United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON DEFENDANT OFFICER
CHRISTOPHER COLBY'S MOTION TO DISMISS (DKT. NO.
L. CABELL, U.S.M.J.
Spencer contends that Boston Police Department (BPD) Officers
Joseph Zanoli and Christopher Colby stopped, searched and
arrested him without cause in the course of a street
encounter. Spencer at one point sought to assert several
federal and state statutory and common law claims against the
officers and several other defendants, including their shift
supervisor, the BPD Commissioner, the mayor of Boston and the
city of Boston itself. Following protracted litigation,
however, the complaint presently alleges a claim under 42
U.S.C. §1983 against Officers Zanoli and Colby for
violation of the plaintiff's Fourth Amendment
before the court is Officer Colby's motion to dismiss.
His counsel, the City of Boston Law Department (the City),
previously represented Officer Zanoli as well but notes that
Officer Zanoli passed away in 2015, and contends that the
City has no authority to represent his estate. It is not
entirely clear why counsel has taken this position now,
particularly where the record reflects that the City actively
represented Officer Zanoli well into 2017, but the issue is
academic. Based on submissions which have not been disputed,
Officer Zanoli did in fact pass away in May 2015, about two
months after this lawsuit was filed. (Dkt. Nos. 1, 72). In
instances where a party to a lawsuit dies, a court upon
motion “may order substitution of the proper
party” provided the motion is made within 90 days of
service of a statement noting the death. If the motion is not
made within 90 days of service, “the action . . .
against the decedent must be
dismissed.” Fed.R.Civ.P. 25(a)(1) (emphasis added).
Here, a suggestion of Officer Zanoli's death and an
accompanying death certificate were filed with the court and
served on the plaintiff on May 23, 2018. As the plaintiff
failed to move within 90 days of receiving the notice to
substitute another in Officer Zanoli's place, the claims
against Officer Zanoli must be dismissed. See e.g., Falls
v. Novartis Pharm. Corp., No. 3:13CV0270(JBA), 2014 WL
3810246, at *5 (D. Conn. Aug. 1, 2014) (granting motion to
dismiss after failure to file timely motion for
then on Officer Colby, the court finds as explained below
that the complaint fails to state a viable claim against him
for violation of Spencer's civil rights. The court thus
recommends that the motion to dismiss be granted and that the
complaint be dismissed in its entirety.
to the complaint, Officers Zanoli and Colby stopped,
searched, and arrested Spencer during an encounter that took
place on the evening of April 15, 2013, in a high crime area
of Boston. It was not the first such encounter; Officer
Zanoli had “stopped, frisked, searched, [and]
interrogated” Spencer on at least three occasions the
previous month. As a result of those encounters, Officer
Zanoli knew that Spencer was a drug user.
event unfolded, Officers Zanoli and Colby were in their
police vehicle when they saw Spencer speaking to a woman
named Tammy Lagrange. They saw that Spencer was holding money
in his hand. The officers exited their vehicle and walked
towards the duo. As they did so the officers reportedly heard
the plaintiff say “Oh f**k.” Officer Colby spoke
with Lagrange while Officer Zanoli spoke with Spencer.
Officer Zanoli asked the plaintiff among other things,
“Do you have anything on you?” Spencer replied,
“I don't think so.” Neither officer observed
a weapon or suggestive bulge in the plaintiff's clothing.
Spencer did not make any furtive gestures and did not reach
for his pockets.
Zanoli nonetheless proceeded to conduct a pat-frisk search of
Spencer. He felt a hard object in Spencer's shirt pocket
that turned out to be a boxcutter, and also felt and
discovered a “small hard object in his shirt
pocket.” The officers apparently suspected the object
to be cocaine (given that Spencer ultimately was charged with
“Possession of Class B”).
just after this discovery, Officer Colby searched Spencer
further and found “two additional small objects”
also suspected to be cocaine.
was at some point placed under arrest.
survive a motion to dismiss, a plaintiff must provide
“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“[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, ” and is met when “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
556). When deciding a motion to dismiss under Rule 12(b)(6),
the Court must “accept as true all well-pleaded facts
set forth in the complaint and draw all reasonable inferences
therefrom in the pleader's favor.” Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting
Artuso v. Vertex Pharm, Inc., 637 F.3d 1, 5 (1st
Cir. 2011)). However, the Court is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Id. at 678 (quoting
Twombly, 550 U.S. at 555). Simply put, the Court should
assume that well-pleaded facts are genuine and then determine
whether such facts state a plausible claim for relief.
Id. at 679.