Background
1. The Attack
The following facts are taken from Plaintiff's Amended Complaint and assumed to be true at this stage of the litigation.
On August 14, 2000, a woman named M.H. awoke in her bedroom in Worcester, *88Massachusetts to a man wearing only a t-shirt, underwear, and a cloth wrapped around his head standing at the foot of her bed. When M.H. asked him what he was doing there, he attacked her, beating her with a wooden object. As he climbed on top of her, she kicked and screamed causing her attacker to flee. The attack occurred at 4:00 a.m. and M.H.'s blinds were closed.
She immediately called 911. Her initial description was only that her attacker was a white male, that he did not have hair, and what he was wearing. She repeatedly emphasized that she had never seen her attacker before. Defendants Burnes, Turgeon, Benedict, and Donohue then arrived on the scene. M.H. was not able to provide any further description of her attacker and again repeated that she had never seen the man before.
2. Identification
Later that morning, Defendants Burnes, Turgeon, and Benedict canvassed M.H.'s apartment complex to look for witnesses. They could not find anyone who could identify the assailant but discovered that Plaintiff lived in a different building of the apartment complex. Defendants knew Plaintiff because of his past struggles with drug addiction and were not fond of him. At the time of the investigation, Plaintiff was on probation for drug offenses. In fact, Worcester police had been trying to find him in connection with a purported probation violation but had not located Plaintiff perhaps because he had been in an inpatient treatment program and had not been in contact with police.
Defendants spoke to a neighbor of M.H., who falsely alleged that Plaintiff had stolen his motorbike. According to Plaintiff, he had helped the neighbor recover the stolen motorbike and when the neighbor refused to pay the promised reward, a dispute ensued between the two. Because of this disagreement, the neighbor told Defendants he suspected Plaintiff had attacked M.H. Defendants knew that the neighbor's suspicion of Plaintiff stemmed from the motorbike dispute. Nonetheless, Defendants cited the neighbor's lead as a reason to suspect Plaintiff in the attack. According to Plaintiff, this was simply pretext. Once Defendants learned Plaintiff lived in the complex, they decided Plaintiff was the perpetrator, stopped looking for the true attacker, and reverse-engineered the investigation to implicate him.
More than 24 hours after the attack, Defendants Hazelhurst and Doherty met with M.H. Defendants utilized a suggestive photo array which caused M.H. to identify Plaintiff. Instead of using photos that matched M.H.'s description of the perpetrator (which Plaintiff did not match), they showed a photo of Plaintiff and two other men that closely resembled him. The array therefore gave M.H. a choice between Plaintiff-who she had seen before because he lived in the apartment complex-and two strangers. Notably, M.H. previously described her attacker as having no hair whereas Plaintiff did have hair.
Moreover, Defendants assembled the array knowing the attack occurred in a dark bedroom, while M.H. was covering her face and eyes, and that the attacker had something around his head. Plaintiff alleges that it follows that Defendants knew M.H.'s identification was highly likely to be inaccurate and that she would be susceptible to suggestive techniques.
Before M.H. reviewed the photos, Defendants stressed that M.H. had to identify someone in the array for the case to proceed. During the identification procedure, Defendants Hazelhurst and Doherty told M.H. Plaintiff's name and that he lived in her apartment complex. Plaintiff contends this was done to suggest to M.H. whom they believed was the perpetrator among *89the nine photographs. M.H. subsequently identified Plaintiff and Defendants Hazelhurst and Doherty told her that she correctly identified the perpetrator.
Thereafter, M.H.'s description of her attacker predictably became more detailed. In short, the description suddenly sounded like Plaintiff. For the first time, M.H. noted that her attacker had a "familiar face" despite the fact she had previously said the exact opposite. Also unsurprisingly, M.H. became convinced Plaintiff was her attacker. She repeated her identification of him during his criminal proceedings and her eye witness account implicated him in the crime.
3. Destruction of Evidence
Defendants recovered part of a chair rung from M.H.'s bedroom, presumably the wooden object her attacker used to beat her. Before fingerprint and forensic evidence could be developed, however, Defendant Donohue and other Defendants allowed it to be destroyed. Further, Defendants also found fingerprints that the attacked left on the window where he entered the apartment. Defendants similarly allowed that evidence to be destroyed.
