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Clapp v. Cohen

United States District Court, D. Massachusetts

November 8, 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 ON DEFENDANT JAMES FLANAGAN'S MOTION TO DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Plaintiff 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 (“Am. Compl”)].

         Because 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 constitutional rights.

         I. BACKGROUND

         For 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.[1] “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).

         Clapp 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].

         On 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].

         II.PROCEDURAL HISTORY

         On 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.]

         III. STANDARD OF REVIEW

         To 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)).

         “The 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).

         IV.DISCUSSION

         The 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 Fourth ...


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