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Arias v. City of Everett

United States District Court, D. Massachusetts

December 4, 2019



          Judith Gail Dein, United States Magistrate Judge.


         This action arises out of the wrongful conviction of Jorge Arias (“Mr. Arias”) for attempted larceny from a Home Depot, in Everett, Massachusetts, and his subsequent incarceration for almost five years by the Commonwealth of Massachusetts, and then by ICE, until his conviction was vacated and he was acquitted following a retrial. The new trial was granted on the grounds that the Everett Police Department had withheld material evidence. It is Mr. Arias' contention that Home Depot, and its then Manager of Loss Prevention, Kris Gaff, also withheld evidence from both trials in the form of surveillance tapes which may have exonerated him as well. The plaintiff Angel Arias (“Angel”) is Mr. Arias' minor son. The plaintiffs brought this suit against the City of Everett, its Mayor Carlo DeMaria, its Chief of Police Steven Mazzie, and Police Officers Jason Leonard and Chris Hannon (the “Municipal Defendants”), and Home Depot USA, Inc. and its former Manager Kris Gaff (“Home Depot Defendants”).

         This matter is before the court on the Home Depot Defendants' motion to dismiss (Docket No. 8) and the Municipal Defendants' motion to dismiss (Docket No. 11). For the reasons detailed here, the Home Depot Defendants' motion is ALLOWED and the Municipal Defendants' motion is ALLOWED IN PART and DENIED IN PART as follows: Count I is dismissed as to the City of Everett and the individual defendants in their official capacities only; Count II is dismissed against the individual defendants in their official capacities only; Count VI is dismissed as to the City of Everett only; and Count VII is dismissed against the individual defendants in their official capacities only. Otherwise, the Municipal Defendants' motion to dismiss is denied.


         The following summarizes the facts as alleged in the plaintiffs' Amended Complaint. (Docket No. 1 Ex. B (“Compl.”)). On the night of February 27, 2007, there was an attempted larceny at the Home Depot located in Everett, Massachusetts. (Compl. ¶ 5). Officer Leonard, a defendant, testified at Mr. Arias' trial that, while working a paid detail at the Home Depot, around 8:00 p.m. he saw a man throwing boxes over the garden center wall. (Id.). The man went back inside the Home Depot. (Id.). Officer Leonard drove over to the Garden Center and confronted a man who had driven a truck over to the area. (Id.). The man got back in his truck and “lurched” toward Officer Leonard, before reversing and driving away. (Id.). A chase ensued involving the Everett, Chelsea, and Boston police departments, including the defendant Officer Hannon of the Everett Police. (Id. ¶¶ 5, 6). Boston police apprehended Mr. Arias. (Id. ¶ 5). Officer Leonard testified that he responded to an address in East Boston where the Boston Police were holding Mr. Arias and he identified Mr. Arias as the man he had seen outside Home Depot. (Id.).

         At Mr. Arias' first trial in 2008, three witnesses were called to testify on behalf of the prosecution. Officer Leonard identified Mr. Arias. (Id.). He described the man who he interacted with at Home Depot as a “Hispanic male” whose face was “burnt in his memory.” (Id.). Officer Hannon testified he could not identify the defendant despite the fact that the man “came right at him” and was “inches away.” (Id. ¶ 6). Finally, defendant Kris Gaff, the Home Depot Asset Protection Manager, testified that he had reviewed the store surveillance video and he could not identify the defendant. (Id.). He also testified as to the value of the goods and that it was common to see people who dressed and looked like the defendant at Home Depot. (Id.).

         Mr. Arias counsel called Jose Palacios, who testified that he had loaned Mr. Arias his old truck so that he could get to work, and that the truck was not in a condition to drive at high speeds. (Id. ¶ 7). Mr. Arias also testified, professing his innocence and testifying that he had gone to work in Peabody and then driven straight home to East Boston. (Id.). Mr. Arias testified that he had never been to the Home Depot in Everett and that he did not even know where it was located. (Id.).