Further, after the attack a pair of men's shorts were found that did not belong to M.H. or anyone else who had lawfully been in her apartment. Defendants believed that the shorts belonged to the perpetrator as he had already stripped down to his underwear when M.H. awoke and fled before getting dressed. The shorts also contained semen which the Defendants tested. When the genetic profile did not match Plaintiff, Defendants manipulated details to make it appear the shorts did not belong to the true attacker.
Plaintiff argues that this evidence was destroyed or manipulated in bad faith in order to frame Plaintiff for a crime he did not commit.
4. Conviction and Exoneration
Plaintiff was tried for armed burglary, assault and battery with a weapon, and assault with the intent to rape. He was acquitted of assault with intent to rape but convicted of the other chargers and sentenced to 12 to 20 years in prison.
On May 31, 2016, the Superior Court granted Plaintiff a new trial. After an evidentiary hearing, the court suppressed M.H.'s identification as the "procedure was unduly suggestive." On November 14, 2017, the Commonwealth subsequently dropped all charges.
Standard
A defendant may move to dismiss, based solely on the complaint, for the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly ,
In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc. ,
Discussion
1. Sufficiency of Allegations
a. Individual Defendants
Defendants argue that the factual allegations of Plaintiff's Amended Complaint fail to establish a plausible claim against Defendants Burnes, Turgeon, Benedict and Donohue. Plaintiff argues that Defendants conspired to violate his rights and that at this stage of the litigation he is not required to know the intimate details of that conspiracy.
In a Section 1983 case, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal ,
However, when the circumstances are such that it is unlikely for a plaintiff to know some material facts, courts have applied a more lenient pleading standard. See e.g. , Saldivar v. Racine ,
Courts have applied this more lenient standard in cases like this one where the defendants are part of a group and the circumstances are such that it is unlikely a plaintiff would be able to identify specific defendants responsible for each injury before discovery. In Echavarria v. Roach , for instance, the court noted "[i]n this case, Plaintiff is not attempting to claim that all Defendants are liable for the actions of a few; rather, Plaintiff asserts he is unable to know, without further discovery, which Defendant committed or participated in which particular act."
Here, Plaintiff has "identified a discrete group of Defendants that he reasonably believes participated in the conduct that forms the basis of his claims." Echavarria ,
b. Monell Claims
Defendant City of Worcester argues that Plaintiff has not sufficiently pled its Monell claim. Although "a municipality cannot be held liable under § 1983 on a respondeat superior theory," § 1983"imposes liability on a government that, under color of some official policy, 'causes' an employee to violate another's constitutional rights." Monell v. Dep't of Soc. Servs. Of City of New York ,
In his Amended Complaint, Plaintiff alleges that the City of Worcester had policies, practices, and deficient training procedures that caused individuals suspected of criminal activity, such as Plaintiff, to be subjected to manipulated and distorted lineup procedures, deprived of exculpatory evidence, subjected to criminal proceedings based on false evidence, and deprived of their liberty without probable cause. (Docket No. 4, ¶¶ 88-90). According to Plaintiff, these procedures were promoted by leaders, supervisors, and policy makers in Worcester. Id. ¶ 91. Consequently, these "widespread practices ... were so well settled as to constitute the de facto policy of the City of Worcester." Id. ¶ 92. In addition, "the constitutional violations committed against Plaintiff were committed with the knowledge or approval of persons with final policymaking authority for the City of Worcester and the Worcester Police Department, or were actually committed by persons with such final policymaking *92authority." Id. ¶ 93. Finally, Plaintiff alleges that these "policies, practices, and customs ... were the moving force behind" the violations of Plaintiff's constitutional rights. Id. ¶ 94.
These allegations are sufficient to survive the motion to dismiss. Plaintiff correctly argues that his allegations closely mirror those the First Circuit found sufficiently pled in Haley v. City of Boston ,
Plaintiff's allegations are much like the plaintiff's in Haley . Plaintiff has painted a similarly ugly but plausible picture of Worcester. He is entitled the opportunity to prove his picture is an accurate portrayal.
