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Spencer v. City of Boston

United States District Court, D. Massachusetts

March 2, 2018

BARRY SPENCER II, Plaintiff,
v.
CITY OF BOSTON, OFFICER ZANOLI, OFFICER COLBY, and SUPERVISOR DANIEL C. KEANE Defendants.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO AMEND THE COMPLAINT (DKT. NO. 45

          DONALD L. CABELL, U.S.M.J.

         Following 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.[1] (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.[2] (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.

         I. RELEVANT BACKGROUND

         A. The Original Complaint

         The 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 the City.

         With 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).

         With 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.

         B. The Proposed Amended Complaint

         The 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.

         Ostensibly, 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.

         First, 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.

         Count 2 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.

         Finally, Count 3 alleges that the City, the Mayor and the Police Commissioner violated the plaintiff's Fourth and Fourteenth Amendment rights.[3]

         II. LEGAL STANDARD

         A party 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 ...


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