         On August 4, 2008, a jury convicted Mr. Arias. (Id. ¶ 8). He was found guilty of larceny over $250, assault with a dangerous weapon, and reckless operation of a motor vehicle. (Id.). He was sentenced to 4½ years in jail. (Id.). During his incarceration, Mr. Arias suffered “severe emotional distress, anxiety, post-traumatic stress, and embarrassment, loss of employment and opportunities, and loss of residency[.]” (Id. ¶16). He maintained his innocence throughout. (Id. ¶ 9). Upon Mr. Arias' conviction, his minor son, Angel, went to live with his aunt and uncle who were in the United States. (See id. ¶ 12).[1] Angel's separation from his father caused him to become angry and depressed. (Id.). He went for mental health counseling and would cry every day because his father was not able to be with him. (Id.). He had a difficult time in school, his grades suffered, and he had to repeat a grade. (Id.).

         “At the time of his trial, Mr. Arias, a native of El Salvador, was a legal resident of the United States pursuant to temporary protected status.” (Id. ¶ 10). He lost that status as a result of his conviction so, after serving his sentence, Mr. Arias was taken into custody by ICE where he remained until he was released on bond on January 17, 2013. (Id. ¶¶ 10-11, 14). During that time, Angel continued to live with his aunt and uncle. (Id. ¶ 12).

         Sometime prior to January 17, 2013, Mr. Arias' conviction was vacated. (See id. ¶ 14). It was discovered that exculpatory evidence had not been produced or disclosed to the defense. (Id. ¶ 13). The plaintiffs originally described this missing evidence as a “call log record from the Chelsea Police Department [that] indicated that there were three suspects occupying the black pickup truck that the officers were chasing and not just one occupant as officer Leonard testified to and wrote in his police report.” (Id.). In the Amended Complaint, the plaintiffs allege that both Officers Hannon and Leonard testified and reported that there was only one occupant in the truck. (Id. ¶ 38).

         At Mr. Arias' second trial in 2014, Officer Leonard, Officer Hannon, and Kris Gaff again testified. (Id. ¶ 36). By the time of the second trial, Kris Gaff was no longer employed by Home Depot but was a police officer with the Everett Police Department. (Id. ¶ 32). According to the plaintiffs, Mr. Gaff testified as a police officer at the second trial. (Id.). Again, at the second trial Home Depot did not produce the potentially exculpatory evidence of either the Home Depot surveillance video or the Home Depot Asset Protection reports. (Id. ¶ 31). However, the Chelsea call log was admitted into evidence at the second trial, and Mr. Arias was found not guilty. (Id. ¶ 14).

         According to the plaintiffs, Mr. Arias “continues to suffer from the consequences of his arrest dating back to 2007, the first trial in 2008 and the continued prosecution of him at the second trial in 2014 and continuing into 2015, 2017, and 2018.” (Id. ¶ 33). Mr. Arias continues to be subject to immigration proceedings. (Id. ¶ 34). He currently has no legal status as his temporary protected status was removed following his first conviction. (Id.). Imminent deportation was stayed by his finding of not guilty. (Id.). Mr. Arias continues to “suffer[] mentally and physically due to actions taken by Defendants: Police Officers Hannon and Leonard, and Home Depot and its' [sic] asset protection manager Kris Gaff.” (Id.).

         Angel also continues to suffer both physically and emotionally. (Id. ¶ 35). He was young while his father was going through two criminal trials, years of incarceration, and immigration proceedings. (Id.). He continues to suffer because Angel is aware his father could be deported at any time. (Id.).

         Additional facts will be provided below where appropriate.

         Procedural History

         The plaintiff filed the instant suit on September 27, 2017 in Essex Superior Court. (See Docket No. 1 at 1). The complaint alleged 15 counts: Count I - Civil Rights Violations Under Mass. Gen. Laws ch. 12, § 11H-1, Count II - Deliberate Indifference, Count III - Negligent Training, Count IV - Negligent Supervision, Count V - Mass. Tort Claims Act, Count VI -Intentional Infliction of Emotional Distress, Count VII - Negligent Infliction of Emotional Distress, Count VIII - False Imprisonment, Count IX - Abuse of Process, Count X - Malicious Prosecution, Count XI - Wrongful Conviction, Count XII - False Arrest, Count XIII - Defamation, Count XIV -Negligence, Count XV - Pendant Causes of Action. (Id. at Ex. A.).

