Cosenza v. City of Worcester

          ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOCKET NO. 39)

          TIMOTHY S. HILLMAN DISTRICT JUDGE.

         Natale Cosenza (“Plaintiff”) brought this action asserting various claims against Kerry Hazelhurst, John Doherty, T.J. Coakley, Mark Richardson, Allan Burnes, Daniel Benedict, Brian Donohue, Robert Turgeon, as-yet unknown Worcester Police Officers, and the City of Worcester (“Defendants”) for violations of Due Process (Count I), Federal Malicious Prosecution (Count II), Conspiracy to Deprive Constitutional Rights (Count III), and Failure to Intervene (Count IV), all pursuant to 42 U.S.C. § 1983. Defendants have moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted (Docket No. 39). For the reasons state below, Defendants' motion is granted in part and denied in part.

         Background

         1. The Attack

         The following facts are taken from Plaintiff's Amended Complaint and assumed to be true at this stage of the litigation.^[1]

         On August 14, 2000, a woman named M.H. awoke in her bedroom in Worcester, Massachusetts to a man wearing only a t-shirt, underwear, and a cloth wrapped around his head standing at the foot of her bed. When M.H. asked him what he was doing there, he attacked her, beating her with a wooden object. As he climbed on top of her, she kicked and screamed causing her attacker to flee. The attack occurred at 4:00 a.m. and M.H.'s blinds were closed.

         She immediately called 911. Her initial description was only that her attacked was a white male, that he did not have hair, and what he was wearing. She repeatedly emphasized that she had never seen her attacker before. Defendants Burnes, Turgeon, Benedict, and Donohue then arrived on the scene. M.H. was not able to provide any further description of her attacker and again repeated that she had never seen the man before.

         2. Identification

         Later that morning, Defendants Burnes, Turgeon, and Benedict canvased M.H.'s apartment complex to look for witnesses. They could not find anyone who could identify the assailant but discovered that Plaintiff lived in a different building of the apartment complex. Defendants knew Plaintiff because of his past struggles with drug addiction and were not fond of him. At the time of the investigation, Plaintiff was on probation for drug offenses. In fact, Worcester police had been trying to find him in connection with a purported probation violation but had not located Plaintiff perhaps because he had been in an inpatient treatment program and had not been in contact with police.

         Defendants spoke to a neighbor of M.H., who falsely alleged that Plaintiff had stolen his motorbike. According to Plaintiff, he had helped the neighbor recover the stolen motorbike and when the neighbor refused to pay the promised reward, a dispute ensued between the two. Because of this disagreement, the neighbor told Defendants he suspected Plaintiff had attacked M.H. Defendants knew that the neighbor's suspicion of Plaintiff stemmed from the motorbike dispute. Nonetheless, Defendants cited the neighbor's lead as a reason to suspect Plaintiff in the attack. According to Plaintiff, this was simply pretext. Once Defendants learned Plaintiff lived in the complex, they decided Plaintiff was the perpetrator, stopped looking for the true attacker, and reverse-engineered the investigation to implicate him.

         More than 24 hours after the attack, Defendants Hazelhurst and Doherty met with M.H. Defendants utilized a suggestive photo array which caused M.H. to identify Plaintiff. Instead of using photos that matched M.H.'s description of the perpetrator (which Plaintiff did not match), they showed a photo of Plaintiff and two other men that closely resembled him. The array therefore gave M.H. a choice between Plaintiff-who she had seen before because he lived in the apartment complex-and two strangers. Notably, M.H. previously described her attacker as having no hair whereas Plaintiff did have hair.

         Moreover, Defendants assembled the array knowing the attack occurred in a dark bedroom, while M.H. was covering her face and eyes, and that the attacker had something around his head. Plaintiff alleges that it follows that Defendants knew M.H.'s identification was highly likely to be inaccurate and that she would be susceptible to suggestive techniques.

         Before M.H. reviewed the photos, Defendants stressed that M.H. had to identify someone in the array for the case to proceed. During the identification procedure, Defendants Hazelhurst and Doherty told M.H. Plaintiff's name and that he lived in her apartment complex. Plaintiff contends this was done to suggest to M.H. whom they believed was the perpetrator among the nine photographs. M.H. subsequently identified Plaintiff and Defendants Hazelhurst and Doherty told her that she correctly identified the perpetrator.

         Thereafter, M.H.'s description of her attacker predictably became more detailed. In short, the description suddenly sounded like Plaintiff. For the first time, M.H. noted that her attacker had a “familiar face” despite the fact she had previously said the exact opposite. Also unsurprisingly, M.H. became convinced Plaintiff was her attacker. She repeated her identification of him during his criminal proceedings and her eye witness account implicated him in the crime.

         3. Destruction of Evidence

         Defendants recovered part of a chair rung from M.H.'s bedroom, presumably the wooden object her attacker used to beat her. Before fingerprint and forensic evidence could be developed, however, Defendant Donohue and other Defendants allowed it to be destroyed. Further, Defendants also found fingerprints that the attacked left on the window where he entered the apartment. Defendants similarly allowed that evidence to be destroyed.

         Further, after the attack a pair of men's shorts were found that did not belong to M.H. or anyone else who had lawfully been in her apartment. Defendants believed that the shorts belonged to the perpetrator as he had already stripped down to his underwear when M.H. awoke and fled before getting dressed. The shorts also contained semen which the Defendants tested. When the genetic profile did not match Plaintiff, Defendants manipulated details to make it appear the shorts did not belong to the true attacker.

         Plaintiff argues that this evidence was destroyed or manipulated in bad faith in order to frame Plaintiff for a crime he did not commit.

         4. Conviction and Exoneration

         Plaintiff was tried for armed burglary, assault and battery with a weapon, and assault with the intent to rape. He was acquitted of assault with intent to rape but convicted of the other chargers and sentenced to 12 to 20 years in prison.

         On May 31, 2016, the Superior Court granted Plaintiff a new trial. After an evidentiary hearing, the court suppressed M.H.'s identification as the “procedure was unduly suggestive.” On November 14, 2017, the Commonwealth subsequently dropped all charges.

         Standard

         A defendant may move to dismiss, based solely on the complaint, for the plaintiff's “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955. “The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

         In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a “context-specific task” to determine “whether a complaint states a plausible claim for relief, ” one that “requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court may not disregard properly pled factual allegations, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

         Discussion

         1. Sufficiency of Allegations

         a. ...