff (Id. at ¶¶ 34-60); (b) a section
1983 claim against Sergeant Keane for being aware of but
failing to stop or supervise his subordinates' unlawful
conduct; and (c) a section 1983 claim against the City, the
Mayor and the Police Commissioner for having a policy,
custom, or practice of racial profiling.
alleges a section 1983 claim against the City, the Mayor and
the Police Commissioner for failing to train, supervise or
discipline the City's police officers.
Count 3 alleges that the City, the Mayor and the Police
Commissioner violated the plaintiff's Fourth and
Fourteenth Amendment rights.
seeking to amend a complaint more than 21 days after
“service of a responsive pleading or . . . motion under
Rule 12(b), (e), or (f)” must seek leave of court to do
so. Fed.R.Civ.P. 15(a). The Court's task is to determine
whether “justice … requires” that leave to
amend be granted, a determination that requires the Court to
“examine the totality of the circumstances and to
exercise its informed discretion in construing a balance of
pertinent considerations.” Id; Palmer v. Champion
Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006).
“Reasons for denying leave [to amend] include undue
delay in filing the motion, bad faith or dilatory motive,
repeated failure to cure deficiencies, undue prejudice to the
opposing party, and futility of amendment.” U.S. ex
rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st
Cir. 2009) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)). Amendment is considered futile where the amended
complaint would not survive a motion to dismiss under
Fed.R.Civ.P. 12(b)(6). Adorno v. Crowley Towing and
Transp. Co., 443 F.3d 122, 126 (1st ...