United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM (DOCKET NO. 39)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
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.
following facts are taken from Plaintiff's Amended
Complaint and assumed to be true at this stage of the
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.
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.
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.
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.
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.
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.
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.
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.
Destruction of Evidence
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
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.
argues that this evidence was destroyed or manipulated in bad
faith in order to frame Plaintiff for a crime he did not
Conviction and Exoneration
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.
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.
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).
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.
Sufficiency of Allegations