1. Count I
a. Issue Preclusion and Collateral Estoppel
Defendants argue that issue preclusion and collateral estoppel bar Plaintiff's Due Process claims because they were or should have been raised during his criminal proceedings. "It is 'well-established' that the doctrine of issue preclusion applies to civil rights claims brought under § 1983." Echavarria ,
Defendants contend that the Superior Court and Appeals Court already addressed Plaintiff's Due Process claims. Indeed, in Commonwealth v. Cosenza , the Superior Court found that the evidence did "not establish that the original selection made from the first photographic array was in any way improperly conducted or that the first array's composition of photographs was unduly suggestive." (Docket No. 40-3, at 4). The Appeals Court thereafter upheld Plaintiff's conviction. See Commonwealth v. Cosenza ,
Defendants rely primarily on Echavarria and Davis v. Schifone ,
the SJC recognized the constitutional implications of Plaintiff's challenge to the identification procedure, and nevertheless ruled against him on this issue. Thus, the elements of issue preclusion are satisfied: the issue was litigated and determined by a final judgment, and the determination was essential to that judgment. Accordingly, Plaintiff is precluded form advancing any claim that [the defendant's] pretrial identification was unduly suggestive.
In this case, like in Echavarria , Plaintiff's conviction was vacated. Here, however, unlike in Echavarria , the court that granted Plaintiff a new trial subsequently granted his motion to suppress by finding that "the identification procedure here was impermissively suggestive and therefore warrants suppression of the identification evidence." (Docket No. 40-9, at 12). Thus, under the "later-in-time" rule, if any court's findings are preclusive, it is the Superior Court's finding that the identification procedures were unduly suggestive. See, e.g. , Massachusetts v. Wampanoag Tribe ,
Moreover, while the Echavarria court found that the plaintiff was precluded despite the vacation of his conviction, other courts in the Commonwealth have questioned the preclusive effect of vacated holdings. See, e.g. , Lingis v. Waisbren ,
*94reliance on Davis is misplaced. In that case, the underlying criminal conviction was never vacated.
Defendants next contend that Plaintiff is estopped from raising his Due Process claims for destruction of the chair leg, fingerprints on the window sill, or that officers fabricated the description and identification of the perpetrator. According to Defendants, Plaintiff had a "full and fair opportunity" to raise these issues pre- and post-trial in his criminal proceedings and his failure to do so precludes him from asserting them in this litigation.
Defendants are correct that Plaintiff never raised these issues in his criminal proceeding. That does not, however, preclude him from doing so now. In Fernandes v. Trias Monge , the First Circuit noted that estoppel only applies to claims "[a]ctually litigated and decided at the state criminal trial."
[T]o bar all claims that [m]ight have been raised in a criminal trial forces the criminal defendant to the uncomfortable choice between, on the one hand, possibly alienating the trial judge, particularly when the trial judge's own procedures are questioned, and delaying trial, and on the other, foregoing his constitutional claim.
b. Qualified Immunity
Defendants next argue that even if Plaintiff is not precluded from arguing his Section 1983 claims, Defendants are nonetheless protected by qualified immunity. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald ,
The First Circuit has adopted a two-part test to assess qualified immunity. Thus, a court must consider: "(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was 'clearly established' at the time of the defendant's alleged violation." Maldonado v. Fontanes ,
The second prong of the test is itself has two aspects. "One aspect of the analysis focuses on the clarity of the law at the time of the alleged civil rights violation."
When assessing qualified immunity at the motion to dismiss stage, this Court is required to "evaluate the sufficiency of the plaintiffs' pleadings. Indeed, because 'whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded,' we must scrutinize the plaintiffs' complaint to determine whether it states a plausible entitlement to relief."
