United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG DISTRICT JUDGE.
INTRODUCTION AND PROCEDURAL HISTORY
plaintiffs Marie Winfield (“Ms. Winfield”) and
Robert Winfield (“Mr. Winfield”) (collectively,
the “Winfields”) bring a civil rights suit
against the Town of Andover (“Andover”), the
executive assistant to the Andover Town Manager Wendy Adams
(“Adams”), police officers Christopher Hughes
(“Hughes”), Sobahn Namvar (“Namvar”),
Steven Gerroir (“Gerroir”), Barry Dubois
(“Dubois”), Derrek Deranian
(“Deranian”), Chad Cooper (“Cooper”),
and chief of police Patrick Keefe (“Keefe”); fire
and rescue personnel Andrew Loonie (“Loonie”),
Thomas Kennedy III (“Kennedy”), Brian Flanagan
(“Flanagan”), and fire and rescue chief Michael
Mansfield (“Mansfield”) (collectively the
“Town Officials” and with Andover, the
“Andover Defendants”), and Richdale Convenience
Store (“Richdale”) for discriminatory treatment
stemming from a number of incidents with the various
defendants. Pls.' First Am. Compl. (“Am.
Compl.”) 1-5, ECF No. 16-1.
Winfields initially filed their complaint on June 5, 2017.
Compl., ECF No. 1. The Andover Defendants moved to dismiss
the claims, Mot. Dismiss Pls.' Compl., ECF No. 7, and
subsequently briefed the issues, Mem. Dismiss, ECF No. 8.
hearing the motion to dismiss, the Court granted the motion.
Order Mot. Dismiss Failure State Claim, ECF No. 13. Counts
II, IV, X, and XI were dismissed with prejudice, and the
other counts were dismissed without prejudice with leave for
the Winfields to file a motion for leave to amend within 30
days. Id. The Winfields duly filed a motion for
leave to file a proposed first amended complaint. Mot. Leave
File First Am. Compl., ECF No. 16. The Andover Defendants
opposed the motion, maintaining that the amended complaint
failed to cure the deficiencies of the original complaint and
was therefore futile. Defs.' Opp'n, ECF No. 18.
denying the Winfields' request for notice of default
against Richdale due to the lack of evidence of service upon
Richdale, see ECF No. 24, the Court then reissued a
summons as to Richdale, Summons, ECF No. 25, and the summons
returned executed, Summons Ret., ECF No. 26. The Winfields
again requested notice of default, and the Court entered
default against Richdale on March 23, 2018. See ECF
No. 27; ECF No. 31.
Winfields' proposed first amended complaint includes
twelve claims, most of which are asserted under 42 U.S.C.
section 1983: retaliation in violation of the First Amendment
against the police officer defendants and Adams (count I),
Am. Compl. ¶¶ 92-106; discrimination in public
accommodations against Richdale (count III), id.
¶¶ 107-20; unreasonable seizure, unreasonable
detention, false arrest and imprisonment of Ms. Winfield
against the police officer defendants and the fire and rescue
personnel defendants (counts V and VI), id. at
¶¶ 121-37; unlawful arrest and false imprisonment
of Mr. Winfield by the police officer defendants (counts VII
and VIII), id. at ¶¶ 138-48; civil
conspiracy in violation of the Civil Rights Act of 1964 by
police officers and fire and rescue personnel (count IX),
id. at ¶¶ 149-60; supervisory liability,
reckless or callous indifference, and gross negligence
against Keefe and Mansfield (count XII), id. at
¶¶ 161-73; a claim alleging local government
liability against Andover asserted under Monell
v. Department of Soc. Servs., 436 U.S. 658
(1978) (count XIII), id. at ¶¶ 174-186;
excessive use of force by Keefe and Cooper under both section
1983 and the Massachusetts Civil Right Act
(“MCRA”) (counts XIV and XV), id. at
¶¶ 187-201; and a free standing MCRA
claim (count XIV), id. at 70-71.
Andover Defendants contend that (i) the Winfelds' motion
for leave to amend was untimely because it was filed after
the expiration of the thirty day period set by this Court,
and (ii) because the proposed amended complaint
“contains the same deficiencies as Plaintiffs'
original complaint . . . their Motion for Leave to File an
Amended Compliant should be denied [as futile].”
