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Hines v. Hervey

United States District Court, D. Massachusetts

March 26, 2018

ALBERT J. HINES, Plaintiff,
DANIEL HERVEY, et al. Defendants.



         This matter comes before the court on Defendant Worcester Police Officers Trevis Coleman, Daniel Hervey, and Sean Riley's (collectively, the “City Defendants”) motion to dismiss (Docket #19) and Defendant Brian Desmarais' Motion to Dismiss (Docket #22). Also pending before the court are pro se Plaintiff Albert Hines' two motions to amend the complaint. (Dockets #28 and 35). These matters are now ripe. After careful review of the motions and accompanying submissions, I have determined that a hearing on these matters is not necessary and therefore deny Hines' motions for hearing. (Dockets #25 and 30). For the following reasons, I hereby ALLOW the motions to dismiss (Dockets #19 and 22) and DENY the motions to amend (Dockets #28 and 35)

         I. STANDARD

         Rule 8 of the Federal Rules of Civil Procedure provides, in relevant part, that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The statement must “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Phelps v. Local 0222, No. 09-11218-JLT, 2010 U.S. Dist. LEXIS 88007, at *13 (D. Mass. Aug. 20, 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). In addition, the pleadings must afford the defendants “a meaningful opportunity to mount a defense.” Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 123 (1st Cir. 2004) (quotation omitted). At a minimum, “the complaint should at least set forth minimal facts as to who did what to whom, when, where, and why - although why, when why means the actor's state of mind, can be averred generally.” Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). While the “First Circuit holds a pro se litigant to a standard of pleading less stringent than that for lawyers, ” “this cannot be taken to mean that pro se complaints are held to no standard at all.” Green v. Massachusetts, 108 F.R.D. 217, 218 (D. Mass. 1985).

         On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). “Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)). There lies an exception to this rule “for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Id. (quoting Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).

         To survive a motion to dismiss, a plaintiff must “state a claim that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[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 (internal 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). Despite this generous standard, “Rule 12(b)(6) is not entirely a toothless tiger . . . [t]he threshold for stating a claim may be low, but it is real.” Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (quotation omitted). The complaint must therefore “set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988); see DM Research, Inc. v. Coll. Of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (explaining that the complaint must “allege a factual predicate concrete enough to warrant further proceedings”).

         Although the complaint need not provide “detailed factual allegations, ” Twombly, 550 U.S. at 555, it must “amplify a claim with some factual allegations . . . to render the claim plausible, ” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). Thus, the complaint must provide “the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Dismissal is appropriate if a plaintiff's well-pleaded facts do not “possess enough heft to show that [the] plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).

         Though most motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) are “premised on a plaintiff's putative failure to state an actionable claim, such a motion may sometimes be premised on the inevitable success of an affirmative defense.” Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). “As a general rule, a properly raised affirmative defense can be adjudicated on a motion to dismiss so long as (i) the facts establishing the defenses are definitely ascertainable from the complaint and the other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.” Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004).


         On April 10, 2017, Hines filed this action alleging multiple claims against the City Defendants and Desmarais. (Docket #2). The claims in the complaint stem from Hines' June 15, 2016 arrest for assault and battery, unarmed robbery, and trespassing. (Id.).

         In the statement of facts supporting the application for a criminal complaint, Hervey gives the following recitation of the events of June 15, 2016.[1] (Docket #20-1). On that date, at approximately 9:01 pm, the City Defendants were dispatched for an unarmed robbery. (Docket #20-1). The victim stated that a black male had punched her in the face, knocking her down, and then stole her yellow wallet out of her hands. (Id.). The victim, along with her husband, chased the assailant, observing him run down an alleyway. (Id.). The victim's husband and Desmarais, a witness who was walking his dog, informed the police that no one had entered or exited the alleyway after the suspect. (Id.; Docket #2 at ¶ 16). Hervey found Hines in the alleyway on a set of stairs on someone else's property. (Id.). Located approximately fifteen feet from Hines was the victim's wallet. (Docket #20-1). On the stairwell where Hines was located were items of clothing Desmarias had said the suspect who fled down the alley was wearing. (Docket #28-1). Hervey recovered $40 in the form of two $20 bills, which the victim stated she had in her wallet, inside Hines' pockets. (Id.).

         In his verified complaint, Hines denies being the perpetrator, and states that, five minutes prior to the police entering the alley, he observed a black man come into the alley and bump into a dumpster. (Docket #2 at ¶ 11).

         Hines was arraigned in Worcester District Court, and was indicted by the Grand Jury on August 26, 2016 for assault and battery and unarmed robbery. (Docket #20-2). Hervey and Desmarais testified before the Grand Jury. (Docket #2 at ¶ 21). In his verified complaint, Hines asserts that both Hervey and Desmarais lied in their Grand Jury testimony. (Id. at ¶¶ 22-23).

         Hines filed the instant case on April 10, 2017, alleging claims against the City Defendants and Desmarais. (Docket #2). Hines seeks monetary damages in addition to injunctive and declaratory relief. (Id. at 8-9). A call to the Worcester Superior Court confirmed that the criminal ...

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