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D'Ambrosio v. City of Methuen

United States District Court, D. Massachusetts

March 31, 2019



          M. Page Kelley United States Magistrate Judge.

         I. Introduction.

         This case began when Cameron D'Ambrosio, a student at Methuen High School who had been the victim of bullying, published what he said were rap lyrics on Facebook, in which he arguably threatened to kill unnamed persons who had bullied him at the high school. As a result, he was arrested by Methuen police and charged with violating Mass. Gen. Laws c. 269, § 14(b), which, among other things, makes it a crime to threaten to use or have present a bomb or other weapon at a certain location. After D'Ambrosio was arrested, and a criminal complaint issued in the Lawrence District Court, a dangerousness hearing was held pursuant to Mass. Gen. Laws c. 276, § 58A. A district court judge found D'Ambrosio to be dangerous and ordered him held without bail. Eventually, a grand jury returned a no bill against D'Ambrosio, and he was released, having spent thirty-seven days in custody. Soon after, the criminal complaint against him was nolle prossed by the Commonwealth.

         D'Ambrosio sues five Methuen police officers in their individual capacities, and two of them (Chief Joseph Solomon and Sergeant Walsh) also in their supervisory capacities, for civil rights violations and torts. Regarding Officer Jane Doe, D'Ambrosio has had plenty of time to identify her and has never done so, and therefore the allegations against her are dismissed. See Figueroa v. Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998) (holding that after seventeen months, dismissal was proper as to defendant who had never been identified and served).[2]

         As explained below, the court finds that the officers had probable cause to arrest D'Ambrosio for violating c. 269, § 14, and further finds that that even if they did not have probable cause, they are entitled to qualified immunity. Therefore, the claims against the officers for violating D'Ambrosio's Fourth Amendment rights are dismissed. The court finds that the officers also are entitled to qualified immunity for any claim based on D'Ambrosio's First Amendment rights. Finally, for the reasons set out below, none of the state law claims has merit. Therefore, defendants' motion for summary judgment is allowed, and plaintiff's cross-motion is denied.

         II. Plaintiff's Claims.

         In Count I of the complaint, D'Ambrosio claims that the police officers violated 42 U.S.C. § 1983 by: detaining and frisking him without reasonable suspicion; arresting him without an arrest warrant and without probable cause; falsely and maliciously accusing him of violating c. 269, § 14 and prosecuting him for that crime; interfering with his First Amendment right to freedom of speech; submitting a baseless application for a criminal complaint and signing a baseless criminal complaint; seeking an unreasonable bail amount; making false statements to the press; failing to conduct a proper investigation; wrongly obtaining a search warrant for his home; violating his privacy; wrongly executing the search warrant and seizing property from his home; and maliciously prosecuting him. (#1 at 15-17.)

         In Count II, he alleges that the officers committed common law conspiracy to violate his civil rights in violation of 42 U.S.C. § 1983, with the same wrongful actions alleged as in Count I. Id. at 18-20.

         In Count III, he alleges that the officers violated Mass. Gen. Laws c. 12, §§ 11H and 11I (the Massachusetts Civil Rights Act, or MCRA), repeating the factual allegations from Count I. Id. at 20-21. In Count IV, he alleges that the officers committed common law conspiracy to violate his civil rights under the MCRA. Id. at 21-23.

         He also makes claims of false imprisonment (Count VI), false arrest (Count VII), malicious prosecution (Count VIII), and intentional infliction of emotional distress (Count IX). Id. at 24-27.

         Defendants move for summary judgment, asserting the officers are entitled to qualified immunity because a reasonable police officer would have believed probable cause supported D'Ambrosio's arrest. (#71 at 10.) D'Ambrosio opposes, asserting his arrest was not supported by probable cause, and defendants are not entitled to qualified immunity. (#73.) He also moves for partial summary judgment on the § 1983 claims arising under the First and Fourth Amendments set out in Counts I and II, and his false arrest claim set out in Count VII, asserting that as his arrest was not supported by probable cause, he prevails on those counts as a matter of law. (#67.)

         The court held an oral argument on the cross-motions on March 8, 2019. (#81.) Plaintiff filed a supplemental memorandum after the hearing. (#83.)

         III. Statement of Facts.

         The following narrative is taken from D'Ambrosio's statement of material facts (#69), defendants' statement of material facts (#71), D'Ambrosio's response to defendants' statement (#75), and the exhibits attached to those filings. Both parties attached partial transcripts of certain witnesses' depositions to their filings, which are fragmented. The court requested complete transcripts of the depositions of D'Ambrosio, Sergeant Walsh, and Sergeant Ewing, which are on the docket at ##84-86, [3] and the court also considers the testimony in those depositions. The facts are undisputed unless noted.