Defs.' Opp'n 2. They contest all but Count III, which
the Winfields asserted (and won default judgment) solely
against Richdale. See Am. Compl. ¶¶
107-120; ECF No. 31.
Standard of Review
to amend should be “freely give[n] . . . when justice
so requires.” Fed.R.Civ.P. 15(a); see also
Edlow v. RBW, LLC, 688 F.3d 26, 39
(1st Cir. 2012). Courts, however, have discretion to deny
leave to amend under “appropriate circumstances,
” such as “undue delay, bad faith, futility, and
the absence of due diligence on the movant's part.”
Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006).
Winfields do not contest that they filed their motion for
leave to amend more than thirty days after this Court's
order, but they allege that their motion was delayed due to
Ms. Winfield's injury by Keefe and Cooper's assault
that resulted in hospitalization. Pls.' Reply ¶ 2,
ECF No. 19. The Court, in its discretion, will not deny the
motion to leave to amend due to this delay because the reason
may be “valid” and the delay of approximately one
month is not “considerable.” See
Pérez v. Hospital Damas, Inc.,
769 F.3d 800, 802 (1st Cir. 2014) (quoting In re
Lombardo, 755 F.3d 1, 3 (1st Cir. 2014)).
issue here is whether the Winfields' amended claims are
futile. In assessing futility, courts apply the same standard
as a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Adorno v. Crowley Towing
& Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
“[I]f the proposed amendment would be futile because,
as thus amended, the complaint still fails to state a claim,
the district court acts within its discretion in denying the
motion to amend.” Abraham v.
Woods Hole Oceanographic Inst., 553 F.3d 114, 117
(1st Cir. 2009) (quoting Boston & Me. Corp.
v. Hampton, 987 F.2d 855, 868 (1st Cir.
1993)); see Glassman v. Computervision
Corp., 90 F.3d 617, 623 (1st Cir. 1996) (“There is
no practical difference, in terms of review, between a denial
of a motion to amend based on futility and the grant of a
motion to dismiss for failure to state a claim.”).
order for the Winfields' proposed amended complaint to
survive under Rule 12(b)(6), a complaint must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). The
Court is allowed to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Fortuño-Burset, 640 F.3d 1, 11 (1st Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). This Court must “accept as true all
well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the pleader's
favor.” Santiago v. Puerto
Rico, 655 F.3d 61, 72 (1st Cir. 2011). The court's
assessment of the pleadings is
“‘context-specific, ' requiring ‘the
reviewing court to draw on its judicial experience and common
sense.'” Maldonado v.
Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (quoting
Twombly, 550 U.S. at 556).
reviewing documents for a motion to dismiss,
“[o]rdinarily . . . any consideration of documents not
attached to the complaint, or not expressly incorporated
therein, is forbidden.” Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993). There are
exceptions, however, “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,
” even if those documents are introduced by the
defendant. Id.; see Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
Count I: 42 U.S.C. § 1983 (Violation of the First
Count I, the Winfields assert a First Amendment retaliation
claim in violation of 42 U.S.C. § 1983 against certain
police officers and Adams. Am. Compl. ¶¶ 92-106. In
particular, the Winfields allege that the “Andover Town
Manager and the Chair of the Board of Selectmen have hindered
[Ms. Winfield's] participation in the public Town
meeting, ” and that a police officer seized Ms.
Winfield to prevent her from participating in town meetings.
Id. at ¶ 93. More specifically, Ms. Winfield
alleges that on July 22, 2017, Adams, the executive assistant
to the Andover Town Manager, without saying a word, called
the police when Ms. Winfield went to her office to seek to be
placed on the agenda for the next town meeting. Id.
at ¶ 62. Then, three police officers arrived, told her
that they wanted her to leave, and escorted her out of the
public building. Id. Ms. Winfield alleges that this
was the second time Adams called Andover police to remove her
from the Town Hall just for seeking to speak with a town
official. Id. at ¶ 63. These allegations bear a
general resemblance to Lozman v. City
of Riviera Beach, 681 Fed.Appx. 746 (11th Cir. 2017),
cert. granted, 138 S.Ct. 447 (2017), now under
review by the Supreme Court. As the constitutional rights in
this area are thus not firmly established, the persons sued
are entitled to qualified immunity.
the qualified immunity doctrine, “government officials
performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “When a
defendant invokes qualified immunity, an inquiring court
typically engages in a ‘two-step pavane.'”
