United States District Court, D. Massachusetts
ALBERT J. HINES, Plaintiff,
DANIEL HERVEY, et al. Defendants.
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE.
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)
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.
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)).
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
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).
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).
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
statement of facts supporting the application for a criminal
complaint, Hervey gives the following recitation of the
events of June 15, 2016. (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.).
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).
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).
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