         A. D'Ambrosio Posts to Facebook.

         D'Ambrosio was a victim of bullying from the third grade through high school. (#71-1 at 8-9.) In September 2012, during the first week of his senior year at Methuen High School (MHS), he was severely beaten by another student, which he described as “[being beaten] pretty badly, lacerated spleen, so [as a result he] was seeking counseling from the bullying and PTSD.” Id. at 10. At his deposition, he described how, after the incident in which he was beaten, he “couldn't walk through the hallways [of MHS] without someone saying, “oh, there's Cam, the little bitch who got jumped, who got beat up and hospitalized and everyone saw you ….” Id. at 4.

         On the morning of May 1, 2013, D'Ambrosio took the school bus to MHS. (#70-1 at 3; #84 at 31-32.) Rather than attending school, however, he walked to the Nevins Memorial Library, a nearby public library in Methuen. (#84 at 31.) He went to the library instead of going to his classes because he “didn't want to deal with the bullying and stuff” at school. Id. at 32.

         D'Ambrosio often listened to rap music, and he wrote and performed his own rap lyrics. (#70-2 at 1-2.) At the library on the morning of May 1, D'Ambrosio was listening to rap music, and was inspired by a Biggie Smalls song in which the artist uses the phrase “Blow up like the World Trade, ” which D'Ambrosio understood to be a reference to the “first time they tried to blow [the World Trade Center] up.” (#70-1 at 8-9.) He testified at his deposition that because “the Boston Marathon [bombing] just happened, ”[4] he decided to “make a metaphor, let people know how I'm feeling, see how they feel about this ….” Id.

         Using a library computer, he published the following post on his Facebook page to his approximately 490 Facebook friends:

All you haters keep my fuckin' name outcha mouths, got it? What the fuck do I gotta do to get some props and shit huh? Ya'll wanme to fucking kill somebody? What the fuck do these fucking demons want from me? Fucking bastards I aint no longer a person, I'm not in reality, So when u see me fucking go insane and make the news, the paper and the fucking federal house of horror known as the white house, Don't fucking cry or be worried because all YOU people fucking caused this shit. fuck a boston bominb wait till u see the shit I do, I'ma be famous for rapping and beat every murder charge that comes across me!

(#70-3) (syntax and spelling as in original).

         At his deposition, when questioned about what the post meant, D'Ambrosio stated that he was addressing the students at MHS who had bullied him. (#71-1 at 6.) “I felt like all these people that were triggering me and pushing me were just bastards, just fatherless lowlifes who had nothing better to do than to pick on the weak, pick on me ….” Id. “I didn't feel like I was a person. I didn't feel like I belonged with anybody. Went to school, walked through the hallways, felt like a ghost.” Id. When asked what the reference to demons meant, he said, “... I felt like I had a lot of personal demons, and … I just felt like the demons just wanted me - you know, to lash out, to cease to exist, to go and do something stupid, like kill myself or try to hurt someone which I would never do because I've been hurt my whole life by others …. And I was kind of just screaming out for help.” (#84 at 48.)

         B. The Post is Reported to Officer Mellor at MHS.

         Around 12:45 p.m. the day that D'Ambrosio posted the message to Facebook, a student approached James Weymouth, the athletic director and an associate principal at MHS, because she had seen the post and was nervous about it. (#70-4 at 2, 7.) Weymouth said at his deposition that he asked the student to accompany him to an office so he could see the post on a computer screen. Id. at 3. After reading the post, Weymouth contacted Officer Mellor of the Methuen police, who worked as the school resource officer for MHS. (##70-5 at 2-3; 71-4 at 3.)[5] Officer Mellor also spoke to the student who reported the post, and she told him that the post had “made her uneasy and made her frightened, ” because D'Ambrosio usually sat next to her in a class. (#70-5 at 6-7.)

         At his deposition, Officer Mellor recalled reading the post and then asking for it to be printed out, “because [he was] going to need it to be printed so [he] could show it to my - to my boss.” (#70-5 at 5.) He next called his supervisor, Sergeant Walsh, and said, “Sergeant, I have a possible threat.” Id. at 8. He told Sergeant Walsh that it was an emergency, and he should come to the school right away. Id.

