United States District Court, D. Massachusetts
RICHARD A. JELLYMAN, Plaintiff,
CITY OF WORCESTER, and OFFICER MICHAEL SPALATRO, JARRET WATKINS, PAUL CYR, NATHAN LAFLECHE and ADAM J. BULLOCK, Defendants.
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
DISMISS (DOCKET NO. 11)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
A. Jellyman (“Plaintiff”) brought this claim for
excessive force (Count I), assault and battery (Count II),
intentional infliction of emotional distress (Count III),
violation of civil rights pursuant to 42 U.S.C. § 1983
(Count IV), and conspiracy (Count V) against the City of
Worcester, Officers Michael Spalatro, Jarret Watkins, Paul
Cyr, and Nathan Lafleche, and Adam J. Bullock. Defendants Cyr
and Watkins (“Defendants”) move to dismiss Counts
I, III, and V against them pursuant to Fed.R.Civ.P. 12(b)(6)
for failure to state a claim upon which relief can be
granted. For the reasons stated below, Defendants motion to
dismiss (Docket No. 11) is granted
in part and denied in part.
following facts are taken from Plaintiff's complaint and
are assumed to be true at this stage of the litigation.
(Docket No. 1). On March 6, 2015, Plaintiff began to
experience a hypoglycemic event as he was leaving a business
establishment in Worcester. In a confused and impaired
condition, he began to operate his vehicle and backed into a
parked car. Officer Michael Spalatro witnessed the event and
attempted to stop Plaintiff. Plaintiff, however, did not heed
Officer Spalatro's instructions and drove off. As he did,
his rear-view mirror made contact with Officer Spalatro's
hip. Officer Spalatro called the police dispatcher and a BOLO
was called for Plaintiff's vehicle. A few blocks from
this scene, Plaintiff was stopped without incident by Officer
LaFleche. LaFleche then radioed Spalatro that Plaintiff was
in custody and asked him to come to the scene to identify
Plaintiff. Officer Spalatro arrived soon after and approached
Plaintiff who was handcuffed and, without warning, punched
him in the face. Officer Spalatro failed to document his use
of force in violation of the Worcester Police
Department's policies. Similarly, none of the other
officers reported Spalatro's actions in written reports
to any of their superiors.
12(b)(6) motion is used to dismiss complaints that do not
“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.
“‘some latitude may be appropriate' in
applying the plausibility standard in certain types of cases
. . . in which a material part of the information needed is
likely to be within the defendant's control.”
Garcia-Catalan v. United States, 734 F.3d 100, 104
(1st Cir. 2013). Moreover, the First Circuit has noted that
“the plausibility inquiry properly takes into account
whether discovery can reasonably be expected to fill any
holes in the pleader's case.” Id.; see also
Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir.
2012) (“Where modest discovery may provide the missing
link, the district court has discretion to allow limited
discovery and, if justified, a final amendment of the
Count I: Failure to Protect/Intervene
Fourth Amendment not only protects individuals from excessive
force, it also imposes an affirmative duty on police officers
to intervene to prevent it. See Gaudreault v. Salem,
923 F.2d 203, 207 n.3 (1st Cir. 1990). Therefore, an officer
present at the scene of a stop or arrest who observes the use
of excessive force, but fails to intervene, violates the
Fourth Amendment if he had the means and opportunity to
prevent or mitigate the harm to the victim. Id.
However, “mere presence [of an officer] at the scene,
without more, does not by some mysterious alchemy render him
responsible under Section 1983 for the actions of a fellow
officer.” Calvi v. Knox County, 470 F.3d 422,
428 (1st Cir. 2006). Consequently, an “officer cannot
be held liable for failing to intercede if he has no
‘realistic opportunity' to prevent an
attack.” Gaudreault, 923 F.2d at 207 n.3.
Plaintiff has plead facts that make it plausible that
Officers Cyr and Watkins could have intervened. Whether
discovery will reveal Officers Cyr and Watkin's awareness
of the impending assault remains to be seen. This is a case
where the information needed is within Defendants'
control and discovery may, or may not, establish the
Count III: Intentional Infliction of Emotional Distress
order to maintain a cause of action for intentional
infliction of emotional distress under Massachusetts law, the
plaintiff must establish that (1) the individual defendant
intended to inflict emotional distress or that they knew or
should have known that emotional distress was the likely
result of their conduct; (2) the conduct of the defendant was
“extreme and outrageous” and “beyond all
possible bounds of decency and was utterly intolerable in a
civilized community;” (3) the actions of the defendant
were the cause of the plaintiff's distress; and (4) the
emotional distress sustained by the plaintiff was