United States District Court, D. Massachusetts
KEVIN S. CLAPP, Plaintiff,
MARK COHEN, JOHN FANNING, VINCENT NOE, BRUCE TOBIN, BRIAN TULLY, SCOTT KEARNS, BRIAN BROOKS, AND JAMES FLANAGAN, Defendants.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
reasons stated below, the Court: (1) dismisses the action
against Governor Charles Baker, Secretary of Public Safety
Daniel Bennett, District Attorney Michael Morrissey,
Commissioner of Probation Edward Dolan, Chief Probation
Officer Dennis Maietta, Deputy Commissioner of Probation
Department Diane Fasano, State Police Colonel (ret.) Richard
McKeon, State Police Colonel Kerry Gilpin, Sheriff Joseph
McDonald, Jr., Hon. Paul Dawley, Hon. Michael Vitali, Hon.
Julie Bernard, Hon. Steven Thomas, Hon. Paula Clifford, Hon.
Antoinette Leoney, Hon. Robert Ziemian, Clerk Arthur Tobin,
Clerk Daryl Manchester, Clerk Robin Vaughn, Terrance
McCarthy, George Brewster, Stephen Nickerson, Sgt. Cruz,
Trooper Richard Solimini, State Police Lieutenant Gerard
Mattaliano, State Police Lieutenant Michael Richards, Trooper
John McCarthy, Trooper Andrew Da Silva, Trooper Andrew Mason,
Leo Murray, Assistant District Attorney Kevin Mullen, Police
Chief Silva and Officer Kathryn McCarron; and, (2) issues
summonses as to defendants, Trooper Mark Cohen, Trooper John
Fanning, Trooper Vincent Noe, Trooper Bruce Tobin, Trooper
Brian Tully, Trooper Scott Kearns, Trooper Brian Brooks, and
First Assistant Clerk Magistrate James Flanagan.
March 5, 2018, pro se Plaintiff Kevin S. Clapp
(“Clapp”) filed a seven-page complaint against 79
defendants. [ECF No. 1]. The complaint presented a confusing
narrative of Clapp's interactions with politicians, law
enforcement, the state courts and others. On March 9, 2018,
after being granted in forma pauperis status, Clapp
was ordered to file an amended complaint that complied with
the basic pleading requirements of the Federal Rules of Civil
Procedure. [ECF No. 7]. On September 21, 2018, after several
extensions were provided, Clapp filed a 14-page amended
complaint against 41 defendants covering multiple,
independent claims against several groups of defendants as
follows: (1) the Governor; (2) the Secretary of Public
Safety; (3) the Plymouth County Sheriff; (4) Norfolk County
District Attorney and personnel; (5) Massachusetts State
Police personnel; (6) Westwood police personnel; (7) state
court judges; (8) a clerk magistrate; (9) state court clerks;
(10) state probation personnel; (11) a private ambulance
owner and former employee; (12) a witness at Clapp's
criminal trial; and (13) a private attorney. [ECF No. 21
Facts Alleged in the Amended Complaint
Court has distilled Clapp's Amended Complaint to its
apparent core claims which are described more fully below.
Clapp Attempts to “Get Justice” for his
August 23, 2013, Clapp's mother was allegedly beaten by a
nurse's aide at a nursing home. Am. Compl. ¶¶
1, 24-25. She passed away from her injuries on November 21,
2013. Id. Clapp believes that Westwood Police
officer Kathryn McCarron and Westwood Police Chief Silva
unlawfully failed to bring charges against the alleged
attacker. Id. ¶¶ 24-25. Clapp asserts that
McCarron was told by an unidentified person not to prosecute
the case, and that Chief Silva was motivated not to bring
charges, possibly because he “did not like
[Clapp].” Id. Clapp met Governor Charlie Baker
three times, seeking his assistance, and on the last
occasion, in October 2017, Baker told Clapp that he had
chosen not to assist him. Id. ¶ 1. Clapp now
claims that, instead of helping him, Baker engaged in
“a campaign at retaliation through numerous state
agencies, in which [Clapp] was . . . told by several upper
level individuals that Governor . . . Baker is out to get
January 2014, Norfolk County District Attorney Michael
Morrisey approached Clapp outside of a church and said,
“Your days are numbered, ” and, “If . . .
you were smart you would drop your mother's murder
case.” Id. ¶ 2. He also told Clapp that
he would “go to the very end to protect his elected job
position and his department” against anything Clapp
made public. Id. ¶ 2.