         In September 2018, the Superior Court dismissed claims III, IV, V, VIII, XI, XII, XIII, XIV and XV with prejudice. (Docket No. 22 at p. 266/818 (“Mem. of Decision”)). Counts I, II, VI, and VII were dismissed, in part, without prejudice. (Id.). Superior Court Judge Lu dismissed as untimely the Count I and II claims, “arising out of his alleged misidentification, arrest, and incarceration that commenced on or about February 27, 2007.” (Mem. of Decision at 2.). However, Judge Lu dismissed the claims without prejudice because “[i]t is unclear to the court whether the complaint alleges civil rights violations that may have accrued during Arias's incarceration or his re-trial.” (Id.). Similarly, Judge Lu dismissed as untimely Counts VI and VII, “based upon the arrest of Jorge Arias, and the alleged false accusations and false testimony at his trial that concluded on August 4, 2008.” (Id. at 3). Judge Lu granted plaintiffs the opportunity to amend their complaint to clarify the basis for these claims. (Id.).

         Plaintiffs filed an Amended Complaint in Superior Court on March 7, 2019. (Docket No. 1 Ex. B). The Amended Complaint re-alleges Counts I, II, VI, VII. (Id.).[2] Defendants jointly removed the case to federal court pursuant to 28 U.S.C. § 1331 on the grounds that Counts I and II present substantial federal issues. (Id.).[3] The Home Depot Defendants then filed their motion to dismiss for failure to state a claim. (Docket No. 8). The Municipal Defendants subsequently filed a motion to dismiss. (Docket No. 11). This court held a hearing regarding the motions to dismiss and took the matter under advisement. (Docket No. 27).


         A. Standard of Review

         Motions to dismiss under Rule 12(b)(6) test the sufficiency of the pleadings. When confronted with such a motion, the court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. See Cooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir. 1999). As the First Circuit has explained, in considering the merits of a motion to dismiss, the court proceeds in two steps. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). First, we “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements.” Id. Second, we “take the complaint's well-pled (i.e., non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief.” Id. Dismissal is only appropriate if the complaint, so viewed, fails to allege “a plausible entitlement to relief.” See Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007)). “Plausible . . . means something more than merely possible[.]” Schatz, 669 F.3d at 55. “The bottom line is that the combined allegations, taken as true, must state a plausible, not merely conceivable, case for relief.” Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 718 (1st Cir. 2014) (internal citations and quotations omitted). “Engaging in this plausibility inquiry is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Germanowski v. Harris, 854 F.3d 68, 72 (1st Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)).

         In addition, this case is before the court on a removal following a State court order ruling on a motion to dismiss. “Whenever any action is removed from a State court to a district court of the United States . . . [a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.” 28 U.S.C. § 1450 (2012). The statute is designed to promote judicial efficiency when shifting between state and federal court by giving full force and effect to state proceedings so that they do not need to be duplicated in federal court. Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 435-36, 94 S.Ct. 1113, 1122, 39 L.Ed.2d 435 (1974); Concordia Partners, LLC v. Pick, 790 F.3d 277, 279 (1st Cir. 2015) (“we read § 1450-in keeping with its text-merely to preserve the status quo in the removed case. So read, § 1450 simply ensures that the state court order ‘remain[s] in full force and effect,' and thus that the filing of the notice of removal does not have the consequential effect of wiping that state court order away.”).

         Applying these principles to the instant case compels the conclusion that the Home Depot Defendants' motion to dismiss must be allowed.

