DeNicola v. Potter

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS DISTRICT JUDGE

         For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the plaintiff's motion to amend [ECF #12]. The Court also orders that a summons issue for Arthur Tobin and that Paul Keenan be dismissed as a defendant.

         I. BACKGROUND

         On June 24, 2019, pro se litigant John DeNicola filed a complaint [ECF #1] against Quincy Police Officer Cheryl P. Potter (“Potter”) and Quincy District Court Assistance Clerk Magistrate James Comerford (“Comerford”). Invoking the Court's federal question jurisdiction, DeNicola represents that his rights under the First, Fourth, and Fourteenth amendments were violated. DeNicola does not specify whether he is suing these two individuals in their official or individual capacities.

         In an order dated July 19, 2019 [ECF #5], the Court granted the plaintiff's in forma pauperis motion and ordered that summonses issue as to Potter and Comerford. On July 26, 2019, the United States Marshals Service (“USMS”) received from DeNicola the summonses, copies of the complaint, and forms for service. The USMS completed service on Potter and Comerford on July 30, 2019 and August 7, 2019, respectively [ECF ## 9, 11].

         On July 29, 2019, DeNicola filed an amended complaint [ECF #7], as was his right under Rule 15(a)(1) of the Federal Rules of Civil Procedure. Referring to the First, Fourth, and Fourteenth amendments, the amended complaint asserts claims against Potter, Comerford, Quincy District Court Clerk Magistrate Arthur Tobin (“Tobin”) and Quincy Police Chief Paul Keenan (“Keenan”). Summonses have not issued for Tobin and Keenan. The amended complaint does not indicate whether the claims are brought against the defendants in their official or individual capacities.

         On August 5, 2019, Potter, through counsel, filed an answer [ECF # 10] to the original complaint. One of Potter's affirmative defenses is that “[t]he complaint asserts claims against Officer Potter in her official capacity only. Therefore, the proper party defendant is the City of Quincy and Officer Potter should be dismissed as a defendant.” Potter Answer. at 2. Presumably in response this affirmative defense, DeNicola filed a motion [ECF #12] to further amend his complaint “to include official and individual capacity” claims. Mot. at 1. DeNicola also notes that the form he used to draft his complaint does not contain a field to indicate whether a defendant is being sued in an official or individual capacity. DeNicola does not identify any other change he wishes to make to his pleading, and his proposed amended complaint [ECF #13] consists of his first amended complaint [ECF #7] and the one-page motion to amend.

         II. DISCUSSION

         A. Motion to Amend

         Although the Court should “freely give leave” to amend a complaint “when justice so requires, ” Fed.R.Civ.P. 15(a)(2), it has discretion to deny such a request if the proposed amendment would be futile, see In re Montreal, Me. & Atlantic Ry., Ltd., 888 F.3d 1, 12 (1st Cir. 2018).

         The Court allows DeNicola's motion to amend to specify that he is asserting his claims against the defendants in their individual capacities, but the Court denies as futile the motion to amend the complaint to bring claims against the defendants in their official capacities.

         “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). In contrast, official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Id. (quoting Monell v. N.Y. City Dep't of Social Servs., 436 U.S. 658, 690, n.55 (1978)).^[1] Thus, official capacity claims against Comerford and Tobin would be the equivalent of claims against the Commonwealth of Massachusetts, and official capacity claims against Potter and Keenan would be the equivalent of claims against the City of Quincy.

         The Court construes DeNicola's amended complaint as asserting claims under 42 U.S.C. § 1983 for violations of his constitutional rights.^[2] This statute provides that any “person, ” acting under the color of state law, who “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. The Supreme Court has ruled that neither a state nor state officials acting in their official capacities are “persons” within the meaning of § 1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989), thus precluding DeNicola from asserting official capacity claims against Comerford and Tobin, see Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991) (“It is settled beyond peradventure, however, that neither a state agency nor a state official acting in his official capacity may be sued for damages in a § 1983 action.”).

         A municipality or other local government unit is a “person” within the meaning of § 1983. See Monell, 436 U.S. 690-91. However, only parties who have directly participated or are otherwise directly involved in the conduct that deprived the plaintiff of his federal constitutional rights can be held liable under § 1983. See Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005). In the context of a § 1983 claim against a municipality, this means that the plaintiff must allege facts from which a court can reasonably infer that “the municipality itself cause[d] the constitutional violation at issue.” Canton v. Harris, 489 U.S. 378, 385 (1989). “It is only when the execution of the government's policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983.” Id. (alteration in original) ...