Accordingly, I will begin my assessment of the qualified immunity question with the second prong of the analysis. The Supreme Court has explicitly held that unduly suggestive identification proceedings resulting in an unreliable identification of the criminal defendant violate due process. See, e.g. , Neil v. Biggers ,
Several courts have found police not entitled to immunity after utilizing suggestive procedures that procure false identifications. See, e.g. , Gregory v. Louisville ,
Plaintiff argues because it was clearly established that unnecessarily suggestive identification procedures were unconstitutional at the time of Plaintiff's case, our job is done for the purposes of this motion. "This formulation of the inquiry, however, is not sufficiently specific. An affirmative answer to [whether Plaintiff was protected against unduly suggestive identification procedures], though accurate, would state an abstract principle of law, disassociated from the facts of the case." Marrero-Mendez v. Calixto-Rodriguez ,
Under this second aspect, I again find that Plaintiff's right was clearly established. Defendants argue that their identification procedures were only found unnecessarily suggestive by the Superior Court based on new state procedures promulgated after Plaintiff's conviction and not clearly established constitutional precedent. It follows, according to Defendants that there was no clearly established law to put Defendants on notice that their conduct was unlawful. Further, Plaintiff has not cited, nor has this court identified, any case that would deem the identification procedures utilized in Plaintiff's case unnecessarily suggestive under federal law. Cf. Rojas ,
Thus, it was clearly established that the unnecessarily suggestive identification procedures were unconstitutional at the time of Plaintiff's conviction. Further, it is patently obvious that a reasonable officer would have understood that the practices utilized by Defendants fell within the scope of this proscribed conduct. Therefore, Defendants are not shielded from liability by qualified immunity.
2. Count II: Malicious Prosecution
a. Plausibility
Defendants first argue that Plaintiff has not properly pled a claim for malicious prosecution. In order to state a claim for malicious prosecution a Plaintiff must demonstrate "that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor." Almeida v. Rose ,
Defendants argue that Plaintiff cannot satisfy the second requirement, that his seizure was unsupported by probable cause. Defendants note that when Plaintiff's conviction was affirmed by the Massachusetts Appeals Courts, the court noted the corroborating evidence of Plaintiff's guilt. Thus, even if the identification procedures were unnecessarily suggestive, the other evidence sufficiently supported Plaintiff's arrest and prosecution. As noted above, however, this Court is confined to Plaintiff's Amended Complaint for the factual foundation of his claims at this stage of the litigation. See, e.g. , Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd. ,
In Plaintiff's Amended Complaint, he notes that the only other evidence supporting his guilt was the fact that he lived in M.H.'s apartment complex. Therefore, given that it is plausible that Defendants' identification procedures were unnecessarily suggestive, it is also plausible that Plaintiff's prosecution was unsupported by probable cause. He may proceed with his claim.
b. Qualified Immunity
Defendants similarly argue that they are entitled to qualified immunity from Plaintiff's malicious prosecution claims. In Hernandez-Cuevas , the First Circuit "ma[de] explicit what has long been implicit in our case law" and held that the Fourth Amendment protects the right to be free from malicious prosecution.
Defendants argue that the caselaw demonstrates Plaintiff's right was not clearly established and they are therefore entitled to qualified immunity. However, the courts in Rodriguez-Mateo and Echavarria focused their attention on whether the cause of action and not the underlying right was clearly established. I respectfully disagree with the reasoning of those courts as the relevant inquiry is whether the underlying right was clearly established at the time of Plaintiff's malicious prosecution. As the court in Davis v. Murphy recognized, "there is a difference between articulating a precise cause of action that a plaintiff may bring and establishing that certain conduct violates the Constitution."
Accordingly, I must assess whether Plaintiff's right to be free from malicious prosecution was clearly established in 2000. I find that it was. Indeed, "it has long been established that a police officer violates the Constitution by intentionally or recklessly making false statements ... or omitting true exculpatory" evidence to support a prosecution. Davis ,
The first prong of the qualified immunity analysis is also satisfied based on the pleading analysis above. Because it is plausible that Defendants' identification procedures were unnecessarily suggestive, it is also plausible that Plaintiff was prosecuted without the requisite probable cause. It follows that Plaintiff has plausibly alleged that Defendants violated his clearly established constitutional right.
*993. Count III: Conspiracy
Defendant argues that Plaintiff's conspiracy claim fails due to a deficiency of factual support for his claim. "A civil rights conspiracy ... is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principle element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damages." Estate of Bennett v. Wainwright ,
In Williams v. City of Boston , the court found a conspiracy claim plausible when the plaintiff because:
Williams has alleged facts indicating that the defendant police officers responded to the 911 calls together, were jointly involved in the investigation, intentionally pursued false criminal charges and fabricated evidence against him relating to the alleged assault and stabbing of a woman ... Thus, the essence of Williams' claims against Boyle and Kelley in this action is that they acted in concert in order to frame him for a crime which he did not commit. Under such circumstances, it is reasonable to infer that the defendants were acting pursuant to an agreement.