         B. The Litigation Privilege [4]

         As an initial matter, the actions of Kris Gaff are protected by the litigation privilege, and cannot form the basis of his or Home Depot's liability.[5] For this reason alone, the claims against Mr. Gaff must be dismissed, as should the claims seeking to hold Home Depot vicariously liable for Mr. Gaff's conduct.

         “It is well established that statements made by a witness or party during trial, if pertinent to the matter in hearing, are protected with an absolute privilege[.]” Correllas v. Viveiros, 410 Mass. 314, 320, 572 N.E.2d 7, 11 (1991), and cases cited. Thus, “[s]tatements made in the course of a judicial proceeding that pertain to that proceeding are . . . absolutely privileged and cannot support [civil liability].” Patriot Group, LLC v. Edmands, __ N.E.3d __, 2019 WL 5959611, *4 (Mass. App. Ct. Nov. 13, 2019) (quoting Correllas, 410 Mass. at 319, 572 N.E.2d at 10). “Moreover, the absolute litigation privilege immunizes the maker of the statements from any civil liability arising from those statements” regardless of the cause of action alleged. Encompass Ins. Co. of Mass. v. Giampa, 522 F.Supp.2d 300, 308 (D. Mass. 2007) (citation omitted). “To rule otherwise would make the privilege valueless if an individual would then be subject to liability under a different theory.” Id. (quoting Doe v. Nutter, McClennen & Fish, 41 Mass.App.Ct. 137, 141, 668 N.E.2d 1329, 1333 (1996)). The absolute privilege for “[s]tatements made in the course of a judicial proceeding which pertain to that proceeding” applies even if the statements are made “with malice or in bad faith.” Correllas, 410 Mass. at 319, 572 N.E.2d at 10. Thus, whether Mr. Gaff is considered as an employee of Home Depot, or a Police Officer for the City of Everett, his testimony at trial cannot form the basis of the plaintiffs' claims.

         Moreover, to the extent that the plaintiffs are challenging Mr. Gaff's conduct apart from his trial testimony, even the most liberal reading of the complaint establishes that the claim against Mr. Gaff (and Home Depot's liability for his actions) are based on conduct that is protected by the litigation privilege. Thus, the plaintiffs argue that Mr. Gaff

testified at both trials about the existence of video surveillance or CCTV footage of the suspect but then failed to produce said video surveillance or CCTV footage that had been in his custody and control. By initiating these actions, Kris Gaff on behalf of Home Depot took an active role in prosecuting the Plaintiff on one count of larceny. Without the involvement of Kris Gaff and Home Depot, the police would not have been able to charge or arrest the Plaintiff on the larceny charge. Furthermore, Kris Gaff and the Home Depot continued their involvement in prosecuting the Plaintiff when he testified on behalf of Home Depot at the second trial. Kris Gaff became a police officer for the City of Everett before the second trial and therefore was working very closely again with Officers Leonard and Hannon. All three officers testified at the second trial against the Plaintiff.

(Pls. Home Depot Opp'n at 3). Assuming, arguendo, that any of this conduct could be actionable, [6] all of this conduct relates to the initiation and/or prosecution of a lawsuit, and is therefore privileged. See Encompass Ins. Co., 522 F.Supp.2d at 308. The litigation privilege applies to statements made outside of the courtroom that are “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding[.]” Leavitt v. Bickerton, 855 F.Supp. 455, 456 (D. Mass. 1994) (quoting Restatement (Second) of Torts § 586 (1989) (describing scope of privilege as applied to attorneys). See also Dear v. Devaney, 83 Mass.App.Ct. 285, 292, 983 N.E.2d 240, 246 (2013) (“An absolute privilege has also been extended to witness statements made to the police.”). Consequently, the claims against Home Depot based on Mr. Gaff's conduct, and against Mr. Gaff, are barred by the litigation privilege.

         Assuming, arguendo, that the litigation privilege does not result in the dismissal of all the claims against Home Depot and Mr. Gaff, a review of each Count establishes that Home Depot's motion to dismiss must be allowed.

         C. Count I: Civil Rights Violation Under Mass. Gen. Laws ch. ...

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