McKenney v. Mangino, 873 F.3d 75,
81 (1st Cir. 2017) (quoting Alfano v.
Lynch, 847 F.3d 71, 75 (1st Cir. 2017)). The court
“must first determine whether the plaintiff has alleged
the deprivation of an actual constitutional right at all, and
if so, proceed to determine whether that right was clearly
established at the time of the alleged violation.”
Wilson v. Layne, 526 U.S. 603, 609
(1999) (quoting Conn v. Gabbert,
526 U.S. 286, 290 (1999)). “Unless the plaintiff's
allegations state a claim of violation of clearly established
law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.”
Mitchell v. Forsyth, 472 U.S. 511,
526 (1985); see Pearson v.
Callahan, 555 U.S. 223, 223 (2009) (observing that
because qualified immunity is “an immunity from suit
rather than a mere defense to liability, ” it is
important to resolve immunity questions at the earliest
possible stage in litigation (quoting Mitchell, 472
U.S. at 526)).
Winfields also allege that after filing an internal complaint
against the police officers, the police officers retaliated
against them by “go[ing] to Plaintiffs' landlords
and misrepresent[ing] material facts in order to cause the
Plaintiff to lose her house through malice and
coercion.” Am. Compl. ¶ 94. Moreover, the
Winfields allege that the fact the Winfields were arrested is
due to the retaliation. Id.
establish a First Amendment retaliation claim, a party must
show that her conduct “was constitutionally protected,
and that this conduct was ‘a substantial factor [or] .
. . a motivating factor' driving the allegedly
retaliatory decision.” Gorelik v.
Costin, 605 F.3d 118, 123 (1st Cir. 2010) (quoting
Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 10 (1st Cir.
2005)); see also Gonzalez-Droz v.
Gonzalez-Colon, 660 F.3d 1, 16 (1st Cir. 2011);
D.B. ex rel Elizabeth B. v. Esposito, 675 F.3d 26,
43 (1st Cir. 2012). “The defendant may then avoid a
finding of liability by showing that ‘it would have
reached the same decision . . . even in the absence of the
protected conduct.'” Esposito, 675 F.3d at
43 (quoting Powell v. Alexander, 391 F.3d 1, 17 (1st
even with the added facts regarding a complaint Ms. Winfield
made against two police officers, and the landlords'
eviction letter on October 12, 2017, the Winfields do not
sufficiently allege what adverse action was taken by the
police officers and whether police action was a
“substantial factor or a motivating factor”
connected to the eviction letter. Am. Compl. ¶¶ 18,
20. The Winfields allege only that “[b]ecause the
eviction violated M.G.L. 239 Section 2A and Chapter 186
Section 18 Retaliation Eviction, the Plaintiff was able to
negotiate a time to move outside the 30 day letter to vacate
dated August 5, 2016, which inextricably linked Andover
personnel with the eviction letter.” Id. at
under Rule 12(b)(6), even drawing all reasonable inferences
in the Winfields' favor, the Court rules that the
Winfields' First Amendment retaliation claim is futile.
See Twombly, 550 U.S. at 570.
Counts V, VI, VII, and VIII: Unreasonable Seizure, Improper
Detention, Unlawful Arrest, and False Imprisonment (Fourth
and Fourteenth Amendment Claims)
Counts V and VI, Ms. Winfield asserts a Fourth and Fourteenth
Amendment claim, alleging that police and fire and rescue
officers “abused their discretionary power, ”
improperly held her, and involuntarily committed her solely
based on racial animus and the stereotypical tag of mental
illness. Am. Compl. ¶¶ 121-37. In Counts VII and
VIII, Mr. Winfield alleges that he was unreasonably seized
and arrested by police officers. Id. at ¶¶
138-48. The Town Officials argue ...