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Spencer v. City of Boston

United States District Court, D. Massachusetts

January 9, 2019

BARRY SPENCER II, Plaintiff,
v.
CITY OF BOSTON, OFFICER ZANOLI, OFFICER COLBY, and SUPERVISOR DANIEL C. KEANE Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANT OFFICER CHRISTOPHER COLBY'S MOTION TO DISMISS (DKT. NO. 73)

          DONALD L. CABELL, U.S.M.J.

         I. Introduction

         Barry 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 rights.[1]

         Pending 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 substitution).

         Focusing 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.

         II. Relevant Background

         According 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.

         As the 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.

         Officer 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”).

         Apparently just after this discovery, Officer Colby searched Spencer further and found “two additional small objects” also suspected to be cocaine.

         Spencer was at some point placed under arrest.

         III. Legal Standard

         To 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.

         IV. ...


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