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 ON DEFENDANT JAMES
FLANAGAN'S MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Kevin Clapp (“Clapp”) alleges that numerous state
and local actors conspired to violate his constitutional
rights in connection with his 2016 arrest for threatening to
kill a state trooper. Presently before the Court is Defendant
James Flanagan's (“Flanagan”) motion to
dismiss the complaint. [ECF No. 60]. Clapp claims that
Flanagan conspired to commit perjury so that Clapp would be
accused of crimes he never committed. [ECF No. 21 ¶ 21
Flanagan, a clerk magistrate, was performing an adjudicatory
function when he issued Clapp's arrest warrant and is
therefore entitled to quasi-judicial or qualified immunity,
the motion to dismiss [ECF No. 60] is GRANTED.
Alternatively, the motion would be granted in any case
because Clapp has failed to allege that Flanagan violated his
purposes of this motion the facts are drawn from the Amended
Complaint [Am. Compl.] and the warrant application and
affidavit referenced therein [ECF No. 61-1], and are viewed
in the light most favorable to Clapp. “In deciding a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure a pro se complaint must be evaluated upon
less stringent standards than those applicable to one drafted
by an attorney.” Ulatowski v. Ponte, 524
F.Supp. 1112, 1114 (D. Mass. 1981); see also Elliott v.
Segal, No. 19-cv-10259-ADB, 2019 WL 5168448, at * 4 n.2
(D. Mass. Oct. 15, 2019) (“Because [Plaintiff] is
pro se [the Court] read[s] [her] complaint with an
extra degree of solicitude.” (quoting Malek v.
Knightly, No. 94-cv-02113, 1995 WL 338178 (1st Cir. June
5, 1995))) (alterations in original). Still, the Court will
“not conjure up unpleaded facts to support . . .
conclusory [allegations].” Cote v. Murphy, No.
04-2538, 152 Fed.Appx. 6, 7 (1st Cir. Oct. 21, 2005) (quoting
Hurney v. Carver, 602 F.2d 993, 995 (1st Cir. 1979))
(alterations in original).
alleges that his mother was beaten to death by a nurse's
aide at her nursing home and passed away on November 21,
2013. [Am. Compl. ¶¶ 1, 24-25]. Clapp believes that
Officer Kathryn McCarron and Chief Silva of the Westwood
Police Department failed to bring charges against his
mother's alleged attacker. [Id.]. He claims that
Officer McCarron was told by an unidentified person not to
prosecute the case and that Chief Silva “did not like
[Clapp].” [Id.]. He further alleges that
numerous state and local government actors conspired to
retaliate against him for challenging the investigation of
his mother's death. [Id. ¶¶ 1-37].
March 8, 2016, Flanagan, the First Assistant Clerk Magistrate
of the Stoughton District Court, signed an arrest warrant for
Clapp for threatening to kill State Trooper John Fanning and
his wife. [Id. ¶¶ 21, 27-28]. According to
the affidavit supporting the warrant, Clapp believed that
Fanning had purposefully covered up the Police
Department's investigation of Clapp's mother's
death. [ECF No. 61-1 at 3-8]. Clapp allegedly sent aggressive
text messages and made calls in which he threatened to kill
Fanning and his wife, referencing that he knew where Fanning
lived. [Id.]. Clapp asserts that the warrant lacked
“evidence or merit” and that Flanagan committed
perjury and conspired with state and local officials to
falsely accuse him. [Id. ¶¶ 1-4, 21].
Clapp was arrested on the warrant and held in custody for one
night. [Id. ¶ 6]. He was subsequently released
on conditions including cash bail and GPS monitoring.
[Id. ¶¶ 10, 12]. On March 9, 2018,
following a trial, Clapp was acquitted by a jury on all
charges. [Id. ¶¶ 1, 13].
March 5, 2018, Clapp filed a complaint against Flanagan and
78 other defendants. [ECF No. 1]. He was subsequently ordered
to file an amended complaint that complied with the Federal
Rules of Civil Procedure. [ECF No. 7]. Clapp filed the
Amended Complaint, which named Flanagan and 40 other
defendants. [ECF No. 21]. On March 14, 2019, the Court
dismissed (1) all claims under Title III of the Americans
with Disabilities Act, (2) all claims against all but eight
defendants, and (3) all official-capacity monetary damages
claims against the remaining defendants. [ECF No. 24]. The
surviving claims are personal capacity claims under 42 U.S.C.
§ 1983 against eight officials, including Flanagan, for
violating Clapp's constitutional rights. [Am. Compl.]
STANDARD OF REVIEW
evaluate a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the Court
must “accept as true all well-pleaded facts alleged in
the complaint and draw all reasonable inferences therefrom in
the pleader's favor.” A.G. ex rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting
Santiago v. P.R., 655 F.3d 61, 72 (1st Cir. 2011)).
The complaint must set forth “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” id. (quoting Fed.R.Civ.P.
8(a)(2)), and should “contain ‘enough facts to
state a claim to relief that is plausible on its face,
'” id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “To cross the
plausibility threshold a claim does not need to be probable,
but it must give rise to more than a mere possibility of
liability.” Grajales v. P.R. Ports Auth., 682
F.3d 40, 44-45 (1st Cir. 2012) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A determination
of plausibility is ‘a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'” Id. at 44
(quoting Iqbal, 556 U.S. at 679). “[T]he
complaint should be read as a whole, not parsed piece by
piece to determine whether each allegation, in isolation, is
plausible.” Hernandez-Cuevas v. Taylor, 723
F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011)).
plausibility standard invites a two-step pavane.”
Maddox, 732 F.3d at 80. First, the Court “must
separate the complaint's factual allegations (which must
be accepted as true) from its conclusory legal allegations
(which need not be credited).” Id. (quoting
Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224
(1st Cir. 2012)). Secondly, the Court “must determine
whether the remaining factual content allows a
‘reasonable inference that the defendant is liable for
the misconduct alleged.'” Id. (quoting
Morales-Cruz, 676 F.3d at 224).
Fourth Amendment provides, in relevant part, that “no
Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”
U.S. Const. amend. IV. Clapp's claims against Flanagan
are best understood as allegations that Flanagan violated his