         Officer Mellor stated that he and the school administrators considered the threat to be against “the kids at the school, ” or “the people at Methuen High.” (#71-4 at 12-13.) When asked if he thought the threat was to the “physical building, ” he stated, “The people in it. The people. The building. The presence of. Everybody. All inclusive.” Id. at 32. At his deposition, when pressed about why he thought the “haters” to which the post was addressed were students at the school, Officer Mellor said he thought “[a]pparently the young lady that reported it is one of the haters, ” because she was “concerned” by the post. Id. at 29-30. He added, “You know, this is the sort of thing that's making us nervous at school.” Id. When asked why he considered the post to be a threat, he explained that the reference to the Boston Marathon bombing was especially alarming: “… [A]s a whole, when you're making reference to a massacre that happened two weeks earlier than this … and that many people died, over the news all day long, that I'm going to outdo what they do[sic] made people extremely nervous which we took as a threat.” Id. at 31.

         Officer Mellor met Sergeant Walsh at the door of the school. (#70-5 at 10.) Sergeant Walsh read the post, and then asked Office Mellor where D'Ambrosio was. Id. Officer Mellor replied that “Mr. Weymouth was looking for him” and that D'Ambrosio might have left the school. Id. Officer Mellor said that Sergeant Walsh told him, “Go back in … [g]o check. See if they found [D'Ambrosio]. Let me get back to you in a couple - in a few minutes.” Id. at 11. At his deposition, Officer Mellor said that he was under the impression that Sergeant Walsh was “trying to process it himself and determine how we were going to proceed.” Id. at 11.

         C. Sergeant Walsh Confers with Sergeant Ewing, Who Calls a Prosecutor.

         Sergeant Walsh called his supervisor, Lieutenant Kevin Mahoney, and read the post to him over the phone. (#70-6 at 6.) At Mahoney's instruction, Sergeant Walsh contacted the court liaison officer, Sergeant Michael Ewing, and reported the Facebook post, and asked him “what he thought we might have for charges.” Id. at 8.

         At their depositions, Sergeants Walsh and Ewing disagreed about what they discussed over the phone. Sergeant Walsh recalls he read Sergeant Ewing the post word-for-word; Sergeant Ewing believes Sergeant Walsh summarized the content of the post. (#70-6 at 14 (Walsh); #70-7 at 2, 9 (Ewing).) Sergeant Walsh believes they discussed c. 269, § 14; Sergeant Ewing does not recall discussing any specific statute. (#70-6 at 9 (Walsh); #70-7 at 6 (Ewing).) Sergeant Walsh stated at his deposition that Sergeant Ewing said “he'd call me back, he was going to run it by a DA.” (#70-6 at 9.)

         Sergeant Ewing testified at his deposition that immediately after speaking with Sergeant Walsh, Sergeant Ewing called an assistant district attorney (ADA), to whom he spoke for “a couple of minutes.” (#70-7 at 3-4.) He did not remember the name of the ADA. Id. at 5. During the call, Sergeant Ewing “summed [the post] up in roughly two or three lines.” Id. at 7. The ADA responded, “[I]t sounds like it's the threats. If you guys see [D'Ambrosio], you should grab him.” Id. Although Sergeant Ewing does not recall if the ADA identified a particular statute, he recalls discussing with the ADA that the crime was a felony. Id. at 7-9.

         Sergeant Walsh stated that he was driving and was going to help Officer Mellor look for D'Ambrosio, when Sergeant Ewing called him back and said “something along the lines that [Sergeant Ewing had] spoke[n] with an ADA, and that 269, 14, would be a good charge.” (#70-6 at 11.) Sergeant Walsh made the determination to charge D'Ambrosio with that crime based on what the ADA said, “combined with the facts up to that point.” Id. at 11-12. He was not sure if he had looked at the statute at that time. Id. at 12.

         D. D'Ambrosio is Arrested and Charged.

         Around 1:00 p.m., (only about fifteen minutes after the post had first been reported to Office Mellor), Sergeant Walsh met again with Officer Mellor. (#70-5 at 12.) Officer Mellor testified at his deposition that “Sergeant advised me that what - the way he wanted to proceed was that he had either written down or possibly a law - you know, a reference book out, and gave me the chapter and section two six - whatever the chapter and section is that we charged him with.” Id. at 13. Officer Mellor recalled Sergeant Walsh saying, “This is what we're going to go forward with. We're going to charge him with this. It's a felony. It's an arrestable offense.” Id. When, at his deposition, Officer Mellor was asked if he had “any concern” about charging D'Ambrosio under that statute, Officer Mellor replied, “[N]o sir. I was told that by my superior officer [sic] that's what we would be proceeding with, and I said okay.” Id. at 14. Officer Mellor summed up what he recalled Sergeant Walsh saying to him: “He said, What we have, meaning the Facebook post, would violate this statute. Let's proceed with it. That's what I want you to do.” Id. at 14-15.

         Sergeant Walsh instructed Office Mellor that if he could not find D'Ambrosio, he should go to the police station and begin the paperwork for an arrest warrant. Id. at 13-14. After failing to find ...

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