Clapp is Arrested and Charged with Threatening to Kill a
State Trooper and Spouse
March 8, 2016, First Assistant Clerk Magistrate James
Flanagan of the Stoughton District Court signed an arrest
warrant for Clapp on the purportedly meritless charges of
threatening to kill State Trooper John Fanning and his
wife. Id. ¶¶ 21, 27-28.
Flanagan “conspired to commit perjury so [Clapp] would
be accused of all crimes that [he] never did.”
Id. ¶ 21.
was arrested, apparently at his home, on March 8, 2016.
Id. ¶ 18. With respect to the arrest, as best
the Court can discern, Clapp alleges that State Troopers John
M. Fanning, Bruce J. Tobin, Brian P. Tully and Scott Kearns
“used excessive force, violated their own use of force
policy, never showed any arrest warrant . . ., never
identified themselves as state police officers, showed no
badges, guns, flashlights or anything to show their authority
of a badge.” Id. ¶¶ 2-4. Tobin, and
possibly other officers, broke Clapp's glasses, spit on
him, kicked him and threw hot coffee on him. Id.
¶ 34. The Amended Complaint is unclear as to which other
officers were involved, but states, “Also, Trooper
Vincent Noe, Middlesex District Attorney's Office.”
being booked by the State Police at the Middleboro State
Police Barracks, Clapp was told by an unnamed individual that
he would be bailed by Clerk Daryl Manchester. Id.
¶ 17. After hearing someone in the barracks “who
sounded like a clerk, ” Clapp asked an unidentified
Trooper, “Where is the clerk?” Id. The
unidentified Trooper responded, “Oh don't worry, he
said you're not bailable.” Id. Clapp told
the officer that it “was a conspiracy” because he
had no record. Id. Clapp claims that based upon his
discussions with other unnamed clerks of other courts that he
should have been bailable. Id. ¶17. Clapp
claims that when he called Clerk Manchester two weeks after
the arrest, Clerk Manchester refused to take his call and
eventually when Clapp did manage to reach him, Clerk
Manchester told Clapp, “Don't ever call me again,
” and hung up the telephone. Id.
Transport to the Hospital
point on March 8, 2016, Clapp was brought from the Middleboro
State Police Barracks to a hospital because of injuries
sustained during his arrest. Id. ¶ 26. Brewster
Ambulance employee Stephen Nickerson and State Police
Sergeant Mark Cohen loaded Clapp, who was handcuffed and
shackled to a stretcher, onto the ambulance. Id. As
they loaded Clapp, “they started to laugh and tip [the]
stretcher over and called [Clapp] a ‘fat
fuck.'” Id. In the ambulance, “they
made jokes” about Clapp. Id. Cohen said to
Nickerson, “Want to run an IV line with cyanide to
knock him out?” Id. Nickerson replied,
“If we had any.” Id. Upon arrival at the
hospital, Clapp was unloaded, and they called him a
“fat fuck” again. Id. Clapp alleges that
Cohen laughed as he pricked Clapp in the arm with a needle,
and that his arm hurt and turned black and blue. Id.
Hold Over at Plymouth County Jail
night of March 8, 2016, Clapp was sent to the Plymouth County
House of Correction and Jail for one night. Id.
¶6. Clapp claims this was an error, and that while there
he was stripped of his clothes, given green plastic to wrap
himself, and was made to sleep on a 12-inch wide bench, with
no pillow or blanket. Id. Clapp alleges that Sheriff
Joseph McDonald was “negligent” in not properly
supervising his jail personnel on that occasion. Id.
was arraigned on March 9, 2016 before state District Court
Judge Antoinette Leoney. Id. ¶12. At
Clapp's arraignment, Assistant District Attorney Kevin
Mullen, even knowing Clapp had no prior criminal record,
sought bail of $50, 000 because the victim was a state
trooper. Id. ¶¶ 12, 27. Judge Leoney set
bail at $1, 500, and placed Clapp on GPS monitoring and other
conditions. Id. ¶ 12.
Clapp is Bailed, Accuses State Police of ...