The same is true here. Plaintiff alleges that "as soon as Defendants learned Cosenza lived in the apartment complex, they decided that Cosenza was their suspect, they stopped looking for M.H.'s assailant, and they focused their investigation entirely on developing evidence to implicate Plaintiff in the crime." (Docket No. 4, ¶ 34). As a result, Plaintiff contends that Defendants destroyed and withheld exculpatory evidence, induced a false identification by utilizing unduly suggestive identification procedures, and conspired with one another to deprive Plaintiff of his constitutional rights. Plaintiff will eventually have to demonstrate that a conspiracy existed by a preponderance of the evidence to prevail, but for now he must only show that a conspiracy is plausible, and it is.
*1004. Count IV: Failure to Intervene
Defendants again argue that they are entitled to qualified immunity. According to Defendants, a claim for failure to intervene has been clearly established in the context of an excessive use of force but not for failure to intervene in a different due process violation.
Defendants are correct that "First Circuit cases have primarily, if not exclusively, concerned allegations of failure to intervene in the excessive force context." Echavarria ,
Plaintiff again contends that Defendants' reasoning circumvents the relevant inquiry. In Plaintiff's view, a failure to intervene claim is merely a pathway to liability. According to Plaintiff, the relevant inquiry is whether the underlying right was clearly established. As discussed above, Plaintiffs underlying constitutional *101rights that were allegedly violated were indeed clearly established at the time of his prosecution. The First Circuit, however, seems to have suggested that the duty to intervene in the context at issue must have also been clearly established. In Torres-Rivera , for instance, the First Circuit held that an officer was not entitled to qualified immunity in the excessive force context that "the law was clearly established in 1998 that an officer in O'Neill' s circumstances had a duty to intervene."
5. MTCA Immunity
Defendants finally argue that they are entitled to immunity under the Massachusetts Tort Claims Act ("MTCA"). Courts have recognized, however, that "chapter 258 [of the MTCA] does not displace the town's liability under section 1983." Doe v. Town of Plymouth ,
Conclusion
For the reasons stated above, Defendants' motion to dismiss (Docket No. 39) is granted with respect to Count IV as Defendants are entitled to qualified immunity. Otherwise, Defendants' motion is denied.
SO ORDERED
Notes
Defendant argues that this court should take judicial notice of both the Worcester Police Report and the factual findings in past court proceedings. Regarding the police report, Defendant argues that Plaintiff incorporates the police report by reference to his Amended Complaint. I find, however, that the report is not "sufficiently referenced" in Plaintiff's Amended Complaint to warrant incorporation. Freeman v. Hudson ,
Further, several circuit courts have held that the underlying criminal litigation has no preclusive effect post-exoneration in subsequent Section 1983 litigation for wrongful conviction. See Evans v. Katalinic ,
While courts often avoid the first prong of the qualified immunity test at this stage in the litigation, the necessity to define the clearly established right with particularity has blurred the distinction in this case between the first prong and the second aspect of the second prong of the qualified immunity analysis. Thus, it is worth noting that at this stage in the litigation, Plaintiff has demonstrated that the facts alleged plausibly make out a violation of a constitutional right.
Further, several circuit courts have described failure to intervene claims in broad language that seems to go beyond excessive force cases. See, e.g. , Randall v. Prince George's Cty. ,
It may seem inconsistent that the Court finds qualified immunity unavailable to Defendants for Plaintiff's malicious prosecution claim but available here. In both circumstances, Plaintiff rightly argued that an underlying, and clearly established constitutional right was violated. For Plaintiff's malicious prosecution claim, however, what was missing was merely the cause of action. Thus, a reasonable officer would have known that his conduct violated Plaintiff's rights. In the context of the failure to intervene, however, not only was a pathway to liability potentially absent but also a clearly established duty to intervene. Therefore, it would not be sufficiently clear to a reasonable officer that his omission in failing to intervene would constitute a violation of Plaintiff's clearly established underlying right.