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Clapp v. Cohen

United States District Court, D. Massachusetts

March 14, 2019

KEVIN S. CLAPP, Plaintiff,
v.
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.

         For the 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.

         I. BACKGROUND

         A. Procedural History

         On 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 (“Am. Compl.”)].

         B. Facts Alleged in the Amended Complaint[1]

         The Court has distilled Clapp's Amended Complaint to its apparent core claims which are described more fully below.

         1. Clapp Attempts to “Get Justice” for his Mother's Death

         On 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 [Clapp.]. Id.

         In 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.

         2. Clapp is Arrested and Charged with Threatening to Kill a State Trooper and Spouse

         a. The Warrant

         On 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.[2] Id. ¶¶ 21, 27-28. Flanagan “conspired to commit perjury so [Clapp] would be accused of all crimes that [he] never did.” Id. ¶ 21.

         b. The Arrest

         Clapp 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.” Id.

         c. The Booking

         While 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.

         d. Transport to the Hospital

         At some 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.

         e. Hold Over at Plymouth County Jail

         On the 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.

         f. The Arraignment

         Clapp 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.

         3. Clapp is Bailed, Accuses State Police of ...


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